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R/CR.RA/843/2023 JUDGMENT DATED: 12/09/2023

2023:GUJHC:47282

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL REVISION APPLICATION NO. 843 of 2023

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?

2 To be referred to the Reporter or not ? No

3 Whether their Lordships wish to see the fair copy of No

the judgment ?

4 Whether this case involves a substantial question of No

law as to the interpretation of the Constitution of
India or any order made thereunder ?

==========================================================
DHAVAL GUNVANTRAY KOTADIYA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR SUDHIR NANAVATI, SR. ADVOCATE with MR VANDAN K BAXI(5863)
for the Applicant(s) No. 1
NANAVATI & NANAVATI(1933) for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR LB DABHI, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

Date : 12/09/2023
ORAL JUDGMENT

[1.0] 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 herein – original accused to quash and set aside the
impugned order dated 11.05.2023 passed below application

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Exh.31 in Sessions Case No.141 of 2021 by the learned 4 th

Additional Sessions Judge, at Mirzapur, Ahmedabad (Rural)
(hereinafter referred to as “learned Sessions Judge”), whereby
the application Exh.31 filed by respondent No.2 herein – original
complainant / victim has been allowed.

[2.0] The succinctly stated facts of the case are as under:

[2.1] An FIR being CR No.11191045202065 of 2020 dated

26.11.2020 came to be filed by respondent No.2 herein with Sola
High Court Police Station, Ahmedabad for the offences
punishable under Sections 376, 406 and 493 of the Indian Penal
Code, 1860 (hereinafter referred to as “IPC”) against the present
applicant.

[2.2] After investigation, police submitted final report in the

form of charge-sheet under Section 173 of the CrPC which
culminated into Sessions Case No.141 of 2021. During the
pendency of sessions case, respondent No.2 filed an application
on 16.01.2023 requesting to allow her to give her fresh
deposition, which was not pursued by the respondent No.2 and
was kept pending. Thereafter, respondent No.2 gave an
application Exh.31 for recalling of her evidence which came to be
allowed by the learned Sessions Judge vide the impugned order.
Hence, present revision application.

[3.0] Learned Senior Advocate Mr. Sudhir Nanavati with learned

advocate Mr. Vandan Baxi for the applicant has submitted that
the learned Sessions Judge has committed an error in allowing
application Exh.31 and recalling the witness and the impugned

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order is bad in law as once witness had deposed and turned

hostile then with a view to fill up the lacuna, application Exh.31
was filed by the prosecutrix, which has been allowed by the
learned Sessions Judge by the impugned order. It is settled law
that to fill up lacuna recall of witness is not permissible. The
learned Sessions Judge failed to appreciate the fact that witness
has already been examined at Exh.10 on 12.05.2022, wherein she
turned hostile and thereafter, after a lapse of one year,
respondent No.2 filed application Exh.31 to recall herself with
inordinate delay and without any cogent reason and the learned
Sessions Judge has allowed the said application. Respondent
No.2 had also submitted application Exh.24 with similar prayer on
16.01.2023 seeking similar prayer. The said application Exh.24
was pending for adjudication and application Exh.31 for recall of
witness which subsequent in point of time came to be decided.
Further, it is submitted that respondent No.2 intended to snatch
money. Respondent No.2 after filing the FIR, received an amount
of Rs.19,50,000/- from the applicant and she had purchased an
apartment for herself, sale deed for which was executed on
26.04.2022. The dispute between the applicant and respondent
No.2 is totally resolved and Vastu Puja was also performed in the
new apartment together by the applicant and respondent No.2.
Further, the respondent No.2 has put criminal machinery in
motion to pressurize the present applicant to succumb to all the
demands of the respondent No.2. In view of the above, he has
requested to allow the present application.

[4.0] Per contra, learned APP Mr. L.B. Dabhi appearing for the
respondent – State has vehemently opposed the present
application and stated that it is true that respondent No.2 was

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examined at Exh.10 and she turned hostile and she did not
support the case of prosecution. Thereafter, respondent No.2
filed application and stated that as the applicant was threatening
her with dire consequences of her life as well as minor child, she
could not depose against the applicant-accused freely and had
deposed under fear. Hence, the learned Sessions Judge has
properly exercised the jurisdiction under Section 311 of the CrPC.
Hence, he has requested to dismiss the present application.

