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SCR.A/87/2011 11/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 87 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE AKIL KURESHI
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
MANGILAL
DHUPCHAND JAIN & 2 - Respondent(s)
=========================================================
Appearance
:
MR
JM PANCHAL, SPL. PP WITH MR JK PANCHAL, APP & KG MENON, SR. ADV.
WITH MR AJAYKUMAR CHOKSI for the petitioners.
MR BN LIMBACHIA for
Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 20/01/2011
CAV
ORDER
In
this petition filed jointly by the State and the Special
Investigation Team, petitioners have challenged an order dated 11th
October 2010 passed by the learned Additional Sessions Judge in
Sessions Case No.152 of 2002. The Sessions trial pertains to
post-Godhra riots at Gulbarg Society, Ahmedabad where several people
lost their lives. During the course of the trial, the prosecution
had examined one Ashish Khaitan, PW 313 at Ex.1091. He was at the
relevant time, working as reporter of one Tehelka News Magazine. He
had allegedly carried out sting operation on some of the accused
involved in the said Sessions Case wherein before the camera they had
allegedly made certain voluntary disclosures which would have bearing
on their involvement in the said case.
2. Later
on, the prosecution filed application Ex.1457 on 11.10.2010 before
the Sessions Court and prayed that the said prosecution witness
No.313 be recalled under section 311 of the Criminal Procedure Code
for further examination. In the application, it is stated that the
said witness has deposed about the confessions of the accused Madan
Raval, Prahlad Raju and Mangilal Jain. He has produced DVD and the
Micro-chips on which such confessions said to have been made are
recorded. Said witness has also identified such accused in his
deposition before the Court stating that on the basis of the DVD
prepared during the sting operation, he was able to identify the
accused by face as well as from their voices. In the application,
it is further stated that it is of great importance to bring on
record evidence through the said witness that the DVD contains voices
of these very accused. Such evidence can come only from the said
witness. Recalling the witness would cause no prejudice to the
defence since it would be open for the accused to cross-examine
the witness on such further evidence.
3. At
one stage, on behalf of the concerned accused, their advocate put an
endorsement that they have no objection to the application being
granted. On the basis of such endorsement, the learned Sessions
Judge also passed order to the following effect:
“On
behalf of the accused, learned advocate has put an endorsement that
there is no objection to the application being granted. Therefore,
the application is not heard on merits and since there is no
objection raised by the accused, the same is granted. Prosecution to
ensure presence of the witness on the next date.”
Subsequently,
however, advocate of the accused filed a pursis also on the same
date stating that the endorsement was made due to communication gap
with his Senior Advocate. Such endorsement of no objection may,
therefore, be ignored and arguments be permitted. On this pursis,
learned Judge passed the following order:
“Since
no objection is raised by the prosecution, this application is
allowed. Order passed below Ex.1457 is deleted.”
Thereupon,
arguments of both sides were heard and the impugned order came to be
passed. The learned Judge was pleased to dismiss the same primarily
on the following grounds :
The
witness is a prominent reporter. The audio and video prepared
through sting operation have been produced before the Court, on
which basis, he has stated that he was able to identify the accused
by face and voice. At that stage, though all instruments were
present before the Court, the prosecution did not think it proper
to gather the identification of the accused in the DVD.
DVD
has been sent for matching the voice samples of the accused and the
report is not received so far.
The
witness has deposed in detail about the sting operation and what
conversation took place with the accused. Under the circumstances,
there is no question of identifying the voices of the accused before
the Court.
The
witness cannot be stated to be an expert who can depose about the
voice of the accused in the recordings made during sting operation,
which is a matter of scientific analysis.
With
respect to the identification of the accused, the witness has
identified these accused before the Court and therefore, question of
identifying them in the video recordings is not relevant.
4. Learned
counsel for the petitioners contended that the learned Sessions Judge
committed a serious error in disallowing the application. No
prejudice would be caused in recalling the witness. He referred to
the provisions of section 311 of the Criminal Procedure Code to
contend that there are wide powers with the Court to recall the
witness in the interest of justice. He relied on a decision of the
Apex Court in the case of R.N.Malkani v. State of Maharashtra,
(1973) 1 SCC 471 wherein the
Apex Court has observed as under :
“23.
