{"id":253218,"date":"2011-07-18T00:00:00","date_gmt":"2011-07-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-mangilal-on-18-july-2011"},"modified":"2017-11-16T17:47:04","modified_gmt":"2017-11-16T12:17:04","slug":"state-vs-mangilal-on-18-july-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-mangilal-on-18-july-2011","title":{"rendered":"State vs Mangilal on 18 July, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
State vs Mangilal on 18 July, 2011<\/div>\n
Author: Akil Kureshi,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCR.A\/87\/2011\t 11\/ 11\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCRIMINAL APPLICATION No. 87 of 2011\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE AKIL KURESHI\n \n \n \n=========================================================\n\n \n\nSTATE\nOF GUJARAT - Applicant(s)\n \n\nVersus\n \n\nMANGILAL\nDHUPCHAND JAIN & 2 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nJM PANCHAL, SPL. PP WITH MR JK PANCHAL, APP & KG MENON, SR. ADV.\nWITH MR AJAYKUMAR CHOKSI for the petitioners. \nMR BN LIMBACHIA for\nRespondent(s) : 1 -\n3. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE AKIL KURESHI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n:   20\/01\/2011 \n\n \n\nCAV\nORDER \n<\/pre>\n
\tIn
\nthis petition  filed jointly by the State and the Special
\nInvestigation Team, petitioners have  challenged an order dated 11th
\nOctober 2010 passed by the learned Additional Sessions Judge in
\nSessions Case No.152 of 2002.  The Sessions trial  pertains to
\npost-Godhra riots at Gulbarg Society, Ahmedabad where several people
\nlost their lives.  During the course of the trial, the prosecution
\nhad examined one Ashish Khaitan, PW 313 at Ex.1091. He was at the
\nrelevant time,  working as reporter of one Tehelka News Magazine.  He
\nhad allegedly carried out sting operation  on some  of the accused
\ninvolved in the said Sessions Case wherein before the camera they had
\nallegedly made certain voluntary disclosures which would have bearing
\non their involvement  in the said case.\n<\/p>\n
2.\tLater
\non, the prosecution filed application Ex.1457 on   11.10.2010 before
\nthe Sessions Court and prayed that the said prosecution witness
\nNo.313  be recalled under section 311<\/a>  of the Criminal Procedure Code
\nfor further examination.  In the application, it is stated that  the
\nsaid witness has deposed about the  confessions of the accused Madan
\nRaval, Prahlad Raju and Mangilal Jain.  He has produced DVD and the
\nMicro-chips on which such confessions said to have been made are
\nrecorded.  Said witness has also identified such accused in his
\ndeposition before the Court stating that on  the basis of the DVD
\nprepared  during the sting operation, he was able to identify the
\naccused by face as well as from their  voices.  In the application,
\nit is further stated that  it is of great importance to bring on
\nrecord evidence through the said witness that the DVD contains voices
\nof these very accused.  Such evidence  can come only from the said
\nwitness.  Recalling the witness would cause no prejudice  to the
\ndefence since it would  be open for the accused  to cross-examine
\nthe witness on such further evidence.\n<\/p>\n
3.\tAt
\none stage,  on behalf of the concerned accused, their advocate put an
\nendorsement  that they have no objection to the  application being
\ngranted.   On the basis of such endorsement, the learned Sessions
\nJudge also passed order to the following effect:\n<\/p>\n
“On
\nbehalf of the accused, learned advocate  has put an endorsement that
\nthere is no objection to the application being granted.  Therefore,
\nthe application is not heard on merits and since there is no
\nobjection raised by the accused, the same is granted.  Prosecution to
\nensure presence of the witness on the next date.”\n<\/p>\n
\tSubsequently,
\nhowever, advocate of the  accused filed a pursis also  on the same
\ndate stating that the endorsement was made due to communication gap
\nwith his Senior Advocate.  Such endorsement of no objection may,
\ntherefore, be  ignored and arguments be permitted.  On this pursis,
\nlearned Judge passed the following order:\n<\/p>\n
“Since