[5.0] Respondent No.2 is personally present before the Court

and she has adopted the submissions made by the learned APP
and has requested to dismiss the present application.

[6.0] Heard learned Senior Advocate appearing for the applicant

and learned APP appearing for the respondent – State of Gujarat.

[7.0] At the outset, it is worth to mention that this Court is of

considered view that present criminal revision application being
against an “interlocutory order” is barred under Section 397(2) of
the CrPC, is not maintainable however, as the learned Senior
Advocate for the applicant has argued that earlier coordinate
Bench had issued Notice and granted interim relief in terms of
paragraph No.15(c) in favor of the applicant and argued the
matter on merits, hence, considering the powers under Section
397 read with Section 401 of the CrPC, this Court exercising the
discretionary revisional jurisdiction is examining the correctness,
legality and propriety of the impugned order.

[8.0] Present applicant – accused is facing charge under Sections

376, 406 and 493 of the IPC. After the investigation, charge-sheet

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is filed which culminated into Sessions Case No.141/2021. The

respondent No.2 – original complainant is examined at Exh.21.
She turned hostile on 12.05.2022. It reveals that on 12.05.2022,
cross-examination of respondent No.2 remained incomplete and
it reveals from the compilation produced on record that on
16.01.2023, recording of her evidence was completed.

[8.1] Further, going through the record it appears that on the

very same day i.e. on 16.01.2023, application below Exh.24 came
to be filed by the respondent No.2 wherein she has stated that
she was under depression and she wants to depose once again.
The said application filed below Exh.24 was ordered to be “fixed
for hearing.” Then, another application Exh.31 came to be filed
wherein, no date is mentioned but, it appears that, said
application Exh.31 is filed by respondent No.2 through learned
APP of the Court and copy of said application is received by other
side on 08.05.2023, wherein respondent No.2 has categorically
stated the reason to recall herself. She has stated that at the
instance of present accused, she had deposed in favor of accused
as she was threatened that if she depose against the applicant-
accused then she will have to face dire consequences and hence,
on material particulars, she has not supported the case of
prosecution as she was under threat of her life as well as of her
child. On account of such threat extended by the accused, the
respondent No.2 – prosecutrix could not depose freely against
the accused.

[8.2] Considering the aforesaid fact and giving opportunity of of

being heard to parties, the learned Sessions Judge has been
pleased to allow application Exh.31 and recalled the witness

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under Section 311 of the CrPC with clarification that while

adjudicating the application, learned Sessions Judge has not
expressed any opinion on merits so far as statement of any
witness including the deposition of victim previously recorded is
concerned and learned Counsel for the applicant-accused shall be
at liberty to controvert the prosecutrix evidence in terms of
section 145 of the Indian Evidence Act and that probative value
of previous statement in writing and subsequent statement of
complainant – victim will be adjudicated at the final stage
without being influenced by the any observation made in the
order.

[8.3] Thus, going through the aforesaid fact, it clearly reveals

that the learned Sessions Judge has kept open the right of
accused to controvert the victim and not expressed any opinion
qua probative value of the statement of victim and it will be
adjudicated at the final stage of appreciation of evidence. In
aforesaid background, if we consider the present case, prima
facie it appears that the learned Sessions Judge has exercised the
power under Section 311 of the CrPC for the just decision of the
case. The power under Section 311 of the CrPC is a discretionary
power and underlying object of section 311 of CrPC is explained
by the Hon’ble Supreme Court in the case of V.N. Patil vs. K.
Niranjan Kumar and Others reported in (2021)3 SCC 661,
wherein the Hon’ble Supreme Court has observed in paragraphs
13 and 17 as under:

“13. The scope of Section 311 CrPC which is relevant for

the present purpose is reproduced hereunder:-
“311. Power to summon material witness, or
examine person present—Any Court may, at any

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stage of any inquiry, trial or other proceeding under

this Code, summon any person as a witness, or
examine any person in attendance, though not
summoned as a witness, or recall and re-examine
any person already examined; and the Court shall
summon and examine or recall and re-examine any
such person if his evidence appears to it to be
essential to the just decision of the case.”

17. The aim of every Court is to discover the truth. Section

311 CrPC is one of many such provisions which strengthen
the arms of a court in its effort to unearth the truth by
procedure sanctioned by law. At the same time, the
discretionary power vested under Section 311 CrPC has to
be exercised judiciously for strong and valid reasons and
with caution and circumspection to meet the ends of
justice.”

