1. Rule. Learned APP Mr.H.L. Jani waives service of notice of rule for respondentState.
2. The present Revision Application has been filed by the applicantsoriginal accused being aggrieved and dissatisfied with the order passed below application, Exh.229 in Sessions Case No.100/2012 by the Learned Additional Sessions Judge, Court No.8, Ahmedabad City dated 22.11.2011 on the grounds stated in the memo of application.
3. Heard learned counsel, Mr.B.M. Gupta for the applicants and learned APP Mr.H.L. Jani for the respondentState.
4. Learned counsel, Mr.Gupta for the applicants submitted that initially the application was given for the court witness, which was not allowed. Therefore, the application has been filed to call the witness as defence witness in the interest of justice. Learned counsel, Mr.Gupta pointedly referred to the application and submitted that two witnesses, mother of the deceased as well as the complainant (uncle of the deceased) have stated in their depositions, which states that two witnesses should be examined. He pointedly referred to the deposition and submitted that Dr.Kapadiya was examined, who was called from Trivendram for the purpose of deposition in this matter and other doctors, who were very much in Government service were available, have not been examined. He submitted that Dr.Kapadiya, who has stated that he has not made any separate note during P.M. Report and as per the guidelines of Dr.Modi, it is necessary or incumbent to have such note of the findings. He also admitted that he was at training at Trivendram from where he was called. Therefore, learned counsel, Mr.Gupta submitted that in order to clear certain ambiguity, it is desirable that the witnesses as prayed for may be called with record. In support of his submissions, he has referred to and relied upon the judgments reported in 1972 GLR 914, AIR 1968 SC 178 and 1974 CAR (SC) 79. Therefore, learned counsel, Mr.Gupta submitted that the present application may be allowed and Revision Application filed by the state challenging the impugned order may be rejected.
5. Learned APP Mr.Jani however vehemently objected the present Revision Application contending inter alia that on the basis of the statements of few witnesses in the evidence, the Court may not entertain the application to examine the witness as court witness. He submitted that it is the prerogative of the prosecution as to whom to be examined as a witness and what material to produce to establish the charge against the accused. Learned APP, Mr.Jani submitted that the witnesses are not to be called for the purpose of creating some support for the theory of defence, which has been later on developed by the defence. He submitted that otherwise, during the course of trial, it may lead to chaos where the Court is requested to call the witness as Court witness after the witnesses for the prosecution have been examined and on that basis, some directions are sought for to produce the material or call the witness as defence witness. He submitted that the provisions of Section 311 of the Criminal Procedure Code is only enabling provisions for the court to examine the witnesses if it so desires. He submitted that it is well accepted that such a discretion vested in the Court under Section 311 of the Criminal Procedure Code has to be exercised judicially and, therefore, the present application may not be entertained.
6. He strenuously submitted that when the dog squad has not been called for or there is no dog squad called at the scene of offence, it is boggy raised by the defence. He submitted that based on such presumption, such an application is given to call for the evidence and examine the witness, which has no foundation or basis.
7. In view of the rival submissions, it is required to be considered whether the present Revision Application can be entertained or not.
8. A bare perusal of Section 311 of the Criminal Procedure Code would make it clear that it is enabling provisions, which empowers the Court in the interest of justice to call the witnesses and/or examine any person. For the underlying object of Section 311 of the Criminal Procedure Code, there may not be any failure of justice on account of any mistake by either party in bringing the evidence on record or leaving ambiguity in the statements of the witnesses, who have been examined by other side. Therefore, Section is in two parts. First part indicates that it leaves the discretion to the Court when word used is 'may. In second part, the expression 'shall' have been used. The first part is enabling provisions giving wide discretion to the Court in the interest of justice. Whereas the second part speaks an obligation on the Court when some new evidence or facts are relevant and essential to arrive at just decision of the case. It is thus supplementary provisions enabling the Court to examine the witnesses. However, the basic purpose is to enable the Court to arrive at just decision. At the same time, the word of caution has been expressed by the Hon'ble Apex Court that for wider discretion, more caution has to be shown. Therefore, as quoted by the Hon'ble Apex Court in a judgment while discussing about the scope of Section 311 of the Criminal Procedure Code reported in case of Lt. Col. V.K. Pandey Vs. Union of India & Ors., reported in AIR 2007 SC 3029 is required to be considered, wherein the Hon'ble Apex Court has observed as under : “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. ...... 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.”
