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Gujarat High Court
Judgename :C. K. BUCH
SHEIKH MADINABIBI MUSTAFABHAI - Appellant
Versus
STATE OF GUJARAT - Respondent
CRIMINAL REVISION APPLICATION94 of 2004
Decided On : 10/12/2004
It is true that in a case instituted on a police report, a victim and/or original complainant have no substantive right to address the Court or to participate in the proceedings as prosecutor, but it has been held by the Apex Court, that a private party can prefer an application seeking appropriate relief and such application can sustain if the private party is able to satisfy the Court that it is necessary to prevent substance and miscarriage of justice.
[Para 11]
Here in the case on hand, ld. Spl. PP incharge of the sessions case, has taken the cause of justice and supported the complainant. For short, the Court is not inclined to accept the technical resistance placed by the respondent accused that the present application needs to be dismissed on the point of locus and the submission that this Court should not exercise revisional jurisdiction on an application made by a private party, is also not found acceptable. [Para 12]
(b) Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sections 397(1) & 397(2), 225, 301(2) & 311 - Recall of witnesses - Refusal - Order of - Revision against - Maintainability - Contention that impugned order being interlocutory order revision against such order is not maintainable has no substance and cannot be accepted - It has already been held by this Court that order under Section 311 is not an interlocutory order and therefore, revision against was maintainable against the order rejecting the application to recall the prosecution witnesses for cross-examination - Court observed that Section 311 is an independent provision as some other provisions in Chapter 24 - Court did not accept the contention that aggrieved party after final decision can agitate the contention before appellate Court if it has resulted into prejudice to either partly.
It is important for the purpose of the present judgment to note that this Court, while dealing with the case of Rajesh Chandubhai & Ors. vs. State of Gujarat, 2001 (3) GLR 1979, has held that the order under Section 311 of the Code is not an interlocutory order and revision is maintainable against the order rejecting the application of defence to recall the prosecution witnesses for cross-examination. The Court was dealing with Rev. Application filed by the original accused challenging the order passed by ld. Single Judge whereby the request to recall the prosecution witness examined earlier was rejected. It is important to note that Section 311 is an independent provision as some other provisions in Chapter 24 captioned "General Provisions as to Inquiry & Trial". However, the logic placed before the Court by the Court that the grievance can be made before the appellate Court after final conclusion of the trial by the aggrieved party and if the appellate Court finds that during the process the trial Court has committed a grave error and the same has resulted into prejudice to either party, the appellate Court can correct that error at that particular stage.
Cases Referred :
Koli Nana Bhana & Ors. vs. State of Gujarat, 1984 GLH 1055;; Kharad Vallabhbhai Savaji & Ors. vs. State of Gujarat, 1995 (2) GLR 1365;; Chandrasinh @ Chandubha Lalubha vs. State of Gujarat, 2002 (2) GLR 960;; State of Bihar vs. Lalu Prasad alias Lalu Prasad Yadav, AIR 2002 SC 2432;; Rajendra Prasad vs. Narcotic Cell through its Officer-in-Charge, Delhi, AIR 1999 SC 2292;; Ashwinbhai Shambhu Prasad vs. National Rayon Corporation, 24 (1) GLR 522;; Patel Varyabhai Jesangdas vs. State of Gujarat & Anr., 1986 (1) GLR 538;; Somasundaram vs. P. Chandra Bose & Anr., 2001 CrLJ 4370;; Manharlal I. Shah vs. Yogeshkumar Kanaiyalal Saraiya & Ors., 1987 (1) GLR 608;; A.R. Antulay vs. R.S. Nayak, AIR 1984 SC 718;; Tarachand & Ors. vs. State of Rajasthan, 1997 CrLJ 2637;; K. Chinna Swami Reddy vs. State of Andhra Pradesh, AIR 1962 SC 1788;; Abhilasha & Ors. vs. State of Rajasthan & Ors., 2000 (1) SCC 237;; Thakur Ram vs. State of Bihar, AIR 1966 SC 911;; Somasundaram vs. P. Chandra Bose & Anr., 2001 CrLJ 4370;; Manharlal I. Shah vs. Yogeshkumar Kanaiyalal Saraia & Ors., 1987 (1) GLR 608 = 28 (1) GLR 601;; Smith vs. Cowell, 6 QBD 75;; V.C. Shukla vs. State through CBI, AIR 1980 SC 962;; Rajesh Chandubhai & Ors. vs. State of Gujarat, 2001 (3) GLR 1979;; V.M. Abdul Raheman & Ors. vs. D.K. Cassim & Sons & Anr., AIR 1933 PC 58;; S.K. Mahajan and etc. vs. Municipality, Jammu & Ors., etc., 1982 CrLJ 646;; Umed Singh & Ors. vs. Devi Singh & Ors., 1985 (1) Crimes 121;; Dwarkadas vs. State of H.P., 1980 CrLJ 1018;; Amar Nath & Ors. vs. State of Haryana & Ors., AIR 1977 SC 2185;; State of Gujarat vs. Gaurang Mathurbhai Leuva & Ors., 1999 (3) GLR 2325;; K.K. Patel & Anr. vs. State of Gujarat & Anr., 2000 (4) GLR 3599;; Mohanlal Shamji Soni vs. Union of India, AIR 1991 SC 1346;; Cheeku Singh vs. State of Rajasthan, 1998 (1) Crimes 622 (Raj);; G.H. Aiyer vs. State, 1998 CrLJ 1821 (Ori);; Pradeep Kumar Agarwal vs. State, 1995 (1) Crimes 390;; Shudhir Das vs. State of West Bengal, 1996 CrLJ 813;; R. Krishna Murthy vs. State, 1997 CrLJ 152;; Zahira Habibulla H. Sheikh & Anr. vs. State of Gujarat & Ors., 2004 (4) SCC 158;; Jamatraj Kewalji Govani vs. State of Maharashtra, AIR 1968 SC 178;; Mir Mohd. Omar & Ors. vs. State of West Bengal, AIR 1989 SC 1785;; Ajit D. Padiwal vs. State of Gujarat & Ors., 1998 (2) GLR 1182;; Gullapalli Nageshwararao & Ors. vs. State of Andhra Pradesh, AIR 1959 SC 1376.
