Point of Law : Remedy under Article 226 is discretionary remedy for doing complete justice and correcting injustice. So far Section 482 of the Code is concerned, if the high court finds necessary for securing the ends of justice, the section empowers the High Court to exercise its inherent powers and in that case, there can be no limitation in exercise of its power.

JUDGMENT :

1. The present petition is directed under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure against the order dated 05.01.2021 passed by learned Chief Judicial Magistrate, Surat, below Exh:59 in Criminal Case No.18712/2019, whereby, the application filed under Section 311 of the Code has been rejected.

2. The facts and circumstances giving rise to this application are as under:-

(i) A defamation case under Sections 499 & 500 of the Indian Penal Code (‘IPC’ for short) filed by the applicant Purnesh Modi, who is an elected member of legislative assembly from the constituency of Surat City – 167 (west) against the respondent No.2, sitting Member of Parliament, Vynand Constituency and at the relevant time, he was President of Indian National Congress, inter alia, alleging that, during last general election held in 2019, the respondent No.2 was addressing an election rally in Kollar of Karnataka State and had allegedly made defamatory remarks with respect to Modi surname and community at large.

(ii) In the aforesaid background, the applicant filed a private complaint being Criminal Case No.18772/2019 before the Court of learned Chief Judicial Magistrate, Surat, against the alleged defamatory remarks made by the respondent No.2 and the Court after examining the complainant under Section 200 of the Code, issued summon against the respondent No.2 under Section 204 of the Code and thereafter, plea was recorded under Section 251 of the Code and the matter was fixed for evidence of the complainant. The testimony of the applicant complainant recorded vide Exh:18, wherein, in support of his oral evidence so far defamatory remark is concerned, has produced the electronic records in form of Pendrive and three CDs containing the alleged defamatory remarks. During the course of evidence of the complainant, the other side objected the contents of the electronic record and after recording the objections, the trial Court has tentatively given Exhs:21 & 26 to Pen-drive and three CDs subject to prove the contents of the electronic data according to the Indian Evidence Act. In order to prove the contents of the alleged speech/remarks contained in the Exhs:21 and 26, the trial Court has issued summons to the witnesses as per the application Exh:32 submitted by the applicant. The testimony of the witnesses D. Shambhubhai Bhatt, Joint Chief Electoral Officer Bangalore and P.M Raghunath were recorded at Exhs:52 and 56. Based on the evidence of two witnesses, the complainant could not prove the authenticity and source of the electronic record and accordingly, the application under Section 311 vide at Exh:59 moved before the trial Court inter alia stating that the witnesses already examined are unable to throw light on the issue of source and authenticity of the electronic record and it is on record that, the video recording of the speech being made by Video Surveillance Team at Kollar, Electoral Office and therefore, four witnesses cited in the application are essential to be examined, to prove the contents of the electronic record as per the Evidence Act.

3. The Trial Court has rejected the application at Exh:59 observing that, the complainant has examined adequate number of witnesses to prove his case and the present application for examination of witnesses is not necessary for just decision of the case since other witnesses as per the application at Exh:32 for proving the electronic record have already been examined and accordingly, the application has been rejected.

4. Being aggrieved by the impugned order, the applicant has come up before this Court by filing the present petition.

5. Heard Mr. Harshit S. Tolia, learned counsel appearing for the Petitioner, Mrs. Krina Calla, learned APP for Respondent No.1 - State and Mr. P.S.Champaneri, learned counsel for respondent No.2.

6. Mr. Harshit Tolia, learned counsel for the applicant would submit that, the order of the trial Court do not exhibit judicial applic