JAYESHKUMAR MANGALDAS VASETIYAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Learned APP Mr.K.P. Rawal waives service of notice of rule for respondent No.1 State.

(2.) Heard learned advocate Mr.Ashish M.Dagli for the applicant and learned APP Mr.K.P. Rawal for the respondent No.1 State.

(3.) The applicant herein has challenged the impugned order dated 12.4.2016 below application at Exh.77, whereby the Addl.Public Prosecutor in Special (ACB) Case No.7 of 2012 before the Special Judge of Limbdi has prayed to recall the complainant Haji Mahammadbhai Husseinbhai Saiyed, who was examined at Exh.18 for his further crossexamination by the prosecutor only because he has admitted in his cross-examination by the advocate for the accused that accused had explained it to the I.O. that he has not accepted the amount in question as bribe, but it was the amount returned to him which was borrowed by the son of the complainant from him. If we peruse such application, though it may not be the sole ground to interfere with in the impugned order, the fact remains that the A.P.P. has not assigned any factual details or reasons, based upon the facts and why the prosecuting agency wants to crossexamine the complainant after a long gap of nine months. It is undisputed fact that deposition of complainant has started on 29.11.2012 and his cross-examination was over on 25.6.2013. Thereby, deposition of complainant was continued for a period of nine months, may be on given few dates only, but the fact remains that complainant was very well before the Court in witness-box throughout the period of nine months and therefore, the prosecution could have certainly verified all aspects of the case for examining the complainant on any issue. Therefore, though there is no period of limitation for exercising jurisdiction u/s.311 of the Criminal Procedure Code ('Code', for short), under which such application is filed and though the Section categorically provides that Court may at any stage of inquiry or trial or other proceedings, recall the witnesses, the fact remains that inordinate delay or selectiveness for applying to recall a witness can certainly be considered while deciding such application u/s.311 of the Cr.P.C. while passing the order to recall any witness.