\nno objection is raised by the prosecution, this application is
\nallowed.  Order passed below Ex.1457 is  deleted.”\n<\/p>\n
\tThereupon,
\narguments of both sides were heard and the impugned order came to be
\npassed.  The learned Judge was pleased to dismiss the same primarily
\non the following grounds :\n<\/p>\n
The
\n\twitness is a prominent reporter.  The audio and video prepared
\n\tthrough sting operation have been produced before the Court, on
\n\twhich basis, he has stated that he was able to identify the accused
\n\tby face and voice.  At that  stage,  though all instruments were
\n\tpresent  before the Court, the prosecution did not think it proper
\n\tto gather the identification of the accused in the DVD.\n<\/p>\n
DVD
\n\thas been sent for matching the voice samples of the accused and the
\n\treport is not received so far.\n<\/p>\n
The
\n\twitness has deposed in detail about the sting operation and  what
\n\tconversation took place with the accused.  Under the circumstances,
\n\tthere is no question of identifying the voices of the accused before
\n\tthe Court.\n<\/p>\n
The
\n\twitness cannot be  stated to be an expert who can depose about the
\n\tvoice of the accused in the recordings made during sting operation,
\n\twhich is a  matter of scientific  analysis.\n<\/p>\n
With
\n\trespect to the identification of the accused, the witness has
\n\tidentified these accused before the Court and therefore, question of
\n\tidentifying them in the video recordings  is not relevant.\n<\/p>\n
4.\tLearned
\ncounsel for the petitioners contended that the learned Sessions Judge
\ncommitted a serious error in disallowing the application.  No
\nprejudice would be caused in recalling the witness.  He referred to
\nthe provisions of section 311<\/a> of the Criminal Procedure Code to
\ncontend that there are wide powers  with the Court to recall the
\nwitness in the interest of justice. He relied on a decision of the
\nApex Court in the case of R.N.Malkani  v. State of Maharashtra<\/a>,
\n(1973) 1 SCC 471 wherein the
\nApex Court has observed as under :\n<\/p>\n
“23.\n<\/p>\n
Tape recorded conversation is admissible provided first the
\nconversation is relevant to the matters in issue; secondly, there is
\nidentification of the voice; and, thirdly, the accuracy of the tape
\nrecorded conversation is proved by eliminating the possibility of
\nerasing the tape-record. A contemporaneous tape-record of a relevant
\nconversation is a relevant fact and is admissible under Section 8<\/a> of
\nthe Evidence Act. It is res gestae. It is also comparable to a
\nphotograph of a relevant incident. The tape recorded conversation is
\ntherefore a relevant fact and is admissible under Section 7<\/a> of the
\nEvidence Act. The conversation between Dr. Motwani and the appellant
\nin the present case is relevant to the matter in issue. There is no
\ndispute about the identification of the voices. There is no
\ncontroversy about any portion of the conversation being erased or
\nmutilated. The appellant was given full opportunity to test the
\ngenuineness of the tape recorded conversation. The tape recorded
\nconversation is admissible in evidence.”\n<\/p>\n
\tReliance
\nwas also placed on a  decision of Kerala High Court in the case of
\nSuja P. Chacko  v. State of Kerala,
\n1994 Cri.L.J. NOC 292 wherein  the learned Judge observed  as under:\n<\/p>\n
“The
\ncourt, while exercising  powers under S.311 of the Code<\/a> or S.165 of
\nthe Evidence Act should guard against causing prejudice to the
\ndefence or to the prosecution.  But that is no reason to pre-empt the
\nright of a party to correct any error or to adduce proper  and
\nrelevant evidence which through any inadvertence one party would have
\nmissed or overlooked at  an earlier stage.”\n<\/p>\n
\tReliance
\nwas also placed on a decision of the Apex Court in the case of  Rammi
\n v. State of M.P<\/a>. (1999) 8 SCC
\n649, wherein the Apex Court observed as under:\n<\/p>\n
“17.\n<\/p>\n
There is an erroneous impression that re-examination should be
\nconfined to clarification of ambiguities which have been brought down
\nin cross-examination. No doubt, ambiguities can be resolved through
\nre-examination. But that is not the only function of the re-examiner.
