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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Sandeep N. Bhatt, J.
Dhirubhai Chhaganbhai Gayakwad – Petitioner
Versus
State of Gujarat & ORS. – Respondents
R/Special Criminal Application (Quashing) No. 5648 of 2024 With R/Special Criminal Application No. 10715 of 2024
Decided On : 27-11-2024
(A) Criminal Procedure Code, 1973 - Section 311 - Indian Evidence Act, 1872 - Section 118 - Application for summoning a minor witness - The trial court's rejection of the application to examine the minor as a witness was deemed unjust and improper - The minor was a crucial eyewitness to the incident in question, and her testimony was essential for a just decision - The court emphasized that child witnesses are competent provided they can understand and answer questions rationally (Paras 5, 8.2, 8.5).
(B) The court reiterated that the discretion under Section 311 should be exercised judiciously to ensure justice is served, particularly when the testimony of an essential witness is at stake (Paras 8.2, 8.5).
(C) The petitions were allowed, and the order of the trial court was quashed, permitting the examination of the minor witness with appropriate safeguards (Paras 9, 10, 11).
Facts of the case:
The petitioner sought to examine a minor witness in a case involving serious charges under IPC and Dowry Prohibition Act, but the trial court had rejected this application.
Findings of Court:
The court found the trial court's reasoning flawed and emphasized the importance of the minor's testimony.
Issues: Whether the trial court erred in not allowing the minor to testify, and the application of Section 311 regarding the summoning of witnesses.
Ratio Decidendi: The court held that the minor's testimony was vital for justice, and the trial court's refusal was not justified.
Result: Petitions allowed.
JUDGMENT :
Sandeep N. Bhatt, J.
1. Since the order, which is challenged by the petitioner in respective petitions is common, hence, both the petitions are kept, together, heard together, considered together by common judgment and Special Criminal Application No.10715 of 2024 is considered as leading matter.
2.1 The Special Criminal Application No.10715 of 2024 is filed for seeking the following reliefs:
(b) Your Lordship be pleased to quash and set aside the order dated 30.03.2024 passed in Sessions Case No.22 of 2018 by the Learned Principal District and Session Judge, Navsari in the interest of justice. And allow the Exhibit no. 98 application filled by the prosecution before the Ld. Session Court, Navsari in Sessions Case No.22 of 2018.
(c) Pending admission, hearing and till the final disposal of the application Your Lordship may be pleased stay the implementation and execution of the order dated 30.03.2024 passed by the Learned Principal District and Session Judge, Navsari in Sessions Case No.22 of 2018 in interest of justice.
(d) Your Lordship may be pleased to grant any other and further relief in favour of present applicant.”
2.2 The Special Criminal Application No.10715 of 2024 is filed for seeking the following reliefs:
(B) During pendency and final disposal of the present application, YOUR LORDSHIPS may be pleased to stay further proceedings of Sessions Case No. 22 of 2018, pending before the Learned Sessions Judge, Navsari.
(C) xxx.”
3. Brief facts as per Special Criminal Application No.10715 of 2024 are as under:
3.1 The complainant being respondent no.3 namely Dhirubhai Chhaganbhai Gayakwad had filed a complaint at Navsari Rural Police Station, Navsarion 01.12.2017 being as F.I.R No. 224 of 2017 for the offence punishable under Sections 498(A), 306, 323, 504, 114 of Indian Penal Code, as well as Sections 3 and 7 of the Dowry Prohibition Act. The investigating officer has concluded the investigation and filed a charge sheet on 23.02.2018. After examining a total of 21 witnesses, the present petitioner had preferred an application under Section 311 of the Criminal Procedure Code, 1973 before the Learned Principal District and Session Judge, Navsari for examining the daughter of the deceased namely "Aashavi" as witness on 06.09.2023 and Sessions Case No.22 of 2018 on 30.03.2024, application of the present petitioner was rejected by the learned Principal District and Session Judge, Navsari. Hence, the present petitions have been preferred.
4. Heard Ms. C.M. Shah, learned APP appearing for the petitioner – State in Special Criminal Application No.10715 of 2024 and for respondent No.1 – State in Special Criminal Application No.5648 of 2024, Mr. P.P. Majmudar, learned advocate appearing for the respondent No.3 in Special Criminal Application No.10715 of 2024 and for the petitioner in Special Criminal Application No.5648 of 2024 and Mr. Jaydeep Sindhi, learned advocate appearing for the respondent Nos.1 and 2 in Special Criminal Application No.10715 of 2024 and for respondent Nos.2 and 3 in Special Criminal Application No.5648 of 2024.
5. Ms. C.M. Shah, learned APP appearing for the petitioner – State in Special Criminal Application No.10715 of 2024 and for respondent No.1 – State in Special Criminal Application No.5648 of 2024 has drawn my attention towards the order passed by the trial court and has submitted that the trial court has committe
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