IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No 94 of 2004 with CRIMINAL REVISION APPLICATION No 142 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE C.K.BUCH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 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? -------------------------------------------------------------- SHEIKH MADINABIBI MUSTAFABHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Revision Application No. 94 of 2004 MR JITENDRA MALKAN WITH MR. NOORBHAI SHAIKH, MR. SHIRAJBHAI MALIK, MR.RAKESH TRIPATHI AND MS. B.K. RAJPUT for Petitioner No. 1 MR AD OZA, PUBLIC PROSECUTOR for Respondent No. 1 MR SV RAJU for Respondent No. 2,35 MR BS PATEL for Respondent No. 3 MR YF MEHTA for Respondent No. 4-5,31-32 MR PR NANAVATI for Respondent No. 6,27-28 MR HARESH J TRIVEDI for Respondent No. 7,18-19,24 MR KH BAXI for Respondent No. 8 MR YATIN SONI for Respondent No. 9-11 MR KARTIK V PANDYA for Respondent No. 12 HL PATEL ADVOCATES for Respondent No. 13,29-30,36 MR PS CHAMPANERI for Respondent No. 14 NOTICE SERVED for Respondent No. 15 MR G RAMAKRISHNAN for Respondent No. 16-17 MR UA TRIVEDI for Respondent No. 20-22 MRS RANJAN B PATEL for Respondent No. 23 MS ASHA D TIWARI for Respondent No. 25 MS KIRAN D PANDEY for Respondent No. 26 MR RR MARSHALL for Respondent No. 33-34 MR BHARGAV N BHATT for Respondent No. 37-41 2. Criminal Revision Application No. 142 of 2004 SUO MOTU for Petitioner No. 1 MR AD OZA, PUBLIC PROSECUTOR for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE C.K.BUCH Date of decision: 12/10/2004 CAV JUDGEMENT 1. The petitioner-original complainant has moved this Court by filing Cri.Rev. Application No.94/2004 invoking jurisdiction of this Court under Sec.397 R/w Sec.401 of The Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), challenging the order passed by ld. Addl. Sessions Judge, Fast Track Court of District Panch Mahals at Godhara dated 20.1.2004 passed below application Exh.156 in Sessions Case No.160/2002 and Sessions Case No.59/2003. On perusal of certified copy of the application exh.156 submitted in the proceedings of above-referred two Sessions Cases, it emerges that by pointing out certain irregularities and infirmities, the complainant requested the Court to recall Seven witnesses examined by the prosecution invoking the powers vested with the Court under Sec.311 of CrPC. In the relief clause para-10 of the application exh.156, the complainant prayed for recalling of following seven witnesses and also simultaneously prayed that their depositions may be recorded in light of the contentions raised in the application. These witnesses are:- (i) P.W.2 Chandubhai Shankarbhai (ii) P.W.3 Rameshbhai Chandubhai Nayak (iii) P.W.4 Nanabhai Kalubhai Harijan (iv) P.W.7 Hunedbhai Junedi Dahodwala (v) P.W.8 Babubhai Fulabhai. (vi) P.W.12 Kantibhai Madabhai. vii) P.W.13 Bharatbhai Budhabhai. 2(i) It is not a matter of dispute that the petitioner is the only complainant of the offence registered with Kalol Police Station of District Panch Mahals being CR No.I.41/2002 on 3rd March 2002. The complaint discloses various offences punishable under Indian Penal Code and also offence punishable under Sec.135 of the Bombay Police Act. After registration of offences punishable under sections 143, 147, 148, 149, 392, 397, 153(A), 201, 436, 120(B) of Indian Penal Code, the police also added one more offence punishable under Sec.376 of Indian Penal Code. (ii) Initially, a group of accused was chargesheeted and the criminal case registered against them was committed to the Court of Sessions and the same was registered as Sessions Case No.160/2002. Thereafter, a supplementary chargesheet came to be filed against one another group of accused persons for the same crime and Sessions Case No.59/2003 is registered against other group committed on account of that chargesheet. Accused of both the Sessions Cases are facing consolidated trial for the charges levelled against them. It is told that the evidence is recorded as per the proceedings drawn in Sessions Case No.160/2002. (iii) The prosecution has produced certain documents along with list exh.20 as provided under Sec.294 of CrPC. Many of these documents have been accepted in evidence without formal proof on admission as provided in the said Section. When the Court was proceeding with the trial, the petitioner found that material irregularities have been cropped up because of certain inactions on the part of either the Court and/or of ld. Special Public Prosecutor ( ld. Spl. PP for short). In paras 5, 6, 7 and 8 of the application exh.156, the petitioner attempted to point out some of such irregularities and infirmities that may result into serious prejudice to