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CR.MA/10456/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10456 of 2008
=========================================================
GUJARAT
POLLUTION CONTROL BOARD - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance :
MR
RITURAJ M MEENA for Applicant(s) : 1,
MS
MANISHA L SHAH APP for Respondent(s) : 1,
RULE SERVED BY DS for
Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 20/03/2009
ORAL
ORDER
Though
served, no one appears for respondents nos.2 and 3.
The
challenge in this application filed by the applicant-Gujarat
Pollution Control Board (for short the Board ) is the order
dated 29.08.2007 passed by the learned Judicial Magistrate, First
Class, Jetpur below Exh.65 in Criminal case No.615 of 1993 by which
application of the respondents Nos.2 and 3 for recalling witnesses
came to be allowed at a very belated stage without recording any
satisfaction.
Learned
counsel for the applicant submits that even as per the application
submitted by the accused-applicant, the grounds for recalling
witnesses was only the change of advocate and on earlier occasion
when cross-examination took place, certain relevant questions of law
and facts were not raised. According to learned counsel for th
applicant, same is not germane to exercise of powers under Section
311 of the Code of Criminal Procedure and no doubt a witness can be
recalled at any stage if the court is satisfied that the same was
not essential or needed for just decision in the case. But in the
present case, no sufficient ground or satisfaction was recorded by
the learned Magistrate to recall the witnesses as prayed for by the
respondents No.2 and 3 and particularly an opportunity was already
given to cross-examine and final arguments were already submitted by
the parties.
Having
heard learned counsel for the applicant and considering the facts
and circumstances of the case and order passed by learned
Magistrate, what transpires is that no satisfaction is recorded by
the learned Magistrate for exercising powers under Section 311 of
the Code inasmuch as though objection was raised by the applicant
herein by filing objection at Exh.66 and in view of the reliance
placed on the decision of the High Court of Orissa in the case of
Thomas Kujur v. Republic of India reported in 2007(2) Crimes 188
Orissa, above aspect is not considered at all. It was specifically
submitted that so far as two witnesses viz. Jayesh Devkaran Kalyan
and Janardan Balakrishna Dave are concerned, they were
cross-examined vide Exhs.51 and 52 as early as in July and
September, 2005. Not only that but further statement of the
accused was also recorded on 01.10.2005.
In
view of the above, it cannot be said that there was a satisfaction
on the part of the learned Magistrate to exercise power under
Section 311 of the Code. The order impugned is de void of any merit
much less any justification and deserves to be quashed and set
aside. Accordingly, this application is allowed and order dated
29.08.2007 passed by the learned J.M.F.C., Jetpur below Exh.65 in
Criminal Case No.615/93 is hereby quashed and set aside. Rule is
made absolute to the aforesaid extent only.
Before
parting, this Court has passed order on 28.01.2009 encompassing
negligence of the applicant-Board and its officers to pursue
criminal cases filed under the provisions of Gujarat Water
(Prevention & Control of Pollution) Act, 1974. In view of the
detailed affidavit filed by the concerned advocate, I deem it just
and proper not to take any action against officers of the Board, at
this stage.
(ANANT S. DAVE, J.)
*pvv
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