[8.4] Keeping in mind fact of the case, learned Sessions Judge has
considered that, in the case on hand, witness has stated that she
had deposed under threat and therefore, she turned hostile. The
Hon’ble Apex Court in the case of Ramesh & Others vs. State of
Haryana reported in 2016 4 LawHerald (SC) 3388, has been
pleased to discern reason for which witnesses are turning hostile
in paragraph Nos.40 and 41, which are observed as under:

“(40).On the analysis of various cases, following reasons

can be discerned which make witnesses retracting their
statements before the Court and turning hostile:
(i) Threat/intimidation.
(ii) Inducement by various means.
(iii) Use of muscle and money power by the accused.
(iv) Use of Stock Witnesses.
(v) Protracted Trials.
(vi) Hassles faced by the witnesses during investigation and
trial.

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(vii) Non-existence of any clear-cut legislation to check

hostility of witness.

(41).Threat and intimidation has been one of the major

causes for the hostility of witnesses. Bentham said:
“witnesses are the eyes and ears of justice”. When the
witnesses are not able to depose correctly in the court of
law, it results in low rate of conviction and many times
even hardened criminals escape the conviction. It shakes
public confidence in the criminal justice delivery system. It
is for this reason there has been a lot of discussion on
witness protection and from various quarters demand is
made for the State to play a definite role in coming out
with witness protection programme, at least in sensitive
cases involving those in power, who have political
patronage and could wield muscle and money power, to
avert trial getting tainted and derailed and truth becoming
a casualty. A stern and emphatic message to this effect
was given in Zahira Habibullah's case as well.”

Herein, the victim turned hostile as per her say due to

threat and intimidation and inducement by the accused. Threat
and intimidation has been one of the major cause of hostility of
the witness. Considering the aforesaid fact, the Hon’ble Supreme
Court in the case of Zahira Habibulla Sheikh (5) vs. State of
Gujarat reported in (2006)3 SCC 374 stated about the concept
of fair trial. Further, in the case of Natasha Singh vs. Central
Bureau of Investigation (State) reported in (2013)5 SCC 741,
the Hon’ble Supreme Court in paragraph 16 has observed and
held as under:

“16. Fair trial is the main object of criminal procedure, and

it is the duty of the court to ensure that such fairness is not
hampered or threatened in any manner. Fair trial entails
the interests of the accused, the victim and of the society,
and therefore, fair trial includes the grant of fair and proper
opportunities to the person concerned, and the same must

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be ensured as this is a constitutional, as well as a human

right. Thus, under no circumstances can a person’s right to
fair trial be jeopardized. Adducing evidence in support of
the defence is a valuable right. Denial of such right would
amount to the denial of a fair trial. Thus, it is essential that
the rules of procedure that have been designed to ensure
justice are scrupulously followed, and the court must be
zealous in ensuring that there is no breach of the same.
(Vide: Talab Haji Hussain v. Madhukar Purshottam Mondkar
& Anr., AIR 1958 SC 376; Zahira Habibulla H. Sheikh & Anr.
v. State of Gujarat & Ors., AIR 2004 SC 3114; Zahira
Habibullah Sheikh & Anr. v. State of Gujarat & Ors., AIR
2006 SC 1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam
(Mrs.), (2007) 2 SCC 258; Vijay Kumar v. State of U.P. & Anr.,
(2011) 8 SCC 136; and Sudevanand v. State through C.B.I.,
(2012) 3 SCC 387).”

[8.5] Considering the peculiar facts of the case on hand, if the

application of recall of the witness is turned down which
emphatically amounts to denial of fair trial to victim itself. The
Court has to keep balance interest of the victim. The Court has to
strike the balance between interest of both, the prosecution as
well as of the accused. If the complainant deposes under the fear
and threat, it amounts to denial of fair trial to her. In view of the
above, learned Sessions Judge has passed an order keeping in
mind the factual aspect and scale of balance between the
prosecution and accused. As the witness turned hostile due to
threat and considering the concept of fair trial and when
opportunity to cross-examine and controvert the witness is also
kept open and learned Sessions Judge has not opined about
earlier evidence of respondent No.2, prima facie, thus it appears
that there is no prejudice caused to the applicant herein. After
recording of the evidence and at the time of appreciation of
evidence, if the learned Sessions Judge comes to conclusion that
offence of perjury is made out then also, the Court may take

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appropriate or initiate proceedings at an appropriate stage also.