\nIf the party who called the witness feels that explanation is
\nrequired for any matter referred to in cross-examination he has the
\nliberty to put any question in re-examination to get the explanation.
\nThe Public Prosecutor should formulate his questions for that
\npurpose. Explanation may be required either when ambiguity remains
\nregarding any answer elicited during cross-examination or even
\notherwise. If the Public Prosecutor feels that certain answers
\nrequire more elucidation from the witness he has the freedom and the
\nright to put such questions as he deems necessary for that purpose,
\nsubject of course to the control of the Court in accordance with the
\nother provisions. But the Court cannot direct him to confine his
\nquestions to ambiguities alone which arose in cross-examination.”\n<\/p>\n
\tReliance
\nwas also placed on a decision of the Apex Court  in the case of
\nGodrej Pacific Tech. Ld.  v.  Computer Joint India Ltd.,
\n (2009) 2 SCC (Cri.) 455, wherein while interpreting section 311<\/a> of
\nthe Criminal Procedure Code, the observations made by the Apex Court
\nin the case reported in AIR (2006) 3 SCC 374 were noted with approval
\nas follows:\n<\/p>\n
“24.\n<\/p>\n
In this context, reference may be made to Section 311<\/a> of the Code
\nwhich reads as follows:\n<\/p>\n
“311.\n<\/p>\n
Power to summon material witness, or examine person present.\n<\/p>\n
Any
\nCourt may, at any stage of any inquiry, trial or other proceeding
\nunder this Code, summon any person as a witness or examine any person
\nin attendance, though not summoned as a witness or recall and
\nre-examine any person already examined, and the Court shall summon
\nand examine or recall and re-examine any such person if his evidence
\nappears to it to be essential to the just decision of the case.”\n<\/p>\n
The
\nsection is manifestly in two parts. Whereas the word used in the
\nfirst part is “may”, the second part uses “shall”.
\nIn consequences, the first part gives purely discretionary authority
\nto a Criminal Court and enables it at any stage of an enquiry, trial
\nor proceeding under the Code<\/a> (a) to summon any one as a witness, or\n<\/p>\n
(b) to examine any person present in Court, or (c) to recall and
\nre-examine any person whose evidence has already been recorded. On
\nthe other hand, the second part is mandatory and compels the Court to
\ntake any of the aforementioned steps if the new evidence appears to
\nit essential to the just decision of the case. This is a
\nsupplementary provision enabling, and in certain circumstances
\nimposing on the Court the duty of examining a material witness who
\nwould not be otherwise brought before it. It is couched in the widest
\npossible terms and calls for no limitation, either with regard to the
\nstage at which the powers of the Court should be exercised, or with
\nregard to the manner in which it should be exercised. It is not only
\nthe prerogative but also the plain duty of a Court to examine such of
\nthose witnesses as it considers absolutely necessary for doing
\njustice between the State and the subject. There is a duty cast upon
\nthe Court to arrive at the truth by all lawful means and one of such
\nmeans is the examination of witnesses of its own accord when for
\ncertain obvious reasons either party is not prepared to call
\nwitnesses who are known to be in a position to speak important
\nrelevant facts.\n<\/p>\n
25.
\nThe object underlying Section 311<\/a> of the Code is that there may not
\nbe failure of justice on
\naccount of mistake of either party in bringing the valuable evidence
\non record or leaving ambiguity in the statements of the witnesses
\nexamined from either side. The determinative factor is whether it is
\nessential to the just decision of the case. The section is not
\nlimited only for the benefit of the accused, and it will not be an
\nimproper exercise of the powers of the Court to summon a witness
\nunder the Section merely because the evidence supports the case for
\nthe prosecution and not that of the accused. The section is a general
\nsection which applies to all proceedings, enquiries and trials under
\nthe Code<\/a> and empowers Magistrate to issue summons to any witness at
\nany stage of such proceedings, trial or enquiry. In Section 311<\/a> the
\nsignificant expression that occurs is “at any stage of inquiry
\nor trial or other proceeding under this Code”. It is, however,
\nto be borne in mind that whereas the section confers a very wide
\npower on the Court on summoning witnesses, the discretion conferred
\nis to be exercised judiciously, as the wider the power the greater is
\nthe necessity for application of judicial mind.”\n<\/p>\n
5.\t\tOn
\nthe other hand, learned counsel for the accused opposed the petition
\ncontending that  the application has been moved by the prosecution
\nonly for filling up the lacuna  which cannot be permitted  in
\nexercise of powers under section 311<\/a> of the Criminal Procedure Code.
