STATE OF GUJARAT Vs. KAMLESH BAROT

JUDGEMENT

(1.) Heard learned PP Mr. Desai for the petitioner State and Mr. TS Nanavati for Respondent no.2. Respondent nos. 4, 5, 6, 7 and 8 appeared in person and they are heard in person. Respondent nos. 9 and 10 have opted to remain absent though served.

(2.) This Cri.Rev. Application is filed by the complainant State of Gujarat against the order passed by the learned Addl. Sessions Judge, Bharuch dated 22.9.1999 below application exh. 262 in Sessions Case No. 99/98 pending before him, rejecting the application exh. 262 filed by the learned APP, Bharuch preferred under sec. 311 of the Cr.P.Code . The State had prayed that three witnesses namely Bhupendra Prabhulal Shah (father of the victim boy Manish), victim boy Manish and witness Mahendra Prabhulal Shah be recalled for a limited purpose so as to identify the voice recorded in audio tape cassettes by police. Application exh.262 filed by the APP before the learned Sessions Judge is self-explanatory. It is the say of the State that these witnesses are competent to identify the voice recorded in the audio cassettes produced and proved by the witnesses who are examined in the Court. I am told that audio cassettes were kept with the Court as muddamal and three important witnesses are examined by the prosecution about the proof of it. Out of three, two important witnesses are Wireless Operator and FSL Expert. Deposition of P.W. Bhupendra Shah is recorded at exh.99 and the depositions of P.Ws. Mahendra Shah and Manish Shah are recorded at exh.130 and 136 respectively. Recorder of audio tape is examined subsequently. Expert is also examined subsequently. Learned PP Mr. P.G. Desai has submitted that because of bulky record and large number of witnesses, the prosecution has examined witnesses expeditiously in view of the order passed by the Court expediting the trial. The learned Addl. Sessions Judge, while passing the order, mainly relied on the endorsement made by the learned advocate appearing for the accused persons and submissions made on their behalf and held that the prosecution intends to prolong the trial and also wish to fill up the lacuna left by it. The another reason for rejecting application given by the learned Addl. Sessions Judge is that the prosecution should not be permitted to fill up the lacuna because the same will be prejudicial to the defence side.

(3.) According to the case of the prosecution, P.W. Manish Shah (exh.136) was kidnapped so that ransom amount can be extorted from his father and/or family members. Accused are facing charges of criminal conspiracy along with other charges. Audio cassettes are produced to prove the conversation between the accused and some of the prosecution witnesses who are examined by the prosecution side. I agree that cassettes were very well there before the Court as muddamal articles, but in reality, cassettes before the Court were documents. Recorder, if examined first and prosecution intends to get the voice identified after proving the formal recording of it, then, it cannot legally be said that the prosecution intends to fill up the lacuna. Even for the sake of arguments, it is accepted that prosecutor was at liberty to play audio cassettes when above three witnesses were examined and prosecutor could have put certain questions as to the identification of the voices recorded in the cassettes and that prosecutor has missed that opportunity, even then, application to recall these witnesses under sec. 311 of Cr.P.Code, cannot be said to be an application moved with a view to protract the trial. The case of proving written document is slightly on different footing than the case where voice is to be identified recorded in audio cassettes. Such tapes are undisputedly documents. After examining the Recorder, grant of permission to recall certain witnesses for identification of voice cannot be equated with the act of filling up the lacuna. Bonafide missed questions are also, in the interest of justice, as stipulated in sec. 311 of Cr.P.Code, can be permitted to be asked to such witnesses. Careful reading of sec. 311 of Cr.P.Code reveals that while recalling the witness, the Court should evaluate the entire set of facts vis-a-vis the "interest of justice" and Court should see that such permission may not cause prejudice to the other side. At the same time, rejection of such an application, whether would cause prejudice to the prosecution is also a question which needs consideration.