IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 10261 of 2025 ============================================

JIGAR @ BABBAN S/O DASHRATHBHAI SARGARA(MARWADI)

Versus STATE OF GUJARAT & ANR.

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Appearance:

MR JB DASTOOR(239) for the Applicant(s) No. 1 MR ADITYA JADEJA, APP for the Respondent(s) No. 1 ============================================

CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 17/09/2025

ORAL ORDER

1) By way of present petition under Articles 226 and 227 of the Constitution of India read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, the petitioner has sought following relief(s):

“b) Your Lordship be pleased to issue a writ of mandamus or certiorari or any other writ, order, direction in the nature of mandamus or certiorari under Article 21 and 226 for protection of life of petitioner and for fair trial and quash and set aside the order dated 6/5/2025 annexed at Annexure-D to the petition passed by the trial court below exhibit 48, 49, 50 in Special POCSO Case No.41 of 2023 and be pleased to direct the trial court to recall the victim for further cross examination only on the evidence of her mobile communication.”

2) Learned Advocate for the petitioner has submitted that the petitioner is an accused facing trial for the offences punishable under Sections 376(3) and 506(2) of the Indian Penal Code with Section 3(a)(4) of the Protection of Children from Sexual Offences Act, (which shall hereinafter be referred to as “POCSO Act” for short) and Sections 3(2)(a), 3(1)(w)(i) and 3(1)(w)(ii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. After completion of investigation the charge-sheet came to be filed wherein the prosecution cited 14 witnesses. The evidence of prosecution is on the verge of completion and deposition of the Investigating Officer is yet to be recorded. The petitioner is in jail since last two years as Under Trial Prisoner. The evidence of victim was recorded below Exhibit 12 on 01.02.2024. After approximately seven years and 20 days the petitioner has preferred the application below Exhibit 48 to recall the witness i.e. PW-2 victim to brought to her notice telephonic conversation took place between the petitioner and the victim on the mobile phone of the father of the victim which is produced with documentary list at Exhibit 49 and an application at Exhibit 50 to show the same to the victim. For the said purpose as new evidence is obtained by the petitioner he wants to brought to the notice of victim, hence, he has filed application to recall the witness in view of judgment of the Hon’ble Apex Court in case of Natasha Singh Vs Central Bureau of Investigation (State) reported in (2013) 5 Supreme Court Cases 741, and in case of State of Haryana Vs. Ram Mehar reported in (2016) 8 Supreme Court Cases 762. With a view to fair trial and fair trial is not only for the victim or prosecution but accused has also right of fair trial. The learned Sessions Judge has been pleased to dismiss the application filed below Exhibits 48 to 50, hence, he has requested to allow both the applications. As earlier the Advocate engaged by the accused did not put the question to the victim. Hence, he has requested to allow the present petition.

3) Learned APP opposed the present petition on the ground that the learned Sessions Judge has not committed any error in dismissing the applications on the ground that the trial is under the POCSO Act and time and again recalling the witness is not permissible. Further he has submitted that after a long time the application is filed without assigning any proper reason. Merely change of Advocate is not a ground to file application to recall the witness. Not only that learned Sessions Judge has properly assigned the reasons while rejecting the applications. So far applications Exhibits 48 to 50 are concerned though was available on record as documentary evidence not a si