IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No 316 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE D.P.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- UGABHAI VAGHABHAI FAFAL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Revision Application No. 316 of 2003 MR SK BRAHMBHATT for Petitioner No. 1 THROUGH JAIL for Petitioner No. 1 Ms Paurnami Sheth, APP for Respondent No. 1 NOTICE SERVED for Respondent No. 2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE D.P.BUCH Date of decision: 05/09/2003 ORAL JUDGEMENT Rule. Ms Paurnami B Sheth, learned APP appears and waives service of notice of rule for the State. 2. The petitioner is facing trial before the learned Addl.Sessions Judge, Gandhidham, Kachchh in Sessions Case No.12/2000 for offence punishable under section 498A of IPC. It seems that about 11 witnesses have been examined in the said matter. Out of them, the following witnesses were required to be recalled: 1. PW-2 Dhanjibhai Sadabhai 2. PW-3 Malabhai Kachrabhai 3. PW-4 Mithiben Malabhai 4. PW-5 Dr. Nitin Virabhai Vijoda The petitioner contended before the trial court that since the jail building at Bachau at Kachchh has collapsed on account of the earthquake which took place on 26.1.2001, the petitioner was shifted to Jamnagar and he was required to be brought from Jamnagar to Gandhidham for conduct of the trial. It is also the contention of the petitioner that he was not taken to Gandhidham in the early hours and, therefore, there was no time to discuss the matter with his Advocate and therefore, cross examination of those four witnesses was not adequate and certain questions could not be placed in cross examination to the said four witnesses. The petitioner, therefore, applied to recall the said four witnesses for further cross examination under section 311 of the Code of Criminal Procedure, 1973 (for short, 'the Code'). After hearing, the learned Addl.Sessions Judge dismissed the said application. 3. Feeling aggrieved by the said order of the trial court, the petitioner has preferred this application before this Court. During the course of hearing, learned Advocate for the petitioner argued that the petitioner was required to be taken from Jamnagar to Gandhidham every day at evening hours and he was required to be brought back to Jamnagar since there is no jail in Gandhidham. It is also his argument that the jail building of Bachau has collapsed and, therefore, the petitioner was required to be shifted to Jamnagar. This fact is not in serious dispute. At the same time, learned APP argues that the aforesaid witnesses were examined on the following dates: Witness No.2 7.9.2002 Witness No.3 and 4 11.9.2002 Witness No.5 13.9.2002 That despite the said position, above application has been submitted on 30.11.2002. This shows that the application submitted was very late and, therefore, considering the delay, it was required to be dismissed by the trial court. That even otherwise, the petitioner could have made a grievance soon after the first witness was examined. That no such grievance was made and, therefore, no case was made out for recalling the witnesses. 4. On hearing, it is found that the petitioner was required to be taken to Gandhidham from Jamnagar on each and every date. In that view of the matter, the petitioner was not in a position to discuss the matter with the advocate for effective cross examination of the witnesses. Effective cross examination is a useful weapon to be used by the defence and if the cross examination is not effective, then in that event, the said fact may go against the interest of the petitioner. Therefore, the petitioner apprehends that cross examination of the witnesses was not effective in absence of a detailed discussion with the Advocate and there was no time for such discussion. 5. In view of the above position, it can be said that the petitioner did not have sufficient opportunity to discuss the matter with the Advocate and, therefore, an opportunity may be given to the petitioner to have the benefit of recalling of the witnesses for further cross examination. 6. This revision application is allowed. The impugned The mpugned order dated 2.4.2003 recorded by the learned Addl.Sessions Judge at Gandhidham in Kachchh district in Sessions Case No. 12/2000 below application Exh.39 is ordered to be set aside and the trial court is directed to recall the said four witnesses being witnesses No.2, 3, 4 and 5 for further cross examination by the present petitioner. Necessary summons will be issued by the said Court. Rule is made absolute. D.S. permitted. [D P Buch, J.] msp