Back
2011 (2) GCD 1512 (Guj)
Hon’ble Ms. Justice Sonia Gokani
Shyamnarayansingh Rampalatsingh Khera & Ors.
Versus
State of Gujarat
Special Criminal Application No. 2057 of 2007—Decided on 04/03/2011
Prevention of Corruption Act — Sections 7, 12 and 13(2) — Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sections 311 and 482 — [Indian] Evidence Act, 1872 (Central Act 1 of 1872) — Section 154 — Recalling the prosecution witness — Original complainant — Application for made much after examination-in-chief or cross-examination — Order of trial Court allowing the application — Sustainability — Law essentially permits the party which calls the witness to seek permission of the Court as envisaged under Section 154 of the Evidence Act at any stage of examination — The provision allowed discretion to the Court to permit the party calling a witness to put such questions in the nature of cross-examination even at the stage of re-examination and the essential condition laid is that the adverse party necessarily should be availed further opportunity to cross-examine such a witness on answers elicited by such examination and in such circumstances no prejudice should be caused to other side — No time limit since is set in exercise of powers under Section 311 of the Code the same can not be incorporated — It is true that Public Prosecutor ought to have been more vigilant and prompt but if he choose not to so act that may no preclude his incumbent to request for the same — While upholding the right of petitioner accused to further cross-examination of witness Court refused interference of the impugned order of Special Judge.
Held :
The cross-examination conducted after one week of examination-in-chief brings on record new details including of not having met two out of the three accused prior to the date of raid. Thus, the witness appears to have taken further Volte face during the cross-examination which would otherwise permit request of re-examination by the prosecution. As it is done at the delayed stage of the four months, order is attacked. No time limit since is set in exercise of powers under Section 311 of Code of Criminal Procedure and therefore the same cannot be incorporated or read thereby limiting the discretionary rights of trial Court Special Court committed no error in exercising its discretion in recalling the witnesses for just decision of the case as also in permitting cross-examination of complainant who tried not to support the case in same way in chief-examination also during cross-examination. Concerned Public Prosecutor ought to have been more vigilant and prompt but if he chose not to so act, that may not preclude his incumbent to request for the same. While upholding the right of petitioner – accused to further cross-examination the witness when such a discretion is used, no prejudice can said to have occurred or is likely to have occurred to otherside, particularly, when the session trial had not made much headway in the said interregnum period. [Para 15]
Law Laid Down :
No time limit since is set in exercise of power under Section 311 of Code of Criminal Procedure some cannot be incorporated limiting the discretionary power of trial Court.
Case Law Analysis :
Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat, AIR 1964 SC 1563 [Para 5];; Minu Kumari and another vs. State of Bihar and others, (2006) 4 SCC 359 [Para 18].—Relied on
Ms. Sonia Gokani, J.—The petitioner filed the present petition challenging the legality and validity of the order passed below exh.91 by Learned Special Judge Rajkot in Special Case No. 10 of 1995 dated 11.9.2007,in recalling the prosecution witness –original Complainant in a matter arising from the Prevention of Corruption Act.
Brief facts of this petition are as under :—
2. The petitioner are arraigned as accused in the Special Case No. 10 of 1995 which has resulted on account of complaint filed by one Shri Jagjivan Ramjibhai Chavda for the commission offences made punishable under Sections 7,12, 13(2) of the Prevention of Corruption Act (hereinafter referred to as the ‘Act’). The investigation culminated into the filing of charge-sheet against present petitioners and during the course of the Sessions trial, the complainant (Prosecution witness No. 2- ‘PW-2’) was examined. Examination- in- chief of PW-2 was concluded on 9.4.2007 and as the Learned Advocate for the accused was permitted time for cross examination that was over on 16.4.2007.
3. An application in this trial appears to have been moved for recalling the witness for the purpose of Section 154 of the Indian Evidence Act (hereinafter referred to as ‘the Evidence Act’), being an application below exh.91 on dated 16/8/2007 on adverting the contentions of both the sides, the learned Special Judge allowed the said application by the impugned order which is under challenged before this Court in this petition moved under Section 482 of Code Criminal Procedure.
4. This Court has heard extensively, Learned Advocate Mr. Bhargav Bhatt appearing for petitioner and learned Assitant Public Prosecutor Mr. K.P. Raval for the respondent-state.
5. It is contented vehemently by the Learned Advocate Mr. Bhatt that the learned judge has gone out of way to favour the prosectuion, disregarding the fact that the impugned order can jeopardize the interest of accused – petitioners extensively. Had the said request made by the learned public prosecutor soon after examination-in-chief, the same could have been considered under Section 154 of the Evidence Act, which permits cross-examination by the party in case of its own witness. However, when the defence was already put in a precarious position by cross examining the witness, this allowance will have to be viewed vis-a-vis right of the accused . He further, contended that, if the prosecution does not want to own the evidence of its own witness, there are ways to discard the same, but the method followed by the prosecution in the instant case and accepted by the learned Special Judge, is not consonance with the scheme of the provisions of Evidence Act. Reliance is also placed on the judgment of State of Bihar vs. Lalu Prasad Yadav, reported in AIR 2002 SC 2432. He argued that relying on this, Court has allowed the application of prosecution where reading was in truncated manner, impermissible under the law. He has further relied upon the judgment Dahyabhai Chhaganbhai Thakkar vs. State of Gujarat reported in AIR 1964 SC 1563.
6. As against that, learned Additional Public Prosecutor Mr. K.M. Rawal urged this Court to avail fair opportunity to the prosecution and also stated that no prejudice is likely to be caused to the defence in the event of upholding of the order of Special Judge as the defence can get further opportunity to cross-examination. Indeed, it was inadvertance on the part of public prosecutor according to learned Additional Public Prosecutor, that he did not make request soon after examination-in-chief or the cross-examination of PW-2. It is only with the change of gear that his incumbent public prosecutor realized that the witness called by the prosecution had not supported its case and needed to be cross-examined by the party which called the witness as is permissible under the law. He also urged the Court that for a just decision in any given case, such powers must be allowed to be exercised and therefore, this petition
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
