2003 Supreme(Guj) 715

Gujarat High Court
Judgename :B.J.Shethna, J.R.Vora
STATE OF GUJARAT - Appellant
Versus
RAJUBHAI DHAMIRBHAI BARIYA - Respondent
CRIMINAL APPEAL 956 of 2003
Decided On : 12/26/2003

Headnote:Criminal Appeal No. 956 of 2003 with Criminal Misc. Application Nos. 7677 & 9825 of 2003, decided on 26th December, 2003. - Decided on 26th December, 2003

       (a) Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sec. 378 - Appeal - Pendency of SLP - Merely because the case is pending before the Apex Court that fact itself should not debar the Court from hearing and deciding the State appeal specially when Apex Court itself has kept the question open regarding the maintainability of such appeal before it.

       When the matter filed by NHRC against the judgment and order of acquittal passed by the trial Court is pending before the Honble Supreme Court, and the Honble Supreme Court itself has kept the question open regarding the maintainability of such appeal before it, then, it would not be proper on our part to express any opinion about the contention raised by learned senior Advocate on locus standi of NHRC.

       It is true so far the Honble Supreme Court has not adjudicated the question, whether such SLP before it against the impugned judgment and order of the trial Court is maintainable or not? However, the Court is of the considered opinion that merely because the case is pending before the Apex Court, that fact itself should not debar us from hearing and deciding the State Appeal.

       [Para 1]

       (b) Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sec. 386(1) - Retrial - Powers to order - Scope of - Exercise of power under to order retrial is limited to prevent miscarriage of justice and correction of manifest illegality - Statements made by certain witnesses subsequent to the pronouncement of the judgment that they were threatened, therefore, they had turned hostile of prosecution before the Court cannot be basis to order retrial - No importance can be given to such statements otherwise trial before the trial Court would stand nugatory and nothing more then mockery of justice.

       As an Appellate Court under Sec. 386 of the Code, this Court can always order retrial, provided there is a case for retrial, otherwise not. Honble Supreme Court has time and again said that more restrain is necessary when you have wide powers and the Court should be slow in exercising its wide powers.

       [Para 5]

       On 17.5.2003, in all three witnesses including Zahirabibi were examined. Out of three witnesses, one was injured. It may be stated that if they were really threatened by any one prior to the recording of their evidence, then, they would have definitely complained about it at least to someone, but that is not the case. As stated earlier, it was very much doubtful whether the witnesses had ever made their statements before the Police or not? Zahirabibis statement recorded on 2.3.2002 is in Gujarati and the same was treated as FIR by the police, therefore, her signature was obtained below the same without reading it over and explaining the same to her in Gujarati. Zahirabibi has simply admitted her signature below her so called complaint, but she has clearly denied the contents of it. The Court is also not prepared to believe that she was threatened, therefore, she turned hostile because she deposed before the Court on 17.5.2003. Trial continued thereafter and the learned trial Judge pronounced the judgment only on 27.6.2003 after more than a period of one month. It is to be noted that immediately on the next day of the pronouncement of judgment, this witness Zahirabibi had made the statement that she was threatened, therefore, she had turned hostile before the Court. The Court has serious doubt about it. If she can make such statement on the next day after the judgment was pronounced, then the question is, why she had not stated so till 27.6.2003 till the judgment was pronounced? When she turned hostile on 17.5.2003. There seems to be a definite design and conspiracy to malign the people by misusing this witness Zahirabibi, who is hardly 19 years old. She can easily fall in prey of anyone and play in the dirty hands of anti-social and anti-national elements.

       One thing is clear that from the date of her deposition before the Court on 17.5.2003 till the judgment was pronounced by the learned Judge on 27.6.2003, she had not made grievance or complaint to anyone about the threat administered to her at the time of deposition before the trial Court. It is only after one English Daily Newspaper Indian Express people reaching Zahira after the pronouncement of judgment, she came out with a case that she was threatened at the time of her deposition, therefore, she could not speak the truth before the Court. Wheels move very fast thereafter. On the third day of the pronouncement of judgment of the learned trial Judge, Zahira was out of State and on the public platform in presence of others she reiterated about the threat administered to her. From all these, we have reasonable apprehension in our mind that there is a deep-rooted conspiracy of misusing this witness Zahira, victim of the unfortunate incident, by some people, with an ulterior motive, and unfortunately poor people, like Zahira and others, have easily fallen in their prey.

       [Para 7]

       (c) Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Secs. 9(6) & 327(1) - Trial in camera - Requirements - Court must be of the opinion that it would tend to the general convenience of the parties and witnesses - Also there must be consent of the prosecution and/or the accused persons - In the facts of the case there was nothing on the record to form such opinion by the learned Judge and to seek consent of parties to hold trial in camera.

       Under Sec. 9(6) of the Code, what is required by the Sessions Court to see the general convenience of the parties and witnesses to hold its sitting at any other place in the Sessions Division than the place notified by the High Court, and that too, with the consent of the prosecution and/or the accused.

       It is clear that first requirement under Sec. 9(6) of the Code is that the learned Sessions Judge must be of the opinion that it would tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the Sessions Division than the place notified by the High Court. There was nothing on the record to form such opinion by the learned Judge to hold the trial in camera. The word used in Sec. 9(6) of the Code that the Sessions Court may hold its sittings at any other place in the Sessions Division, if it is of the opinion that it will tend to the general convenience of the parties and witnesses, then only with the consent of the prosecution and/or the accused persons it can have trial at any other place. Thus, even if the learned Judge was of such opinion to hold the trial in camera, then also, without the consent of the prosecution or the accused persons, he could not have done it. The learned trial Judge is also bound to act in accordance with law as provided under Sec. 9(6) of the Code.

       It is clear from the bare reading of Sec. 327 of the Code that the cases should be tried in an open Court but in an exceptional case if the Presiding Officer of the Court thinks it fit, then only he may decide to hold the trial in camera, otherwise not. As stated earlier, in the instant case, there was nothing on which the learned trial Judge could have even thought it fit to hold the trial in camera.

       [Para 8]

       (d) Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sec. 311 - Re-examination - Scope of - Court can summon and re-examine any witness provided it appears essential to Court for just decision of the case - In the instant case when witnesses have already turned hostile Court rightly held their re-examination not essential - There was no necessity for the Court to invoke provision under Sec. 311 to recall and re-examine them.

       The learned trial Judge had wide power under Sec. 311 of the Code to recall and examine any witnesses if his evidence appears to him to be essential for the just decision of the case. But in the instant case, all the eye-witnesses had clearly stated before the Court that they had never made any statements before the police and thereby resiled from their earlier so called statements recorded by the police. When the evidence of the witnesses who have been already turned hostile, does not appear to be essential to the learned Judge for arriving at just decision of the case, then there was no question of the learned Judge exercising his power under Sec. 311 of the Code.

       [Para 10]