the case of the prosecution and it was submitted before the trial Court placing reliance on the decisions namely (i) Koli Nana Bhana & Ors. v/s State of Gujarat, 1984 GLH 1055, (ii) Kharad Vallabhbhai Savaji & Ors. v/s State of Gujarat, 1995(2) GLR 1365, and (iii) Chandrasinh @ Chandubha Lalubha v/s State of Gujarat, 2002(2) GLR 960, that it is the duty of the trial Court to ensure that the attention of all the witnesses named in the application exh.156 is drawn to each fact stated by them in their respective police statements and if required, the witnesses should be appropriately contradicted or confronted. Unless that contradictions or omissions are brought on record, they can not be legitimately proved which may result into serious prejudice to the prosecution and would not give a rise to the scope for the Court to condemn or critisize that particular witness, unless the attention of that particular witness is drawn to his previous statement or statements recorded by the police during the course of investigation, and so, before recording the evidence of any other witness, the witnesses named in the application may be recalled. At this stage, it is relevant to note that it was open for the ld. Presiding Judge to say that the witnesses named in the application or any of them may be recalled for the purpose or for a limited purpose even after recording of evidence of all the prosecution witnesses except Investigating Officer or the Police Officer who has recorded the statements of these witnesses named in the application or has drawn any panchanama during the course of investigation. Ld. Addl. Sessions Judge, after discussing the provisions of Sec. 311 of CrPC, rejected the application referring two decisions of the Apex Court; namely (i) State of Bihar v/s Lalu Prasad alias Lalu Prasad Yadav, AIR 2002 SC P.2432, and (ii) Rajendra Prasad v/s Narcotic Cell through its Officer-in-Charge, Delhi, AIR 1999 SC P.2292. The reasons assigned mainly by the ld. Judge are that (i) ld. Spl.PP was permitted to ask the questions which could be asked during the cross-examination only and (ii) some of the witnesses referred in the application have supported the case of the prosecution and, therefore, they are not cross-examined by the prosecution and (iii) the original complainant should not be permitted to rectify the mistake or to fill-up the gaps or lacuna in the evidence left by any of the witnesses mentioned in the application. It is held that there is no element of error which can be said to be bonafide error in putting questions to the witnesses. It is also observed that it is not necessary to pass formal order while recording depositions of the witnesses that a particular witness be treated as hostile and, therefore, ld. Spl.PP is permitted to cross-examine the witnesses. (iv) It is important to note that ld. Spl.PP Mr. Gandhi has supported the case of the complainant and the Court was requested by ld. Spl.PP that the application of the original complainant may be allowed. However, the request extended by the ld. Spl.PP Mr. Gandhi was not acceptable to the Court. 3. The order rejecting application exh.156 is the order under challenge. When Revision Application No.94/2004 was taken up for admission hearing on 1.3.2004, the Court found that there is some strength in the grievances raised by the petitioner. So, keeping the question as to the locus of the complainant open, the Court ordered to issue notice to the respondents and the same was made returnable on 8.3.2004. On perusal of the order under challenge as well as xerox copies of the depositions of Prosecution Witness Nos. 2, 3, 4, 7, 8, 12 & 13 tendered by Mr. Malkan, ld. counsel appearing for the petitioner, the Court initiated suo motu revision proceedings and directed the Registry to issue notice to the accused persons to show cause as to why reliefs prayed in the Revision Application filed by the original complainant and/or any other appropriate orders which are likely to go to the root of the conduction of the trial, should not be passed. Because of this order, second Revision Application i.e. Cri. Revision Application No.142/2004 came to be registered in exercise of the revisional powers. Meanwhile, further proceedings of the trial has been stayed. In the very order, the Court ordered to join ld. Spl.PP conducting the trial as party-respondent in Cri. Rev. Application No.94/2004 as well as Cri. Rev. Application No.142/2004 and ld. Spl.PP conducting the trial was asked to appear in person before the Court on the next date of hearing so that the Court can ask certain questions as to the role as Public Prosecutor in conducting the trial. 