Tape recorded conversation is admissible provided first the
conversation is relevant to the matters in issue; secondly, there is
identification of the voice; and, thirdly, the accuracy of the tape
recorded conversation is proved by eliminating the possibility of
erasing the tape-record. A contemporaneous tape-record of a relevant
conversation is a relevant fact and is admissible under Section 8 of
the Evidence Act. It is res gestae. It is also comparable to a
photograph of a relevant incident. The tape recorded conversation is
therefore a relevant fact and is admissible under Section 7 of the
Evidence Act. The conversation between Dr. Motwani and the appellant
in the present case is relevant to the matter in issue. There is no
dispute about the identification of the voices. There is no
controversy about any portion of the conversation being erased or
mutilated. The appellant was given full opportunity to test the
genuineness of the tape recorded conversation. The tape recorded
conversation is admissible in evidence.”
Reliance
was also placed on a decision of Kerala High Court in the case of
Suja P. Chacko v. State of Kerala,
1994 Cri.L.J. NOC 292 wherein the learned Judge observed as under:
“The
court, while exercising powers under S.311 of the Code or S.165 of
the Evidence Act should guard against causing prejudice to the
defence or to the prosecution. But that is no reason to pre-empt the
right of a party to correct any error or to adduce proper and
relevant evidence which through any inadvertence one party would have
missed or overlooked at an earlier stage.”
Reliance
was also placed on a decision of the Apex Court in the case of Rammi
v. State of M.P. (1999) 8 SCC
649, wherein the Apex Court observed as under:
“17.
There is an erroneous impression that re-examination should be
confined to clarification of ambiguities which have been brought down
in cross-examination. No doubt, ambiguities can be resolved through
re-examination. But that is not the only function of the re-examiner.
If the party who called the witness feels that explanation is
required for any matter referred to in cross-examination he has the
liberty to put any question in re-examination to get the explanation.
The Public Prosecutor should formulate his questions for that
purpose. Explanation may be required either when ambiguity remains
regarding any answer elicited during cross-examination or even
otherwise. If the Public Prosecutor feels that certain answers
require more elucidation from the witness he has the freedom and the
right to put such questions as he deems necessary for that purpose,
subject of course to the control of the Court in accordance with the
other provisions. But the Court cannot direct him to confine his
questions to ambiguities alone which arose in cross-examination.”
Reliance
was also placed on a decision of the Apex Court in the case of
Godrej Pacific Tech. Ld. v. Computer Joint India Ltd.,
(2009) 2 SCC (Cri.) 455, wherein while interpreting section 311 of
the Criminal Procedure Code, the observations made by the Apex Court
in the case reported in AIR (2006) 3 SCC 374 were noted with approval
as follows:
“24.
In this context, reference may be made to Section 311 of the Code
which reads as follows:
“311.
Power to summon material witness, or examine person present.
Any
Court may, at any stage of any inquiry, trial or other proceeding
under this Code, summon any person as a witness or examine any person
in attendance, though not summoned as a witness or recall and
re-examine any person already examined, and the Court shall summon
and examine or recall and re-examine any such person if his evidence
appears to it to be essential to the just decision of the case.”
The
section is manifestly in two parts. Whereas the word used in the
first part is “may”, the second part uses “shall”.
In consequences, the first part gives purely discretionary authority
to a Criminal Court and enables it at any stage of an enquiry, trial
or proceeding under the Code (a) to summon any one as a witness, or
(b) to examine any person present in Court, or (c) to recall and
re-examine any person whose evidence has already been recorded. On
the other hand, the second part is mandatory and compels the Court to
take any of the aforementioned steps if the new evidence appears to
it essential to the just decision of the case. This is a
supplementary provision enabling, and in certain circumstances
imposing on the Court the duty of examining a material witness who
would not be otherwise brought before it. It is couched in the widest
possible terms and calls for no limitation, either with regard to the
stage at which the powers of the Court should be exercised, or with
regard to the manner in which it should be exercised. It is not only
the prerogative but also the plain duty of a Court to examine such of
those witnesses as it considers absolutely necessary for doing
justice between the State and the subject. There is a duty cast upon
the Court to arrive at the truth by all lawful means and one of such
means is the examination of witnesses of its own accord when for
certain obvious reasons either party is not prepared to call
witnesses who are known to be in a position to speak important
relevant facts.