The prime duty of the Court is to do complete justice and with a
view to do substantial justice and keeping in mind the concept of
fair trial, Court should avoid the technicalities.

[8.6] The power under Section 311 of the CrPC is provided only
with a view to do substantial justice at any stage of the trial. The
scope and object of the provision of section 311 CrPC has been
discussed by the Hon’ble Supreme Court in paragraph 15 of
decision in the case of Natasha Singh (Supra), which reads as
under:

“15. The scope and object of the provision is to enable the

Court to determine the truth and to render a just decision
after discovering all relevant facts and obtaining proper
proof of such facts, to arrive at a just decision of the case.
Power must be exercised judiciously and not capriciously or
arbitrarily, as any improper or capricious exercise of such
power may lead to undesirable results. An application
under Section 311 Cr.P.C. must not be allowed only to fill
up a lacuna in the case of the prosecution, or of the
defence, or to the disadvantage of the accused, or to cause
serious prejudice to the defence of the accused, or to give
an unfair advantage to the opposite party. Further, the
additional evidence must not be received as a disguise for
retrial, or to change the nature of the case against either of
the parties. Such a power must be exercised, provided that
the evidence that is likely to be tendered by a witness, is
germane to the issue involved. An opportunity of rebuttal
however, must be given to the other party. The power
conferred under Section 311 Cr.P.C. must therefore, be
invoked by the Court only in order to meet the ends of
justice, for strong and valid reasons, and the same must be
exercised with great caution and circumspection. The very
use of words such as ‘any Court’, ‘at any stage”, or ‘or any
enquiry, trial or other proceedings’, ‘any person’ and ‘any
such person’ clearly spells out that the provisions of this
section have been expressed in the widest possible terms,

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and do not limit the discretion of the Court in any way.

There is thus no escape if the fresh evidence to be obtained
is essential to the just decision of the case. The
determinative factor should therefore be, whether the
summoning/recalling of the said witness is in fact, essential
to the just decision of the case.”

[9.0] In view of the above, the learned Sessions Judge has

exercised the discretion judiciously and it prima facie appears
that the witness is not recalled for filling up the lacuna by the
prosecution. In this regard, reference is also required to be made
to the recent pronouncement of the Hon’ble Supreme Court in
the case of Harendra Rai vs. State of Bihar reported in 2023
SCC OnLine SC 1023. In paragraph 114 of the said decision, the
Hon’ble Supreme Court has discussed the scope and object of
section 311 of the CrPC wherein also Hon’ble Apex Court has
been pleased to scrapped earlier deposition of hostile witness
and ordered to record a fresh deposition in the larger interest of
justice. In the case on hand, no earlier deposition scrapped or any
opinion expressed by the learned Sessions Judge.

[9.1] Even, otherwise as observed hereinabove, the impugned

order is an interlocutory order and has not decided any final or
substantive right of the parties. Considering the nature of order
passed by the learned Sessions Judge, which is barred under
Section 397(2) of the CrPC, the order is purely in the nature of an
“interlocutory order” and said order do not determine the right
of the parties. In view of the above, present revision application
is not maintainable against such an interlocutory order in view of
the law laid down by the Hon’ble Supreme Court in the case of
Sethuraman vs. Rajamanickam reported in (2009) 5 SCC 153.
Under such circumstances, this Court is of the considered view

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that the impugned order should not be interfered with in

exercise of revisional jurisdiction.

[10.0] In wake of aforesaid discussion, present application is

dismissed. Impugned order dated 11.05.2023 passed below
application Exh.31 in Sessions Case No.141 of 2021 by the
learned 4th Additional Sessions Judge, at Mirzapur, Ahmedabad
(Rural) is hereby confirmed.

[11.0] At this stage, learned Senior Advocate appearing for

the applicant requests to extend the interim relief granted by the
coordinate Bench vide order dated 12.07.2023 to enable the
applicant to approach the Hon’ble Supreme Court.
Considering the fact that interim relief is operating in favor
of the applicant since 12.07.2023, this Court deems it fit and
proper to extend the interim relief further for a period of 15 days
from today. Rule is hereby discharged.

Sd/-
(HASMUKH D. SUTHAR, J.)

Ajay

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