4. On 8.3.2004, the mater was again listed for hearing. Mr. Gandhi, ld. Spl.PP appearing in the trial Court in both the Sessions Case appeared in person before the Court with his ld. counsel Mr. J.B.Pardiwala. Ld. Sr.Counsel Mr. S.B.Vakil along with ld. counsel Mr. J.B. Pardiwala addressed the Court and ld. PP Mr. Oza appearing for the State of Gujarat addressed the Court and submitted that the State is supporting the cause of the complainant and Mr. Gandhi has also supported the complainant before the trial Court and had requested the Court to allow the application exh.156. So, there is no conflict of interest between the State and the complainant. On the contrary, the State has joined the cause of the complainant. So, by passing detailed order, the Court withdrew the notice issued against ld. Spl PP Mr. Gandhi appearing in the trial Court on 8.3.2004. I would like to quote relevant paras of the order passed by this Court on 8.3.2994:- "5. Mr. S.B. Vakil has pointed out that Government of Gujarat vide Notification dated 28.11.2003 was pleased to terminate the services of Mr. J.G. Pathak and Mr. B.J. Trivedi who were appointed as Special Public Prosecutors in the case. It is submitted that because of certain allegations the State Government has taken this decision. These Special Public Prosecutors were communicated about the decision on or about 4.12.2003. The petitioner- original complainant preferred her application under Section 311 CrPC on 3.12.2003 and on that day Mr. B.J.Trivedi being unaware of his termination vide Notification dated 28.11.2003, even had accepted the copy of the application as Special Public Prosecutor. 6. It is rightly submitted by Mr. Vakil that as the application was already preferred by the petitioner- original complainant, it was not necessary for learned PP Mr. Gandhi to file such or similar application and it was open for him to support the say of the complainant. Mr. Vakil has taken me through the relevant para 7 of the order under challenge wherein the learned trial Judge has specifically observed that the learned PP Mr. P.L. Gandhi had submitted that the witnesses mentioned in the application are required to be recalled. According to Mr. Gandhi, in the circumstances, the application under section 311 of CrPC was required to be granted. For short, he has supported the complainant. So, the notice of personal appearance has taken a wrong message that Mr. Gandhi has committed some mistake and the same needs to be rectified. Of course, he is in charge of prosecution but the date of his entry in the proceedings as PP needs to be considered and it is more relevant. The statement made by Mr. Gandhi supporting the original complainant can be considered when the revision application is taken up for hearing for passing appropriate final orders. The submission has great force. 7. xxx xxx xxx xxx xxx 8. It is not disputed even by Mr. Malkan that all witnesses named/referred to in the application dated 3.12.2003 have been examined by the prosecutor prior to 5.12.2003. According to Mr. Oza, the stand of the Government is clear which is reflected in para 7 of the order passed by the learned Trial Judge. So, without entering into the merits of this revision application at this stage, with the above direction to the petitioner to serve notice to the accused persons (opponents) and accepting the submissions made by learned Senior Counsel Mr. Vakil, the notice served to Mr. Gandhi of this revision application is required to be revoked/discharged and it is at the same time observed that the order to issue notice to Mr. Gandhi was passed only with a view to see that, if any orders are passed in favour of the applicant, that can be implemented in true and correct spirit as on the relevant date of order passed, he was in charge of the trial as a PP. Accordingly, the order issuing notice to Mr. Gandhi is hereby revoked/ discharged and as a consequence of his, the name of Mr. P.L.Gandhi who is joined as opponent No.42, is ordered to be deleted." 5. Undisputedly, the respondents in both the Revision Applications are served. 6. On 8.4.2004, both the Cri. Revision Applications were listed for hearing, but at the request of ld. counsel Mr. SV Raju appearing for many of the respondent accused persons, hearing was adjourned to 15.4.2004. On 15.4.2004, considering the development in some other riot cases, a pointed query was raised to Mr. Malkan, ld. counsel appearing for the petitioner- complainant and it was clarified by Mr. Malkan that the present petitioner has not moved the Hon'ble Apex Court and is not at present thinking to move the Apex Court to get the trial transferred elsewhere than the Court of Sessions at Godhara, Dist: Panch Mahals. Mr. Malkan has of course orally clarified that the petitioner is not contemplating to move any other petition for transfer of Sessions Case from District Panch Mahals to any other district in the State or to change ld.Spl.PP Mr. Gandhi who has been entrusted the trial by the State. The Court ordered the Registry to see that R & P of Sessions Case No.160/2002 is brought before the Court especially in view of Suo motu revisional proceedings initiated by the Court. R & P are called for and they are before the Court. 