25.
The object underlying Section 311 of the Code is that there may not
be failure of justice on
account of mistake of either party in bringing the valuable evidence
on record or leaving ambiguity in the statements of the witnesses
examined from either side. The determinative factor is whether it is
essential to the just decision of the case. The section is not
limited only for the benefit of the accused, and it will not be an
improper exercise of the powers of the Court to summon a witness
under the Section merely because the evidence supports the case for
the prosecution and not that of the accused. The section is a general
section which applies to all proceedings, enquiries and trials under
the Code and empowers Magistrate to issue summons to any witness at
any stage of such proceedings, trial or enquiry. In Section 311 the
significant expression that occurs is “at any stage of inquiry
or trial or other proceeding under this Code”. It is, however,
to be borne in mind that whereas the section confers a very wide
power on the Court on summoning witnesses, the discretion conferred
is to be exercised judiciously, as the wider the power the greater is
the necessity for application of judicial mind.”
5. On
the other hand, learned counsel for the accused opposed the petition
contending that the application has been moved by the prosecution
only for filling up the lacuna which cannot be permitted in
exercise of powers under section 311 of the Criminal Procedure Code.
The learned Sessions Judge has found enough independent material
and there is no further necessity of recalling the witness for the
purpose indicated by the prosecution.
6. Having
thus heard the learned advocates for the parties, I am of the opinion
that the learned Judge has committed a serious error in disallowing
the application of the
petitioners. Firstly, previously, on behalf of the concerned accused
‘no objection’ was endorsed to such an application being granted.
On the basis of such ‘no objection’, the learned Additional Sessions
Judge also passed an order allowing the application of the State.
Any further order would amount to reviewing such an order which is
not permissible in criminal jurisprudence. However, since such
recall was also on the ‘no objection’ endorsed by the prosecution, I
do not propose to decide this petition only on this ground.
7. On
the merits of the order, I find that the learned Judge has failed to
exercise the jurisdiction vested in him. As observed by the Apex
Court in the decisions noted herein-above, the Trial Court is
empowered to recall a witness who has already been examined, at any
stage and re-examine him if his evidence appears to be essential to
the just decision in the case. Thus, while the provision vests
discretionary powers in the Court under certain circumstances, it is
incumbent upon the court to exercise such powers.
8. In
the present case, the prosecution had examined the witness to prove
the alleged sting operation during which the accused had allegedly
made certain voluntary disclosures. The said accused were identified
by the witness before the Court. However, the important element of
identifying the voices of the accused in the DVD prepared through
such sting operation was not completed by the prosecution,
for which purpose, the application was moved. In my opinion, such
application ought to have been granted which would only further the
ends of justice. Accused would have sufficient opportunity to
cross-examine the witness, if before the Court he makes any adverse
deposition. Simply because the prosecution did not put such a
question at the relevant time, in the present case, would not
preclude the learned Judge from exercising powers under section 311
of the Criminal Procedure Code particularly looking to the complexity
and enormity of the offence alleged.
9. The
fact that the witness was a leading Journalist who had made detailed
disclosures before the Court would not be a reason enough to deny his
recall if on an important aspect his further evidence is necessary.
The fact that FSL report regarding voices of the accused is not
available would surely be not a ground for not recalling the witness.
The reason that the witness cannot be stated to be an expert witness
who can depose about the voices in the DVD is a curious reason. The
witness had, according to him, carried out the sting operation and
recorded the same on audio and video. Identification of the voices
and faces by him in such an audio and video would be as one having
personal knowledge and not as a expert. Identifying the accused
before the Court is vitally different from identifying them in the
video recordings.
10. In
the result,the petition is allowed. The impugned
order dated 11.10.2010 passed by the learned Additional Sessions
below application Ex.1457 is set aside.
PW 313 shall be recalled and examined by the Court on such date as
may be convenient to the Court after putting the State as well as the
accused to notice. The petition stands disposed of accordingly
(Akil
Kureshi, J.)
(vjn)
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