JANAKBHAI KANUBHAI THAKKAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present Revision Application has been preferred against the order dated 7th March, 2006 below application Exh. 66 in Sessions Case No. 76 of 2004 passed by the Additional Sessions Judge, Fast Track Court no.1, Ahmedabad (Rural), Ahmedabad, whereby the application given by the present applicants under Section 311 of the Code of Criminal Procedure for examination of certain witnesses referred to in the application Exh. 66, as court witnesses, has been dismissed. Facts of the case :

(2.) I have heard the learned Senior Advocate Mr. P.M.Thakkar for the applicants, who has mainly submitted that if the application Exh. 66 is dismissed, it takes away the crucial right of cross-examination of those witnesses by the applicants. These witnesses ought to be examined as court witnesses so that the present applicants being accused in sessions case can easily cross-examine and bring on record certain material of investigation on record. The witnesses who are named in Exh. 66 are, in fact, police officers who initiated investigation as an accidental death, whereas the charge-sheet has been filed against the applicants for the offences punishable under Sections 302, 323, 504 and 506(2) read with Section 114 of Indian Penal Code. This aspect of the matter has not been appreciated by the trial court while passing the impugned order dated 7th March, 2006 below Exh. 66 in Sessions Case no. 76 of 2004 and hence the impugned order deserves to be quashed and set aside.

(3.) I have heard the learned Additional Public Prosecutor for the respondent State, who has submitted that the examination of witnesses and dropping of witnesses thereof, all depends upon the wisdom of the Public Prosecutor who is conducting the case. He is the best navigator of the case. The learned APP has also relied upon the decision rendered by the Hon"ble Supreme Court in the case of Hukam Singh v. State of Rajasthan reported in (2000) 7 SCC, 490, and more particularly para-14 thereon and pointed out that if any witness has not been examined by the Public Prosecutor, it is for the defence to cite them as their defence witnesses and therefore, the witnesses who are dropped by the prosecution by the order of the competent trial court, can be examined as defence witnesses by the accused. Secondly, it is also submitted by the learned Additional Public Prosecutor that the application Exh. 66 is a premature application as the statements under Section 313 of the Code of Criminal Procedure have not yet been recorded. The defence witnesses can be examined only after the statements under Section 313 of the Code of Criminal Procedure have been recorded. Thirdly, it is also submitted by the learned Additional Public Prosecutor that the apprehension expressed by the applicants is uncalled for and unwarranted and they are not going to lose any right of cross-examination of the witnesses who are referred to in the application Exh. 66. If those witnesses are examined as defence witnesses, and if they are giving depositions in favour of the present applicants, (original accused) then there is no need of any cross-examination by the present applicants and if the witnesses named in the application Exh. 66 are hostile to the present applicants, they are not losing the right of cross- examination of those witnesses under Section 154 of the Indian Evidence Act, 1872. Thus, the apprehension shown by the present applicants before this Court as well as before the trial court as referred in para-2 of the impugned order is uncalled for and unwarranted. In view this, the impugned order dated 7th March, 2006 below application exh. 66 in Sessions case no. 76 of 2004 passed by the trial court is absolutely true and correct and in consonance with facts of the present case.