[1.0] RULE. Ms. C.M. Shah, learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent No.1 State. In the facts and circumstances of the case and with the consent of learned advocates appearing on behalf of the respective parties, present application is taken up for final hearing today. [2.0] Present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the applicant original accused No.1 to quash and set aside the impugned order passed below Exh.281 in Sessions Case No.137 of 2003 by the learned Principal Sessions Judge, Surat in exercise of powers under Section 311 of the CrPC by permitting the prosecution to recall the witness Babulal Bhavarlal Shah along with the necessary documentary evidences available with him.
[2.1] That the prosecution submitted application Exh.281 in Sessions Case No.137 of 2003 requesting to issue witness summons upon one Babulal Bhavarlal Shah who was already cited as a witness in the chargesheet, by submitting that he is a very crucial and important witness to be examined and infact he was already cited as a witness in the chargesheet, however, by mistake and/or through oversight he has not been examined by the prosecution. That by impugned order the learned Sessions Judge has allowed the said application permitting the prosecution to examine the said witness in exercise of powers under Section 311 of the CrPC.
[2.2] Being aggrieved and dissatisfied with the impugned order passed by the learned Principal Sessions Judge, Surat below Exh.281 in Sessions Case No.137 of 2003, the applicant herein – original accused No.1 has preferred the present Criminal Revision Application under Section 397 read with Section 401 of the CrPC.
[3.0] Shri Hardik Dave, learned advocate appearing on behalf of the applicant – original accused No.1 has vehemently submitted that the impugned order passed by the learned Principal Sessions Judge is required to be quashed and set aside as the impugned order has been passed without hearing the applicant or his advocate. It is further submitted that even no reasons have been assigned by the learned Sessions Judge while allowing the application Exh.281 permitting the prosecution to examine the witness in exercise of powers under Section 311 of the CrPC. It is submitted that it cannot be disputed that in exercise of powers under Section 311 of the CrPC, the Court can at any time summon the material witness and/or examine any person, however, for that the Court is to be satisfied that evidence of such person is essential for the just decision of the case. It is submitted that in the present case, nothing has been mentioned by the learned Principal Sessions Judge that the evidence of the witness who was sought to be examined is essential to the just decision of the case. Therefore, it is requested to allow the present Criminal Revision Application and remand the matter to the learned Sessions Court to decide the said application afresh and after giving an opportunity to the applicant – original accused No.1.
[4.0] Present Criminal Revision Application is opposed by Ms.
C.M. Shah, learned APP appearing on behalf of the State. It is submitted that as such the learned advocates appearing on behalf of the other accused were infact heard and infact they submitted no objections and therefore, the learned Judge passed the impugned order. It is submitted that as such no illegality has been committed by the learned Judge in allowing application Exh.281 and permitting the prosecution to examine the witness Babulal Bhavarlal Shah, who is a very important and crucial witness to be examined for the just decision of the case. It is submitted that as such the witness who is sought to be examined/summoned was already cited as a witness in the chargesheet and therefore, no prejudice shall be caused to the applicant if prosecution is permitted to examine the witness Babulal Bhavarlal Shah. It is submitted that as such the intention on the part of the applicant and other accused persons is to delay the trial on any ground and therefore, the present application has been preferred. It is submitted that as such as the R & P has been called by this Court, further trial has been stayed before the learned Sessions Court.
Making above submissions, it is requested to dismiss the present Revision Application.
[5.0] Heard learned advocates appearing on behalf of respective parties and considered the impugned order as well as R & P of the case received from the trial Court (which was called by the learned Single Judge). From the R & P it appears that even the copy of the application Exh.281 was neither served upon the applicant nor his advocate. It is not disputed that neither the applicant nor his advocate was heard by the learned Sessions Judge while passing the impugned order. From the impugned order it also appears that as such while allowing the application Exh.281, the learned Judge has not stated anything that the witness who is sought to be summoned and examined is essential to the just decision of the case. It is true and it cannot be disputed that the Court may at any stage of any inquiry, trial or other proceedings, summoning any person as a witness, or examine any person in attendance though not summoned as a witness or recalled and re examine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case. However, while passing the order under Section 311 of the CrPC, the concerned Court is required to atleast observe that the evidence of such person is essential for the just decision of the case. While passing the order under Section 311 of the CrPC, a detailed reasoned order is not required to be passed but atleast the learned Judge is required to mention that the evidence of such person is essential to the just decision of the case. From the impugned order it appears that nothing has been mentioned by the learned Judge while passing the impugned order under Section 311 of the CrPC.
[5.1] In view of the above, the impugned order deserves to be quashed and set aside and the matter is to be remanded to the learned trial Court to decide the said application afresh and passing an appropriate order as required under Section 311 of the CrPC and after giving an opportunity to the applicant and/or his advocate (as it is reported that so far as other accused are concerned, they were heard through their advocate and they gave their no objection and infact except the applicant no other accused have challenged the impugned order) [6.0] In view of the above and for the reasons stated above, impugned order passed by the learned Principal Sessions Judge, Surat below Exh.281 in Sessions Case No.137 of 2003 is hereby quashed and set aside and the matter is remanded to the learned Principal Sessions Judge to decide and dispose of the said application afresh in accordance with law and on merits and considering Section 311 of the CrPC and after giving an opportunity to the applicant and/or his advocate. However, it is made clear that this Court has not expressed anything on merits in favour of either parties more particularly in favour of the applicant – accused and the learned Principal Sessions Judge to decide and dispose of the said application in accordance with law and on merits and considering Section 311 of the CrPC. As agreed by the learned advocate appearing on behalf of the applicant, applicant – original accused No.1 shall appear before the learned Principal Sessions Judge either in person or through his advocate to make submissions on application Exh.281 on 3rd October 2012 and looking to the seriousness of the offence and the case and even otherwise the trial is sufficiently delayed because of the present proceedings, the learned Principal Sessions Judge to hear the said application on 3rd October 2012 and finally decide and dispose of the same within a period of one week thereafter i.e. on or before 10th October 2012 without fail and submit the compliance report before this Court. Rule is made absolute to the aforesaid extent. Registry is directed to return the Record & Proceedings of the case to the learned Principal Sessions Court, Surat immediately but not later than 29th September 2012 along with the writ of this order.
(M.R. Shah, J.) menon