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2022 Supreme(Online)(Guj) 7990
HIGH COURT OF GUJARAT
VAIBHAVI D. NANAVATI, J
ANTON SADIYA GANAVA – Appellant
Versus
STATE OF GUJARAT – Respondent
R/SPECIAL CRIMINAL APPLICATION NO. 8940 of 2018
For the Appellants/Petitioners: MR TEJAS M BAROT, MS RHEA CHOKSHI
For the Respondents: MS MAITHILI MEHTA APP
The court can recall witnesses after evidence closure if their testimony is essential to ensure justice, affirming the discretionary power under Section 311 of the CrPC.
Headnote:(A) Constitution of India - Article 226 - Code of Criminal Procedure, 1973 - Section 311 - Challenge to recalling of witness - The prosecution sought to recall a witness after the evidence was closed, asserting the need to record omitted evidence vital for justice. The Court upheld the application emphasizing that a failure in prosecution should not hinder the pursuit of truth, thereby allowing the recall for testimony - (Paras 7, 10, 12).
(B) Discretionary authority of the Court - While recalling witnesses, courts must judiciously exercise discretion; errors by prosecution should be corrected to ensure justice is served, particularly when such evidence is essential for determining the truth - (Paras 7, 12.2).
Facts of the case:
The applicant challenged the order of recalling a witness in a drug-related prosecution that allegedly omitted critical evidence.
Findings of Court:
The court found that allowing the recall was necessary to ensure a complete record for a fair determination.
Issues: Whether the recalling of the witness constituted a significant error prejudicial to the defense?
Ratio Decidendi: The court reiterated that the power to summon witnesses under Section 311 is discretionary but must be exercised when it serves the interests of justice, regardless of prior omissions.
Result: Application granted.
JUDGEMENT
1. By way of present writ-application the writ-applicant has invoked Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 challenging the order dated 29.9.2018 passed by the learned Special Judge and Additional Sessions Judge, Anand, below Ex.114 in N.D.P.S Case No.1 of 2018.
2. The brief facts as stated by the writ-applicant herein for consideration of the present dispute are stated thus :-
2.1 The writ-applicant came to be involved and arrested in connection with FIR being II-C.R. No.18 of 2017 registered with Anand Rural Police Station for the offences punishable under Sections 8(c), 15(c), 22(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The charge-sheet came to be filed pursuant to the aforesaid FIR which culminated into the N.D.P.S. Case No.1 of 2018 before the learned Special Judge and Additional Sessions Judge, Anand.
2.2 The prosecution submitted documents vide documents list at Ex.10 on 7.5.2018. The said list include Mark 5/10 and 6/10, the information in relation to the alleged offence. The said list is duly produced at Ex.10 on 7.5.2018 and another list of documents came to be exhibited vide Ex.34 on 2.6.2018. Seventeen witnesses came to be examined by the prosecution in the said list of witnesses and the prosecution examined Pravinsinh Gandabhai Solanki, Unarmed Head Constable, Anand Rural Police Station as P.W. No.10 below Ex.69. The copy of the said evidence is duly produced at Annexure-E.
2.3 The prosecution witness followed other witnesses. The prosecution however submitted an application below Ex.114 for recalling of the witness, namely, Pravinsinh Gandabhai Solanki as P.W. No.10 below Ex.69 at the end of the trial, where examination of witnesses is over followed by recording further statement of the accused under Section 313 of the Criminal Procedure Code and oral arguments of prosecution were also heard.
2.4 The said application below Ex.114 came to be filed for the purpose of bringing on record the procedure undertaken in respect of the raid which was carried out and the witness i.e. P.W. No.10 was also one of the members of the raiding party. The said application below Ex.114 came to be allowed by the concerned Court by order dated 29.8.2018.
3. Being aggrieved and dissatisfied by the impugned order dated 29.8.2018 passed below Ex.114 the writ-applicant herein is constrained to approach this Court mainly on the ground that the prosecution has itself admittedly specified in the application that the said witness P.W. No.10 has already been examined below Ex.69. Since the prosecution failed to bring on record the facts regarding written information, the prosecution seeks to bring on record the true facts; (a) regarding the written information and (b) involvement as raiding party evidence.
4. Mr. Tejas Barot, the learned advocate appearing for the writ-applicant strenuously submitted that the documents being Mark 10/4 is duly signed by the marker and receiver, who are P.W. No.10 below Ex.69 and P.W. No.4 below Ex.30 and both have been examined at length.
4.1 Mr. Barot, the learned advocate submitted that the documents was in possession and custody of the prosecution throughout the trial. However, by filing the present application the prosecution is in other word trying to cure the deficiency while leading the evidence of P.W. No.10 vide Ex.69.
4.2 Mr. Barot, the learned advocate submitted that the trial Court is at the verge of completion wherein evidence of both the sides, concluding arguments are over and the matter is listed for judgment. If such an application is granted, the same would result in major damage to the defence and prejudice to the interest of the writ-applicant.
4.3 Mr. Barot, the learned advocate submitted that the Court below has erred in using its discretionary power while allowing the application below Ex.114 duly preferred by the prosecution.
4.4 In support of abo
