1. Rule. Learned counsel, Mr.B.M. Gupata Jani waives service of notice of rule for respondents.
2. The present Revision Application has been filed by the State challenging the order passed below application, Exh.251 in Sessions Case No.100 of 2010 by the Learned Additional Sessions Judge, Court No.8, Ahmedabad dated 28.12.2011 allowing the witnesses to be examined as defence witnesses for the defence of alibi on the grounds stated in the memo of application inter alia that the defence may examine any person as witness but cannot examine the prosecution witness as defence witness without voluntarily consent of such witnesses.
3. Learned APP Mr.H.L. Jani has submitted that the defence of alibi, which is an afterthought, is now sought to be further developed on the basis of the deposition of the witnesses, who are to be summoned. Therefore, learned APP Mr.Jani submitted that such an application cannot be entertained and the defence of alibi can be established by the accused on the basis of the material and evidence. It was submitted that as the chargesheet and the papers of the chargesheet are required to be given to the accused with the list of witnesses, which the prosecution desire to examine. Similarly the defence is also required to give the papers in support of which he desirous to examine the witnesses and the purpose for which such witness is summoned. Learned APP submitted that if the witnesses were not permitted to be examined as a Court witnesses, there is no reason to permit them to examine as defence witnesses and the order passed below Exh.251 by the Court below has also granted such prayer.
4. Learned counsel, Mr.B.M. Gupta appearing for the respondents opposed the application and contended that in the interest of justice, if the documentary evidence are brought and the witnesses are permitted to be examined, it may not cause any prejudice to the prosecution. He submitted that the impugned order is just and proper and the present Revision Application filed by the State may not be entertained.
5. In view of the rival submissions, it is required to be considered whether the present Revision Application can be entertained or not.
6. The State has preferred this Revision challenging the impugned order for examination of the witnesses as defence witnesses and even though it has been recorded that the prayer by the accused for summoning some witnesses as Court witness have been declined and said order has not been carried further. The Court below has erroneously proceeded that the application can be allowed for the purpose of examining some witnesses as defence witnesses. It is well settled that the challenge to this order by the State is based on the score of exercise of discretion. Main thrust of the argument is that when the order below Exh.229 has not been challenged or carried further, such prayer could not have been granted permitting the defence to examine witnesses as defence witnesses. However as rightly submitted that the accused is permitted to examine the witnesses for the purpose of his defence but cannot examine the prosecution witnesses as defence witnesses. It is well accepted that it is for the party concerned including the prosecution to decide as to whom they would examine for establishing the case, they would proceed to establish the case. However, the Court in exercise of revisional jurisdiction cannot entertain and decide such issue, by which, it can compel the party to examine any witnesses or examine a particular witnesses. In other words, the Court cannot compel the prosecution to examine the witnesses and the witnesses of the prosecution even if they are not summoned or examined cannot be permitted to examine as defence witnesses, which would otherwise have conflict in the interest.
7. Therefore, the witness cannot be permitted to be examined as a witness particularly when such an application is given based on evidence of few witnesses, which is contradicted by the deposition of the I.O. The witnesses are to be summoned like the dog squade or other doctor or photographers when there is specific case of the prosecution that no such photograph has been taken or dog squad has been called as stated in the evidence of I.O. Therefore, such prayer cannot be granted to examine as witness without any evidence or justification. If such permission is ranted, it would amount to allowing the defence to proceed on the basis of hypothesis developed on the evidence of the witnesses during the course of trial. It is in these circumstances, such prayer cannot be granted.
8. It is in these situation, the present Revision Application of the State deserves to be allowed partly because except Dr.J.B. Shah, other witnesses cannot be permitted to be examined as defence witnesses, particularly, when they have not been permitted to be examined as Court witnesses also. It is evident that when the Court has declined to allow them as Court witness, without their evidence the conclusion can be arrived at. Therefore, the defence cannot be permitted to be filled up lacuna in such indirect manner by examining the prosecution witnesses as defence witnesses or by summoning the person as witness, who have not been there at all like the photographer or the dog squad. It is in these background when there is ample material on record, merely on the basis of the statements of the witnesses during the course of trial, such application given by the defence cannot be entertained. Therefore, the present application deserves to be allowed partly.
9. It is well settled that the scope of rivisional jurisdiction is very limited under Section 397 of the Criminal Procedure Code. The Hon'ble Apex Court in a judgment in the case of Raj Kumar v. State of Himachal Pradesh, reported in (2008) 11 SCC 76 has observed as under : “The revisional jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.”
10. A useful reference can be made to the observation made by the Hon'ble Supreme Court in a judgment in case of Krishnan & Anr. Vs. Krishnaveni & Anr., reported in AIR 1997 SC 987, wherein it has been observed that the High Court can entertain by exercising inherent or supervisory powers and to prevent the miscarriage of justice or abuse of the process.
11. In the circumstances, the present Revision Application stands allowed partly. The impugned judgment and order in Sessions Case No.100/2010 passed below application, Exh.251 by the Additional Sessions Judge, Court No.8, Ahmedabad City dated 28.12.2011 is hereby set aside and is hereby modified that except Dr.J.B. Shah, other witnesses cannot be permitted to be examined as defence witnesses in view of the detailed order passed in Criminal Revision application No.69/2012. Rule is made absolute to the aforesaid extent.
Sd/
(RAJESH H.SHUKLA, J.)
/patil