7. I have heard ld. counsel Mr. Malkan appearing for the petitioner, ld. PP Mr. Oza for the State supporting the case of the petitioner. I have also heard ld. counsel Mr. S.V. Raju, Mr. Y.F.Mehta and Mr. Bhargava Bhatt appearing for the respondents accused at length. Meanwhile, ld. counsel appearing for the respondents have adopted the arguments advanced by ld. counsel Mr. SV Raju. The anxiety of ld. counsel appearing for the respondents expressed before the Court is that this Court should hear and record the finding on the preliminary points which are raised before the Court. However, for the sake of convenience, I have heard ld. counsel appearing for the parties on merits on all the points. 8. Preliminary objections raised by the ld. counsel appearing for the respondents are:- (i) That the petitioner- original complainant has no locus to file the present Revision Application especially when the case is instituted on police report submitted under Sec.173(2) of CrPC; (ii) That Revision Application is not maintainable on account of the statutory bar provided under sub-section (2) of Sec.397 of CrPC; (iii) This Court after passing the order on 1.3.2004, should not proceed further with the matter as the suo motu directions contemplated in the order are very wide, non-specific and beyond the scope of business allocated upon the Court as per the current Roster and suo motu proceedings along with revision application may be placed for hearing before the Bench taking up petitions moved under Sec.482 of CrPC or taking up Special Criminal Applications moved under Article 227 of the Constitution of India. Considering the gravity of the offence, nature of charge levelled against the respondents accused, this Court should not pass the order casually allowing Revision Application because there is no need to interfere with the discretionary order, otherwise, it would be improper exercise of jurisdiction when the jurisdiction of this Court is limited. 9(i) Challenging the locus, it is argued that this Court considering the provisions of Sec.301(2) of CrPC should dismiss the Revision Application because the petitioner-original complainant has even no right to file an application under Sec.311 of CrPC requesting the trial Court to recall the witnesses. When the State has taken the cause of the complainant and all victims of the crime and ld. PP or APP in charge of the case is appearing and pleading the case before the trial Court, then the original complainant has no statutory right to address the Court unless statutorily provided. The prosecution when is in the hands of the State, only ld. PP or ld. APP appearing in the matter is supposed to conduct the prosecution and their advocate or pleader appointed by the original complainant at the most can instruct the ld. PP or ld. APP and if permitted by the Court, the complainant or the pleader appearing for the complainant can submit written arguments after the evidence is closed in the case. Prior to that stage, the complainant or the pleader appearing for the complainant has no role to play in conduction of the trial. Merely because Mr. Gandhi, ld. APP appearing for the prosecution has supported the case of complainant verbally, it can not be said that the application to recall the witnesses was filed by him or was at the instance of the prosecuting State. The application was not even submitted through the ld. PP appearing in the matter nor it was submitted even by Mr. Gandhi that application may be treated as an application filed on behalf of the State. So, for all purposes, an application to recall witnesses was by the present petitioner Madinabibi and ld. Judge could have rejected the application solely on this ground without entering into the merits of other legal and special issues raised before the Court. Mr. Bhargav Bhatt, ld. counsel appearing for one of the respondents accused at one point of time during the course of oral submissions had insisted that point of locus standi should be decided first and till the verdict on the issue of locus standi is recorded by the Court, Revision Application on other points even may not be heard. To avoid piecemeal hearing, ld. counsel appearing for the parties are heard on all points, but in view