\nThe learned Sessions Judge has found  enough independent material
\nand there is no further necessity of recalling the witness for the
\npurpose indicated by the prosecution.\n<\/p>\n
6.\t\tHaving
\nthus heard the learned advocates for the parties, I am of the opinion
\nthat the learned Judge has committed a serious error in disallowing
\nthe application of the
\npetitioners.  Firstly, previously, on behalf of the concerned accused
\n‘no objection’  was  endorsed to such an application being granted.
\nOn the basis of such ‘no objection’, the learned  Additional Sessions
\nJudge  also  passed an order allowing the application of the State.
\nAny further order would amount to reviewing such an order which is
\nnot permissible in criminal jurisprudence.  However, since such
\nrecall was also on the ‘no objection’ endorsed by the prosecution, I
\ndo not propose to decide this petition only on this ground.\n<\/p>\n
7.\t\tOn
\nthe merits of the order, I find that the learned Judge has  failed to
\nexercise the jurisdiction vested in him.  As observed by the Apex
\nCourt in the decisions noted herein-above, the Trial Court is
\nempowered to recall a witness who has already been examined, at any
\nstage and re-examine him if his evidence appears to be essential to
\nthe just decision in the case.  Thus, while the provision vests
\ndiscretionary powers in the Court  under certain circumstances, it is
\nincumbent upon the court to exercise such powers.\n<\/p>\n
8.\tIn
\nthe present case, the prosecution  had examined the witness to prove
\nthe alleged sting operation during which  the accused had  allegedly
\nmade certain voluntary disclosures.  The said accused were identified
\nby the witness before the Court.  However, the important element of
\nidentifying the voices of the accused in the DVD prepared through
\nsuch sting operation was not  completed by the prosecution,
\nfor which purpose, the application was moved. In my opinion, such
\napplication ought to have been granted which would only further the
\nends of justice.  Accused would have sufficient opportunity to
\ncross-examine  the witness, if before the Court he makes  any adverse
\ndeposition.   Simply because the prosecution did not put such a
\nquestion at the relevant time, in the present case, would not
\npreclude the learned Judge from exercising powers under section 311<\/a>
\nof the Criminal Procedure Code particularly looking to the complexity
\nand enormity of the offence alleged.\n<\/p>\n
9.\t\tThe
\nfact that the witness was a leading Journalist  who had made detailed
\ndisclosures before the Court would not be a reason enough to deny his
\nrecall if  on an important aspect his further evidence is necessary.
\nThe fact that FSL report  regarding voices of the accused  is not
\navailable would surely be not a ground for not recalling the witness.
\n The reason that the witness cannot be stated to be an expert witness
\n who can depose about the voices in the DVD is a curious reason. The
\nwitness  had, according to him, carried out the sting operation and
\nrecorded the same on audio and video.   Identification of the voices
\nand faces by him in such an audio and video would be as one having
\npersonal knowledge and not as a expert.  Identifying the accused
\nbefore the Court is vitally different from identifying them in the
\nvideo recordings.\n<\/p>\n
10.\t\tIn
\nthe result,the  petition is allowed.  The impugned
\norder dated 11.10.2010 passed by the learned Additional Sessions
\nbelow application Ex.1457 is set aside.\n<\/p>\n
 PW 313 shall be recalled and  examined by the Court on such date as
\nmay be convenient to the Court after putting the State as well as the
\naccused to notice.  The petition stands disposed of accordingly<\/p>\n
\t\t\t\t\t\t(Akil
\nKureshi, J.) <\/p>\n
(vjn)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court State vs Mangilal on 18 July, 2011 Author: Akil Kureshi, Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-253218","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nState vs Mangilal on 18 July, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-vs-mangilal-on-18-july-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Mangilal on 18 July, 2011 - 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