MER VEJA ATIYA MODHWADIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS application under Section 482 of the Code of Criminal Procedure, 1973 (the Code) is directed against the order dated 27th February 2009 passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court, Porbandar below Exhibit 48 in Sessions Cases No. 29 of 2007 and 12 of 2008, whereby the application made by the petitioner to recall the prosecution witness No. 1, has been rejected.

(2.) THE facts stated briefly are that one Jivabhai Maldebhai Modhvadiya lodged a first information report on December 14, 2006, which came to be registered vide Bagvadar Police Station I - C.R. No. 106/2006 for the offences punishable under Sections 143, 147, 148, 149, 302, 504 read with Section 34 of the Indian Penal Code and Section 135 of the Bombay Police Act, 1951. Upon submission of the chargesheet, the case was committed to the Sessions Court and came to be registered as Sessions Case No. 29 of 2007. However, in connection with an absconding accused who was arrested later in point of time, a supplementary challan came to be filed and upon committal, the same was registered as Sessions Case No. 12 of 2008. It appears that both the cases have been directed to be tried together and accordingly, both the cases are being tried together and common evidence is being recorded in both the Sessions Cases.

(3.) THE prosecution examined the first informant as prosecution witness No. 1 at exhibit 39. After the examination -in -chief was completed, the learned advocate for the petitioner -accused No. 1 cross -examined the said witness and the said cross -examination was completed on 2nd January 2009. On behalf of the accused No. 4, the learned advocate appearing on his behalf, cross -examined the said witness and after having completed the cross -examination, the said witness was further cross -examined by the learned advocate appearing on behalf of the accused No. 2 and 5 which was completed on 20th January, 2009, and thereafter, by the learned advocate for the accused No. 3, and the said cross -examination came to be completed on 22nd January 2009. It is the case of the petitioner, that when the learned advocate for the petitioner received a copy of the deposition of the said prosecution witness No. 1, the learned advocate found that the said witness had been cross -examined by the learned advocates for the other co -accused in such a manner so as to create serious prejudice to the case of the present petitioner. Therefore, the learned advocate for the petitioner submitted an application Exhibit 48 for recalling the said witness on 5th February, 2009. The learned Special Public Prosecutor submitted objections against recalling the said witness, mainly on the ground that the petitioner wanted to delay the proceedings and sufficient opportunity had already been given to the petitioner to cross -examine the said witness. The learned Additional Sessions Judge vide the impugned order dated 27th February 2009, dismissed the application. Being aggrieved, the petitioner has moved the present application under Section 482 of the Code.