Sunday, 27 December 2015

Material contents required to be stated in application for calling witness for examination or his re-examination

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.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 283 of 2014

RAJESHKUMAR BABULAL PATEL....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)

CORAM: HONOURABLE 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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