SHEIKH MADINABIBI MUSTAFABHAI V STATE OF GUJARAT ON 12 OCTOBER, 2004
| Citation | (2005) 2 GLR 1339 |
| Date of Judgment | 12 October, 2004 |
| Court | Gujarat High Court |
| Case Type | Cri. Rev. App. No. 94/2004 |
| Appellant | Sheikh Madinabibi Mutafabhai |
| Respondent | State of Gujarat |
| Bench | C Buch |
| Referred | Section- 311 CRPC |
FACTS OF THE CASE
The petitioner-original complainant has moved this Court by filing Cri. Rev. Application No.94/2004 invoking jurisdiction of this Court under Sec.397 R/w Sec.401 of The Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), challenging the order passed by ld. Addl. Sessions Judge, Fast Track Court of District Panch Mahals at Godhara dated 20.1.2004 passed below application Exh.156 in Sessions Case No. 160/2002 and Sessions Case No. 59/2003. On perusal of certified copy of the application exh.156 submitted in the proceedings of above-referred two Sessions Cases, it emerges that by pointing out certain irregularities and infirmities, the complainant requested the Court to recall Seven witnesses examined by the prosecution invoking the powers vested with the Court under Sec.311 of CrPC. In the relief clause para-10 of the application exh.156, the complainant prayed for recalling of the following seven witnesses and also simultaneously prayed that their depositions may be recorded in light of the contentions raised in the application.
It is not a matter of dispute that the petitioner is the only complainant of the offence registered with Kalol Police Station of District Panch Mahals being CR No. I.41/2002 on 3rd March 2002. The complaint discloses various offences punishable under Indian Penal Code and also offence punishable under Sec.135 of the Bombay Police Act. After registration of offences punishable under sections 143, 147, 148, 149, 392, 397, 153(A), 201, 436, 120(B) of Indian Penal Code, the police also added one more offence punishable under Sec.376 of Indian Penal Code.
Initially, a group of accused was chargesheeted and the criminal case registered against them was committed to the Court of Sessions and the same was registered as Sessions Case No. 160/2002. Thereafter, a supplementary chargesheet came to be filed against one another group of accused persons for the same crime and Sessions Case No. 59/2003 is registered against other group committed on account of that chargesheet. Accused of both the Sessions Cases are facing consolidated trial for the charges levelled against them. It is told that the evidence is recorded as per the proceedings drawn in Sessions Case No. 160/2002.
The prosecution has produced certain documents along with list exh.20 as provided under Sec.294 of CrPC. Many of these documents have been accepted in evidence without formal proof of admission as provided in the said Section. When the Court was proceeding with the trial, the petitioner found that material irregularities have been cropped up because of certain inactions on the part of either the Court and/or of ld. Special Public Prosecutor ( ld. Spl. PP for short). In paras 5, 6, 7 and 8 of the application exh.156, the petitioner attempted to point out some of such irregularities and infirmities that may result into serious prejudice to the case of the prosecution and it was submitted before the trial Court placing reliance on the decisions namely (i) Koli Nana Bhana and Ors. v. State of Gujarat, 1984 GLH 1055, (ii) Kharad Vallabhbhai Savaji and Ors. v. State of Gujarat, 1995(2) GLR 1365, and (iii) Chandrasinh @ Chandubha Lalubha v. State of Gujarat, 2002(2) GLR 960, that it is the duty of the trial Court to ensure that the attention of all the witnesses named in the application exh.156 is drawn to each fact stated by them in their respective police statements and if required, the witnesses should be appropriately contradicted or confronted. Unless that contradictions or omissions are brought on record, they can not be legitimately proved which may result into serious prejudice to the prosecution and would not give a rise to the scope for the Court to condemn or critisize that particular witness, unless the attention of that particular witness is drawn to his previous statement or statements recorded by the police during the course of investigation, and so, before recording the evidence of any other witness, the witnesses named in the application may be recalled. At this stage, it is relevant to note that it was open for the ld. Presiding Judge to say that the witnesses named in the application or any of them may be recalled for the purpose or for a limited purpose even after recording of evidence of all the prosecution witnesses except Investigating Officer or the Police Officer who has recorded the statements of these witnesses named in the application or has drawn any panchanama during the course of investigation. Ld. Addl. Sessions Judge, after discussing the provisions of Sec. 311 of CrPC, rejected the application referring two decisions of the Apex Court; namely (i) State of Bihar v. Lalu Prasad alias Lalu Prasad Yadav, AIR 2002 SC P.2432, and (ii) Rajendra Prasad v. Narcotic Cell through its Officer-in-Charge, Delhi, AIR 1999 SC P.2292. The reasons assigned mainly by the ld. Judge are that (i) ld. Spl.PP was permitted to ask the questions which could be asked during the cross-examination only and (ii) some of the witnesses referred in the application have supported the case of the prosecution and, therefore, they are not cross-examined by the prosecution and (iii) the original complainant should not be permitted to rectify the mistake or to fill-up the gaps or lacuna in the evidence left by any of the witnesses mentioned in the application. It is held that there is no element of error which can be said to be bonafide error in putting questions to the witnesses. It is also observed that it is not necessary to pass formal order while recording depositions of the witnesses that a particular witness be treated as hostile and, therefore, ld. Spl.PP is permitted to cross-examine the witnesses.
