The court ruled that the power under Section 311 of the Code of Criminal Procedure should not be used to fill gaps in the defense case, especially after significant delays, as it constitutes an abuse of process.

ORAL ORDER

1. By way of preferring present petition, petitioner has prayed for quashing and setting aside the order dated 06.06.2018 passed by learned 12th Additional Civil Judge & J.M.F.C., Surat below application Exh.61 in Criminal Case No.2288 of 2004 (New Case No.101981/2004), whereby, the learned Court concerned allowed the application preferred by the respondents - original accused for re-call and re- examine the complainant - petitioner herein as well as order dated 07.09.2019 passed by 10th Additional District & Sessions Judge, Surat below Criminal Revision Application No.09 of 2019, whereby, the Revisional Court has upheld the order passed by learned 12th Additional Civil Judge & J.M.F.C., Surat below application Exh.61 in Criminal Case No.2288 of 2004.

2. Heard learned advocate Ms. Kruti M. Shah for the applicant - original complainant, learned APP Mr. Soaham Joshi for respondent - State and learned advocate Mr. Majmudar for the respondents - original accused.

3. Learned advocate Ms. Shah has submitted that the petitioner registered one FIR being C.R.No.I-129 of 2004 against the respondent Nos. 2 to 5 for the offence punishable under Sections 323, 504, 325 and 114 of the Indian Penal Code and under Section 135 of the Bombay Police Act. Pursuant to the registration of the aforesaid FIR, the investigating officer carried out investigation and ultimately filed charge-sheet, which culminated into Criminal Case No.2288 of 2004 (new case no.101981 of 2004). Thereafter, process came to be issued to the original accused persons. The accused persons appeared before the learned Trial Court and thereafter charges came to be framed against the accused persons. Learned advocate Ms. Shah has further submitted that thereafter the deposition of the complainant has been recorded on 17.11.2006 and once again examination-in- chief of the complainant has been recorded on 15.12.2006 and on 21.06.2007, cross-examination of the complainant has been recorded. As learned advocate for the original accused sought time for further cross-examination of the complainant, the matter was adjourned on 05.10.2007 and on that day detailed cross-examination of the complainant has been carried out by learned advocate for the defence. Learned advocate Ms. Shah has further submitted that thereafter, on 10.10.2013, learned advocate for the original accused preferred an application under Section 311 of the Code of Criminal Procedure, 1973 vide Exh.61 for re-call and re-examine the complainant, which was allowed by the learned Trial Court. Being aggrieved by and dissatisfied with the said order, the petitioner - original complainant preferred revision application being Criminal Revision Application No.09 of 2019 before the Court of 10th Additional District & Sessions Judge, Surat, which came to be dismissed by upholding the order passed by the learned Trial Court. Learned advocate Ms. Shah has further submitted that being aggrieved and dissatisfied with the said order passed by the learned Revisional Court, present petition is preferred.

4. Learned advocate Ms. Shah has further submitted that the original accused preferred an application under Section 311 of the Code in the year 2013 i.e. almost after lapse of period of 6 years as detailed cross-examination of the complainant was carried out in the year 2007. She has further submitted that in the year 2007, enough time was granted to the accused persons to cross-examine the complainant and complainant has been cross-examined by the counsel of the accused persons in great detail at the relevant point of time. She has further submitted that the original accused persons have preferred an application Exh.61 with a view to delay the proceedings of the trial, which is nothing but sheer abuse of process of the Court. She has put reliance upon the decision of the Hon'ble Apex Court in the case of State of Haryana v. Ram Mehar and Others, reported in (2016) 8 SCC 762 and submitted that concept of fair trial cannot be limi