vs. State of Bihar and another [2013 14 SCC 461], the
nature and scope of powers of the Court under the said
provisions has been explaining and enumerated in
detail and it was held that such powers can be
exercised at any stage, but the paramount
consideration should always be of just decision of the
case.
6. Therefore, the centripetal consideration for
exercise of powers for calling or recalling of the
witnesses at any stage of the trial, is that the same
is to help the Court to reach a just decision in the
case. In order that the Court is able to come to a
conclusion that witness proposed to be examined or reexamined
is necessary to be examined or reexamined
for the purpose of reaching a just decision in the
case, the applicant making such application before the
Court is required to spell out in its application the
relevance of the witness’s evidence needed to be
adduced by calling him or recalling him for
examination. The pleadings has to contain the related
facts, though may be broadly yet, precisely indicating
the reason and context in which the witness is called
for. In an application made under Section 311, Cr.PC,
unless the facts, pleadings and averments meet with
those essential requirements, it may not be possible
to judge the prayer in right perspective.
6.1 Measured by above yardstick, in the facts and
circumstances of the case, the application made by the
prosecution, was with inadequate, if not cryptic,
pleadings as regards role and relevance of each of the
witnesses proposed to be called for examination. The
application appears to have been made in cursory way,
at least in that regard. Witness No.6 was dropped
stating in the endorsement below the application that
the applicant was not willing to examine him. In any
view, the application could not be said to be
revealing relevant facts attendant to each witness
because of which prosecution wanted to call him for
examination. The pleadings in the application of the
prosecution was laconic in terms of requisite facts
and aspects so as to bring out necessary ingredient
that the examination of the said witnesses was
necessary for a just decision in the case, the
prosecution ought to have spelt out the relevant
details in the above context with regard to each of
the witnesses.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION
RAJESHKUMAR BABULAL PATEL
V
STATE OF GUJARAT
CORAM: MR.JUSTICE N.V.ANJARIA
Date : 15/04/2015
Citation; 2015CRLJ(NOC)493 GUJ
The applicantoriginal accused has filed the
present Revision Application against order dated
15.04.2014 passed by learned Additional Sessions
Judge, Court No.7, City Civil and Sessions Court,
Ahmedabad, whereby the Court allowed application below
Exh.196 filed by the prosecution under Section 311 of
the Code of Criminal Procedure, 1973 for summoning of
certain witnesses.
2. It appears that First Information Report being
C. R. No. I 365 of 2008 came to be registered on
09.12.2008 before the Shahibaug Police Station against
the applicant and another person for the alleged
offence punishable under Sections 365 and 114 of the
Indian Penal Code, 1860. The Investigating Agency
after investigation, submitted chargesheet for the
offence punishable under Sections 302, 307, 364B ,
365, 342, 120B and 201, IPC. The charge came to be
framed against the present applicant and other accused
on 20.01.2012 at Exh.40. It was stated that while the
applicant herein was released on bail, other accused
being original accused No.1 is an undertrial prisoner.
3. In the proceedings of Sessions Case No. 262 of
2009 registered against the applicant, on 04.03.2014,
the prosecution filed an application Exh.196 under
Section 311, Cr.PC, praying that it wanted to examine
certain witnesses. Seven persons were named as
witnesses whom the prosecution wanted to call for
examination. It was the case of the prosecution that
those witnesses were not mentioned in the chargesheet,
but they were necessary to be examined. At the
time when said application was filed, 48 witnesses
were examined.
4. Learned advocate Mr. Hardik A. Dave for the
applicant submitted that examination of none of the
witnesses named was necessary for a just decision of
the case. It was submitted that the witnesses sought
to be examined as panchwitnesses was a futile request
inasmuch panchnama was exhibited and other panchas
were examined. It was submitted that in respect of one
of the witnesses proposed to be called for
examination, earlier application is already pending.
It was submitted that the entire application was abuse
of process of law and suffered from non application
of mind. Learned advocate highlighted the attendant
details about each of the witnesses named for
examination which were highlighted in the pleadings,
(i) The first witness, prosecution wanting
to examine, is one Shri Hardikbhai Rameshchandra
Kadia. Applicant states that said witness is
Photographer and Videographer, who had done
videography of the scene of offence panchnama
drawn at the instance of original accused No.1.
The panchnama of scene of offence is already
exhibited at Exh.107. Panchwitnesses of said
panchnama was also examined at Exh.106 and
Exh.108. Another scene of offence panchnama drawn
at the instance of First Informant is also
exhibited at Exh.68 at the time of deposition of
panch (Exh.67).
(ii) Second witnessShri Laxmanbhai Kalubhai
is mentioned as panchwitness in the application,
but there is no such panchwitness.
(iii) Third witnessJayendrasinh who is shown
as panchwitness in the application, in whose
respect application(Exh.89) for the purpose of
examining said witness, is already pending and
without pressing said.
(iv) Fourth and fifth witnesses, prosecution
wanted, are Shri Ajaysinh Keshaji Thakor and Shri
Pratik Sajankumar Goyenka narrated as panchwitnesses
in the application. These witnesses are
panchwitnesses of the panchnama drawn by the
Shahibaug Police Station for mudddamal which was
recovered by the Mansa Police Station, is already
exhibited.
(v) Sixth witness which prosecution proposed
to be examined is one Jitendra Dilipbhai Makwana
who by subsequent endorsement, is dropped.
