PRATIK Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present petition has been filed by the petitioners-original accused under Section 482 of the Code of Criminal Procedure, 1974 (the Code) seeking quashing and setting aside the order dated 16.05.2016 passed below Exh.48 in Special Case (POSCO) No.45 of 2014 by the learned Special Judge (POSCO) City Civil Court No.2, Ahmedabad. Rule. Moxa Thakker, learned APP waives service of Rule for the respondent-State.

(2.) The brief facts leading to filing of present petition are as under:-

(3.) Learned advocate Mr.Tejas Shukla for learned advocate Mr.Vicky Mehta for the petitioner has submitted that the prosecution has already examined 2 to 12 witnesses, and thereafter, tendered a pursis at Exh.43 declaring that they do not want to lead any further evidence. Thereafter, the learned advocate for the petitioner has submitted his written arguments at Exh.44. It is submitted that after the arguments were concluded and the trial was posted for final judgment, prosecution submitted an application Exh.48 under Section 311 of the Code, inter alia, contending that at the time when the incident took place, the statement of the minor girl was recorded under Section 164 of the Code, however, the evidence of the minor girl is material and crucial for the decision of the trial, and therefore, she may be called as witness. Thus, learned advocate for the petitioner has submitted that in order to fill up the lacuna, such an application was made and the learned Civil Judge has committed grave illegality in allowing such application for calling the minor girl as a witness. In support of his submissions, learned advocate for the petitioner has placed reliance on the judgment of the Apex Court in the case of State (NCT of Delhi) Versus Shiv Kumar Yadav and Anr., 2016 2 SCC 402 for the proposition of law that under Section 311 of the Code of Criminal Procedure recalling of the witness can only be allowed, if there are tangible reasons to show how fairness of trial suffered without recall.