9. As can be seen from the facts of the case, earlier an application was given for permitting the witnesses to be examined as court witnesses, which has been declined vide order dated 22.11.2011 passed below applications Exhs.227 & 229. The application, Exh.227 regarding the production of the record has been allowed partly. The application, Exh.229 has been rejected for summoning the witnesses like Dr.J.B. Shah, Dr.Ankur Pate etc. Similarly, the request for summoning dog handler of dog squad and/or photographer is declined. At the same time as prayed in application, Exh.227, record/register with regard to office of the Civil Surgeon for the postmortem is permitted to be produced.
Thereafter, the accused has given another application, Exh.251 to call very same person as defence witness though they have not been permitted to be examined as court witness as per the order passed below application, Exh.229. The said order below applications, Exhs.227 & 229 is a subject matter of challenging another application being Criminal Revision Application No.39 of 2012 by the State.
10. In view of the above, the contentions that it is not going to cause any prejudice and if the record is called and the witnesses are permitted to be examined, it is in the interest of justice, is required to be considered in background of the aforesaid relevant facts.
11. Though the submission has been made by learned counsel, Mr.Gupta referring to the statements of the witnesses to support such request for exercise of discretion under Section 311 of the Criminal Procedure Code, said prayer has not been granted as these prayers are not to be used as a matter of right by the defence. It is enabling provisions for the Court to arrive at a conclusion provided it is of the opinion that it is necessary and in the interest of justice to call for the witnesses to be examined as court witness, it may do so. In other words, the Court must be satisfied depending upon the facts of the case that it is necessary to arrive at just conclusion that such witness may be examined as a court witness or some document may be ordered to be produced and, thereafter, the Court can exercise the discretion. However, this discretion is vested in the court for arriving at just conclusion so that the Court is not left wanting in any material that such discretion has been vested with the Court. Moreover, considering the observation made in case of Zahira Habibulla H. Sheikh & Anr. Vs. State of Gujarat & Ors., reported in AIR 2006 SC 1367 as well as AIR 2004 SC 3114, the balance has to be struck between two rival claims. The Hon'ble Apex Court in a judgment reported in case of Zahira Habibulla H. Sheikh (supra) has observed that “The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the 'majesty of the law'”.
12. It is in this background, when the Court below has declined the application of the applicantsaccused to summon the witnesses stated therein as Court witnesses, which have not been challenged or carried further before the higher forum, now it cannot be permitted to come forward with an application that the said witnesses may be permitted to be examined as deference witnesses. The part of the prayer has been granted so far as the production of material is concerned. Again assuming that the postmortem note and record would be material in view of the specific allegations that particular doctor was called when he was outside the State for training, in order to take care of any such apprehension, when the record has been permitted to be produced as per the order passed below application, Exh.227, it would be in the fitness of things that Dr.J.B. Shah, who was one of the main doctors and who has performed the postmortem, is permitted to be called as defence witness. However at the same time, the request for summoning other witnesses and other record when there is specific case that no such dog squad had ever been summoned, no photographs have been taken and such fancy inquiry cannot be permitted to be made at this stage based on some statements given by one of the witnesses. It is in these situation, the present application deserves to be allowed.
13. 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
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.”
14. 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.
15. In the circumstance, the present Revision Application stands allowed partly. The impugned judgment and order in Sessions Case No.100/2010 passed below application, Exh.229 by the Additional Sessions Judge, Court No.8, Ahmedabad City dated 22.11.2011 is hereby set aside to the aforesaid extent that Dr.J.B. Shah is permitted to be examined as Court witness. Rest of the prayers for examination of dog squad and photos or calling for any other witnesses is not entertained or granted. Rule is made absolute to the aforesaid extent.
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(RAJESH H.SHUKLA, J.)