It is important to note that ld. Spl.PP Mr. Gandhi has supported the case of the complainant and the Court was requested by ld. Spl.PP that the application of the original complainant may be allowed. However, the request was extended by the ld. Spl.PP Mr. Gandhi was not acceptable to the Court.
ISSUES
1. Can an application be filed at the stage of inquiry, trial, or other proceedings ?
ARGUMENTS
Counsel Mr. Malkan appeared for the petitioner, ld. PP Mr. Oza for the State supporting the case of the petitioner. I have also heard ld. counsel Mr. S.V. Raju, Mr. Y.F. Mehta and Mr. Bhargava Bhatt appeared for the respondents accused at length. Meanwhile, ld. counsel appearing for the respondents have adopted the arguments advanced by ld. counsel Mr. SV Raju. The anxiety of ld. Counsel appearing for the respondents expressed before the Court is that this Court should hear and record the finding on the preliminary points which are raised before the Court. However, for the sake of convenience, I have heard ld. counsel appearing for the parties on merits on all the points.
Preliminary objections raised by the ld. counsel appearing for the respondents are:-
(i) That the petitioner- original complainant has no locus to file the present Revision Application especially when the case is instituted on police report submitted under Sec.173(2) of CrPC;
(ii) That Revision Application is not maintainable on account of the statutory bar provided under sub-section (2) of Sec.397 of CrPC;
(iii) This Court after passing the order on 1.3.2004, should not proceed further with the matter as the suo motu directions contemplated in the order are very wide, non-specific and beyond the scope of business allocated upon the Court as per the current Roster and suo motu proceedings along with revision application may be placed for hearing before the Bench taking up petitions moved under Sec.482 of CrPC or taking up Special Criminal Applications moved under Article 227 of the Constitution of India. Considering the gravity of the offence, nature of charge levelled against the respondents accused, this Court should not pass the order casually allowing Revision Application because there is no need to interfere with the discretionary order, otherwise, it would be improper exercise of jurisdiction when the jurisdiction of this Court is limited.
JUDGEMENT
For short, Revision Applications are allowed. Suo motu proceedings initiated by the Court culminate in favour of the petitioner -original complainant as well as the petitioner of cri. Rev. Application No. 94/2004 namely Shaikh Madinabibi also succeeds. In the same way, her request to grant an application Exh. 156 as prayed for is allowed and the impugned order passed by ld. Presiding Judge, 4th Fast Track Court, Godhara dated 20.01.2004 is hereby quashed and set aside. The ld. Presiding Judge of the Court dealing with aforesaid both the Sessions Cases, shall see that witnesses named in the application exh. 156 and that may be named by ld. Spl.PP Mr. Gandhi is called back for further examination including cross-examination or only for cross-examination. Thus, Cri. Rev. Application No. 94/2004 is also allowed accordingly. Rule is made absolute accordingly in both the Rev. Applications.
32. It appears that for the reasons best known to the State, they have not preferred any separate Revision Application against the order below application Exh.156. Of course, ld. PP Mr. Oza has tried to explain the contingency and submitted that when the State has taken cause of the petitioner of Cri. Rev. Application No. 94/2004, it is not necessary to duplicate the things by preferring another Cri. Rev. Application on behalf of the State. The Court is not inclined to comment upon the explanation given on behalf of the State.
ORDER It is submitted jointly by ld. counsel appearing for respondents accused that CAV Judgment passed by this Court may be placed under suspension as some of the accused may decide to approach the higher forum and challenge the judgment pronounced by this Court today. The main submission advanced is that if the trial proceeds, then the petition contemplated before the Apex Court may become infructuous. The second submission is that if the stay is granted, then the prosecution is not likely to suffer any prejudice.
Having considered the facts and circumstances of the case and totality emerging from the record as well as from the submissions made before the Court today and on earlier occasion, the Court is not satisfied and, therefore, the request to suspend the order for 3 (three) weeks is refused. No stay as prayed for is granted.
REFERENCES
This Article is written by Chandrawati Chouhan of Rajasthan School of Law for Women, Jaipur , Intern at Legal Vidhiya.
