Gujarat High Court
Ismile Dadabhai Jakhra & 5 vs State Of Gujarat & on 1 October, 2015
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/CR.RA/383/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 383 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI sd/-
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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ISMILE DADABHAI JAKHRA & 5....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR YOGESH LAKHANI, SENIOR ADVOCATE WITH MR PRAVIN
GONDALIYA, ADVOCATE for the Applicant(s) No. 1 - 6
MX MOXA THAKKAR APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 01/10/2015
ORAL JUDGMENT
Page 1 of 6
HC-NIC Page 1 of 6 Created On Tue Oct 06 01:49:10 IST 2015 R/CR.RA/383/2014 JUDGMENT The revision application questions the order dated 24/06/2014 passed below Exhibit98 in Sessions Case No.13 of 2013 whereby the application of the petitionersoriginal accused Nos.1,3,4,6,7,8 and 13 to examine the witnesses in their presence came to be rejected after noting the noncooperation of the said accused or their learned Counsel.
2. It is not necessary to elaborate the facts of the case. Suffice it to say that grievance of the petitioners is in relation to 21/03/2014 when an eye witnessSarfaraj came to be examined. The Rojkam produced alongwith R & P of 21/03/2014 indicates that original accused No.8, who is one of the applicants herein, could not be produced by jail authorities, before the Court below. The impugned order also reveals that he was identified on the basis of his photograph in chargesheet papers.
3. Learned Counsel for the petitioners would contend that identifying an accused by an eyewitness, on the basis of photograph was impermissible and illegal. Relying upon Section 273 of the Code of Criminal Procedure (for short Cr.PC), it is contended that the provision mandates the examination of the witnesses, in presence of the accused unless otherwise provided elsewhere in other provisions. Referring to Section 317 of Cr.PC., learned Counsel would argue that the powers under the said provision were exercisable only in the eventuality of the attendance of the accused being felt unnecessary in the interest Page 2 of 6 HC-NIC Page 2 of 6 Created On Tue Oct 06 01:49:10 IST 2015 R/CR.RA/383/2014 JUDGMENT of justice or the causation of persistent disturbance by the accused. It is argued that none of the said contingencies were recorded by the learned Judge while passing the impugned order and thus the provisions of Section 317 of Cr.PC were not invoked.
3.1 Relying upon Section 309 of Cr.PC learned Counsel for the petitioners would contend that the adjournment of the case was permissible, if the circumstances beyond the control of the accused prevented him from appearing in the Court and in the instant case accused No.8 was concededly in jail and thus was under the control of the jail authorities and it was not his fault that he could not be produced by the jail authorities on that day.
4. Learned APP would support the impugned order while emphasizing upon noncooperation of the accused and their learned Counsel as recorded in the impugned order. She would contend that after committal of the case on 05/01/2013 so far only four witnesses could be examined. Because of noncooperation of the accused, the trial is prolonged and therefore the trial Court was within its right to proceed with the matter under Section 309 read with Section 317 of Cr.PC and thus identification of the accused by the witness on the basis of the photographs affixed on the chargesheet was proper and legal.
5. Having considered the rival contentions, it clearly transpires from Section 273 of Cr.PC that Page 3 of 6 HC-NIC Page 3 of 6 Created On Tue Oct 06 01:49:10 IST 2015 R/CR.RA/383/2014 JUDGMENT normally, unless otherwise permissible in any other provisions, the evidence should be taken in the presence of the accused unless his personal presence is dispensed with, in the presence of his pleader. True that, Section 309 of Cr.PC contemplates speedy trial and makes provisions in that regard, but it also takes into consideration the circumstances beyond control of the party as a good reason for adjournment of the case. Further, as rightly contended by the learned Counsel for the petitioners, Section 317 of Cr.PC can be invoked only in the eventuality of the Court deeming presence of the accused unnecessary or finds causation of persistent disturbances by the accused. That was not the prosecution case neither are the findings recorded under Section 317 of Cr.PC.
6. The findings recorded by the learned trial Court are in relation to noncooperative attitude of the accused. In the opinion of this Court, as far as the disputed date on which in absence of the accused No.8, eyewitness identified him on the basis of photograph affixed with the chargesheet, is concerned, the consideration of noncooperative attitude of the accused, more particularly, accused No.8 was irrelevant; inasmuch as, it cannot be disputed, if the Rojkam of that date is taken into consideration, that it is the jail authorities who failed to produce him in the Court and the accused was not at fault. This, in the opinion of the court was the circumstance beyond the control of the accused and therefore interest of justice required the Page 4 of 6 HC-NIC Page 4 of 6 Created On Tue Oct 06 01:49:10 IST 2015 R/CR.RA/383/2014 JUDGMENT postponement of the case as indicated in Section 309 of Cr.PC. The trial Court appears to have swayed by the fact that on the dates of hearing preceding the date in question, the accused persons were non cooperative and because of such noncooperation trial was delayed. As indicated above, that was irrelevant consideration so far as the disputed date is concerned.
7. Identification of the accused by the eye witness is the most crucial and important stage because when the accused is identified, he may or the Court may note his demur or there may be an occasion for the accused to address the Court or to give instructions to his lawyer or even the Court may confirm from him his personal details to ensure his correct identification. The ultimate judgment also may rest on the identification of the accused which is one of the most important consideration. That apart, when Section 273 is clear and prescribes recording of the evidence in the attendance of the accused, no other procedure i.e. identification through photographs, can be resorted to.
8. The grievance of the prosecution as regards noncooperation of the accused is met with by the learned Counsel for the petitioners, who makes a statement that the accused would cooperate with the trial and would not seek any unnecessary adjournments. It appears that FIR was lodged in the year 2012 and after committal in January, 2013 for more than two and Page 5 of 6 HC-NIC Page 5 of 6 Created On Tue Oct 06 01:49:10 IST 2015 R/CR.RA/383/2014 JUDGMENT half years there has been very slow progress and only six witnesses out of large number of witnesses could be examined. Therefore, it will not be out of place to observe that the accused will cooperate with the trial and the learned trial Judge will expedite the trial and unless case to proceed in absence of the accused is made out in accordance with law, the learned trial Judge would not conduct the trial in absence of the accused.
9. In above view of the matter, the impugned order cannot be sustained and is quashed and set aside. The proceedings of the case in question will now be held in terms of this order. R & P be immediately sent back to the trial Court.
10. Rule is made absolute to the aforesaid extent.
(G.R.UDHWANI, J.) sompura Page 6 of 6 HC-NIC Page 6 of 6 Created On Tue Oct 06 01:49:10 IST 2015