( 1 ) THE petitioner-original complainant has moved this Court by filing Cri. Rev. Application No. 94/2004 invoking jurisdiction of this Court under Sec. 397 R/w Sec. 401 of The Code of Criminal Procedure, 1973 (hereinafter referred to as Crpc), challenging the order passed by ld. Addl. Sessions Judge, Fast Track Court of District Panch Mahals at Godhara dated 20. 1. 2004 passed below application Exh. 156 in Sessions Case No. 160/2002 and Sessions Case No. 59/2003. On perusal of certified copy of the application exh. 156 submitted in the proceedings of above-referred two Sessions Cases, it emerges that by pointing out certain irregularities and infirmities, the complainant requested the Court to recall Seven witnesses examined by the prosecution invoking the powers vested with the Court under Sec. 311 of Crpc. In the relief clause para-10 of the application exh. 156, the complainant prayed for recalling of following seven witnesses and also simultaneously prayed that their depositions may be recorded in light of the contentions raised in the application. These witnesses are:- (i) P. W. 2 Chandubhai Shankarbhai (ii) p. W. 3 Rameshbhai Chandubhai Nayak (iii) p. W. 4 Nanabhai Kalubhai Harijan (iv) p. W. 7 Hunedbhai Junedi Dahodwala (v) p. W. 8 Babubhai Fulabhai. (vi) p. W. 12 Kantibhai Madabhai. vii) p. W. 13 Bharatbhai Budhabhai.
( 2 ) (I) it is not a matter of dispute that the petitioner is the only complainant of the offence registered with Kalol Police Station of District Panch Mahals being CR No. I. 41/2002 on 3rd March 2002. The complaint discloses various offences punishable under Indian Penal Code and also offence punishable under Sec. 135 of the Bombay Police Act. After registration of offences punishable under sections 143, 147, 148, 149, 392, 397, 153 (A), 201, 436, 120 (B) of Indian Penal Code, the police also added one more offence punishable under Sec. 376 of Indian Penal Code. (II) initially, a group of accused was chargesheeted and the criminal case registered against them was committed to the Court of Sessions and the same was registered as Sessions Case No. 160/2002. Thereafter, a supplementary chargesheet came to be filed against one another group of accused persons for the same crime and Sessions Case No. 59/2003 is registered against other group committed on account of that chargesheet. Accused of both the Sessions Cases are facing consolidated trial for the charges levelled against them. It is told that the evidence is recorded as per the proceedings drawn in Sessions Case No. 160/2002. (III) the prosecution has produced certain documents along with list exh. 20 as provided under Sec. 294 of Crpc. Many of these documents have been accepted in evidence without formal proof on admission as provided in the said Section. When the Court was proceeding with the trial, the petitioner found that material irregularities have been cropped up because of certain inactions on the part of either the Court and/or of ld. Special Public Prosecutor ( ld. Spl. PP for short ). In paras 5, 6, 7 and 8 of the application exh. 156, the petitioner attempted to point out some of such irregularities and infirmities that may result into serious prejudice to the case of the prosecution and it was submitted before the trial Court placing reliance on the decisions namely (i) Koli Nana Bhana and Ors. v/s State of Gujarat, 1984 GLH 1055, (ii) Kharad Vallabhbhai Savaji and Ors. v/s State of Gujarat, 1995 (2) GLR 1365, and (iii) Chandrasinh @ Chandubha Lalubha v/s State of Gujarat, 2002 (2) GLR 960, that it is the duty of the trial Court to ensure that the attention of all the witnesses named in the application exh. 156 is drawn to each fact stated by them in their respective police statements and if required, the witnesses should be appropriately contradicted or confronted. Unless that contradictions or omissions are brought on record, they can not be legitimately proved which may result into serious prejudice to the prosecutio
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