of the nature of submissions made by ld. Counsel Mr. SV Raju and Mr. Bhargava Bhatt, it would be proper to answer the point of locus standi raised by the respondents original accused first. In the decision reported in the case of Ashwinbhai Shambhu Prasad v/s National Rayon Corporation, reported in 24(1) GLR 522, the Court has observed that as soon as the case is committed to the Court of Sessions as provided under Sec.225 of CrPC, ld. PP would be in charge of the case and the only right which a private complainant or his Advocate would be to sit by the side and assist the ld. PP at the best as provided under Sec.301(2) of CrPC. The objects and reasons incorporated in Clause 231 to 243 of CrPC (Sec.225 to 237 CrPC) make this further clear and any proceedings commencing after the committal by the Magistrate and its further progress from that stage before the Court of Sessions, it is only the ld. PP who is to be in charge of the conduction of the proceedings and the private complainant can not have any right to participate and only limited exception thereto is carved out in Sec.301(2) of CrPC. In the case of Ashwinbhai (supra), the case was initially instituted on a private complaint. In the present case, the case is instituted on a police report. So, the petitioner Madinabibi has no locus to submit an application to recall the witnesses under Sec.311 of CrPC. Referring to 2 different decisions of Andhra Pradesh High Court, this Court, in the case of Patel Varyabhai Jesangdas v. State of Gujarat and Another, reported in 1986(1) GLR 538, has held that:- "in a large majority of cases, the words "shall act" occurring in sec.301(2) have been construed as not including the power to plead or to examine witnesses and cross-examine the witnesses. As observed above, the language of sub-sec.(2) of sec.301 favours interpretation distinguishing the connotation of the word "act" and the word "to plead" and when the the Division Bench of our own High Court has taken a similar view, it shall have to be held that the order passed by the learned Judicial Magistrate, First Class, Vijapur does not suffer from any infirmity or illegality which requires to be corrected in the exercise of the revisional jurisdiction of this Court." (ii) In this cited decision, ld. JMFC, Vijapur had rejected the complainant's request that his private advocate Mr. NM Shah be permitted to conduct the case on behalf of the prosecution. According to ld. counsel Mr. Raju, in the present case, the original complainant by filing an application under Sec.311 of CrPC had made attempts to take the prosecution in her hands in the midst of the trial by filing of an application to recall witnesses directly and the rejection of the said application, therefore, may not be interfered with. The another decision relied upon and placed before this Court is the decision of the Kerala High Court in the case of Somasundaram v/s P.Chandra Bose and another, reported in 2001 Cri.LJ P.4370. In para-4 of the said decision, after quoting Sec.301 of CrPC, Kerala High Court has observed that :- "As is clear from the above while sub-section (1) stipulates that the Public Prosecutor or Assistant Public Prosecutor is competent to appear and plead without any written authority, what sub-section (2) enables is assistance to the Assistant Public Prosecutor by another counsel of the party's choice. However, as clear from the Section itself, what is important in this regard is the grant of permission by the Court. Even if the permission is granted, the role of the said counsel allowed to assist the Assistant Public Prosecutor is very much limited. The rein is still held by the Public Prosecutor. If the court so permits, the assisting counsel can submit written arguments after the evidence is closed in the case. That is all. The Section does not envisage any other authority or independent power for the counsel who is engaged to assist the Assistant Public Prosecutor. In other words, even after permission is granted for rendering assistance under S.301(2) of the Cr.P.C. the responsibility for conduct of the prosecution continues to be with the Assistant Public Prosecutor. It naturally follows that he is the person who is to decide how the prosecution should proceed and whether recall of any witness under S.311 is necessary. According to me, the right to file an application under Section 311 in a case where the Court grants permission under S.301(1) of the Cr.P.C. is available only to the Assistant Public Prosecutor and not to the counsel who is allowed to assist the Assistant Public Prosecutor." Kerala High Court, in the above-cited decision, in light of the facts, has held that the right to file an application under