(vi) Laxmanbhai Kalubhai who is shown as ASI
in the application is formal witness and has
collected medical samples for the purpose of
examination. Applicant states that it is required
to be noted that said witness is also shown at
Sr. No. 2 of the application as panch witness.
(vii) Witness Nos. 8 and 9 are hearsay
witnesses and they in their respective
statements, stated that they came to know about
the incident from Chokidar who was examined vide
Exh.70.
4.1 Learned advocate for the applicant submitted
that in light of the above facts, there was no merit
in the above prayer. He submitted that it is well
settled that the powers under Section 311,Cr.PC, would
be exercised to call witness/s for examination or reexamination,
provided it is necessary for a just
decision of the case. It was submitted that this basic
ingredient was not shown to have been satisfied,
therefore, the impugned order lacked legality and
propriety.
4.2 On the other hand, learned Additional Public
Prosecutor Mr. K. P. Raval submitted that the
witnesses were found to be necessary to be examined,
though they were not mentioned in the chargesheet. He
submitted that some of the witnesses were panchwitnesses
and required to be examined. It was further
submitted that the case was based on circumstantial
evidence. Learned APP further submitted that no
prejudice would be caused to the other side since it
would have an opportunity to crossexamine those
witnesses. Learned APP submitted that the powers of
the Court under Section 311, Cr.PC, are wide and the
Court has rightly exercised discretion allowing the
application of the prosecution. Learned APP emphasized
that the examination of all the witnesses is necessary
for arriving at a just decision in the case which is
an underlying object of the provisions of Section 311,
Cr. PC.
5. The Apex Court in Hanuman Ram vs. State of
Rajasthan [2008 15 SCC 652], examining the nature and
extent of powers vested in the Court under Section
311, Cr.PC, observed and held that the object was to
prevent failure of justice on account of mistake of
either party to bring on record valuable evidence or
leaving an ambiguity in the statements of witnesses.
It was observed,
“The determinative factor is whether it is
essential to the just decision of the case. The
section is not limited only for the benefit of
the accused, and it will not be an improper
exercise of powers of the court to summon a
witness under the section merely because the
evidence supports the case of the prosecution and
not that of the accused. The section is a general
section which applies to all proceedings,
enquiries and trials under the Code and empowers
the Magistrate to issue to any witness at any
stage of such proceedings, trial or enquiry. In
Section 311 the significant expression that
occurs is “at any stage of any inquiry or trial
or other proceedings under this Code.” It is,
however, to be borne in mind that whereas the
section confers a very wide power on the court on
summoning witnesses, the discretion conferred is
to be exercised judiciously, as the the wider the
power the greater is the necessity for
application of judicial mind.”
5.1 In a more recent decision in Rajaram Prasad Yadav
vs. State of Bihar and another [2013 14 SCC 461], the
nature and scope of powers of the Court under the said
provisions has been explaining and enumerated in
detail and it was held that such powers can be
exercised at any stage, but the paramount
consideration should always be of just decision of the
case.
6. Therefore, the centripetal consideration for
exercise of powers for calling or recalling of the
witnesses at any stage of the trial, is that the same
is to help the Court to reach a just decision in the
case. In order that the Court is able to come to a
conclusion that witness proposed to be examined or reexamined
is necessary to be examined or reexamined
for the purpose of reaching a just decision in the
case, the applicant making such application before the
Court is required to spell out in its application the
relevance of the witness’s evidence needed to be
adduced by calling him or recalling him for
examination. The pleadings has to contain the related
facts, though may be broadly yet, precisely indicating
the reason and context in which the witness is called
for. In an application made under Section 311, Cr.PC,
unless the facts, pleadings and averments meet with
those essential requirements, it may not be possible
to judge the prayer in right perspective.
6.1 Measured by above yardstick, in the facts and
circumstances of the case, the application made by the
prosecution, was with inadequate, if not cryptic,
pleadings as regards role and relevance of each of the
witnesses proposed to be called for examination. The
application appears to have been made in cursory way,
at least in that regard. Witness No.6 was dropped
stating in the endorsement below the application that
the applicant was not willing to examine him. In any
view, the application could not be said to be
revealing relevant facts attendant to each witness
because of which prosecution wanted to call him for
examination. The pleadings in the application of the
prosecution was laconic in terms of requisite facts
and aspects so as to bring out necessary ingredient
that the examination of the said witnesses was
necessary for a just decision in the case, the
prosecution ought to have spelt out the relevant
details in the above context with regard to each of
the witnesses.
7. In the aforesaid view, the impugned order is
quashed, however, with a liberty to the applicant that
it would be open for the prosecution to file another
similar application with necessary details, pleadings
and averments justifying the prayer. Such application
shall be made, if advised, within period of 3(three)
weeks from today. If the application as above is made,
the learned Judge shall consider and decide the same
on its merits and in accordance with law. In
considering the application which may be filed by the
prosecution afresh, the Court shall decide the same
within a period of 6(six) weeks from the date of the
application which may be made by the prosecution
pursuant to this order, without being influenced by
this order or by earlier order impugned in the
petition. This Court has not gone into merits of the
case and this order is not in any way reflective of
merits of the case of either side in relation to the
prayer in question.
8. Rule is made absolute.
(N.V.ANJARIA, J.)
chandrashekhar
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