TMI Blog2003 (2) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... aginbhai Patel, P.W.5 - Ishwar Lakhma Vangad, P.W.7 - Kakad Radka Kurkutia and P.W.8 - Ladak Jania Mishal and examined them again. These witnesses are previously examined and they had turned hostile. It is this order which is impugned in the present Writ Petitioners. 3. Brief facts would be necessary for considering the controversy involved. The petitioners in these two Petitioners are the accused in Sessions Case No. 29 of 1997 which is pending before the Sessions Judge, Dadra Nagar Haveli, Silvassa. Lok Sabha elections were scheduled to be held on 2nd May, 1996 in the Union Territory of Dadra Nagar Haveli. Two political parties Congress (I) and the B.J.P. were the rival parties contesting the said election. According to the allegation of the prosecution, on 29th April, 1996, some of the workers of the Congress (I) Party were proceedings towards the Village Khanvel by jeep. They were allegedly attacked by the workers of the B.J.P. who were coming from the opposite side also in a jeep. In the said incident, one person died on the spot and several others were injured including the aforesaid witnesses who were sought to be re-examined by the prosecution. After investigation, charge-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prosecution case as they all were threatened by the accused persons. The Application also revealed that P.W.10 - Navas Faraliya by his Application dated 12th June, 2000 made to this Court, sought police protection as he was threatened by the accused persons. It is thereafter that P.W.10 was provided police protection and as a result thereof P.W.10 Navas Faraliya did not turn hostile and supported the prosecution when examined. It was alleged that from the affidavits and the complaint by P.W.8 received by the prosecution it was clear that the aforesaid four witnesses did not support the prosecution as they were under threats from the accused persons and that those four witnesses are now coming forward to tell the truth before the Court. It was, therefore, prayed in the said Application, in exercise of the powers conferred on the Court under Section 311 of Cr.P.C. the aforesaid four witnesses be recalled and re-examined as prosecution witnesses. It was alleged that it was necessary in the ends of justice that the prosecution was not trying to fill up lacuna in the prosecution case. 7. The said Application was opposed by the petitioners mainly on the grounds of the application being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissed as withdrawn, the Writ Petitions invoking the powers under Section 482 of Cr.P.C. are not maintainable. In support of his submission, he relied upon the decision of the Apex Court in the case of Rajinder Prasad v. Bashir and Ors. reported in 2002CriLJ90 . 12. What the Apex Court made observations in Madhu Limaye's case, in short is that inherent powers under Section 482 of Cr.P.C. could be invoked for quashing interlocutory order even though the revision is prohibited under Section 397(2) of the Code. The relevant observations of the Apex Court are as under:- .....In our opinion, a happy solution of this problem would be to say that the bar provided in Sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Madhu Limaye's case, the very jurisdiction of the Court to proceed with the trial was challenged. In the present case, however, there is no challenge to the jurisdiction, but there is challenge to the exercise of discretion by the Court under Section 311 of Cr.P.C. In Rajinder Prasad's case, earlier a revision-petitioner was filed which subsequently was dismissed as not pressed. Similar is the position in the instant case before us where the impugned order of the learned Sessions Judge was challenged in Criminal Revision Applications and those Criminal Revision Applications came to be dismissed as they were withdrawn. The Apex court in Rajinder Prasad's case held that in such an eventuality, the power under Section 482 of Cr.P.C. cannot be invoked and the writ petition was not maintainable. This being the position, the present Writ Petitioners also would not be entertainable. 16. However, in Rajinder Prasad's case the Apex Court also held that the powers under Section 482 Cr.P.C. were very wide and they should be exercised sparingly and cautiously ...Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... just decision of the case. Thus, the Sessions Court has powers to recall and re-examine witness already examined at any stage of the proceedings. In the first part, it is the discretion of the court. But in second part when it appears to the Court that the evidence of particular person is essential to the just decision of the case, then the Court shall have to summon or re-call and re-examine such person. Therefore, the order of the Sessions Court in recalling and re-examining the aforesaid four witnesses was within his discretion. 19. The submission made on behalf of the petitioners however is that the exercise of this discretion by the learned Sessions Judge was not only pre-judicial to the petitioners - accused persons, but was also helped the prosecution to fill up the lacuna in the prosecution case. It would, therefore, be necessary to understand what is meant by lacuna in the prosecution case. The Apex Court had occasion to explain the meaning of the lacuna. In the case of Rajendra Prasad v. Narcotic Cell, reported in 1999CriLJ3529 . The relevant observations of the Apex Court are as under :- Lacuna in the prosecution must be understood as the inherent weakness or a latent we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made by the prosecution for recalling and re-examining the aforesaid four witnesses is not bonafide, but it is malafide. It is submitted that this is so because there are no details as to when these prosecution witnesses were threatened, whether they had complained to the police about such threats, and when they felt re-assured and felt free from threats so that they can now depose truth before the Court. It is also submitted that the aforesaid witnesses have come forward belatedly and, therefore, it smacks of malafides. It is submitted that this application for recalling of witnesses will have to be considered in the background of the political rivalry between the accused on the one side and the complainant and the witnesses on the other side. 22. On the other hand, it is submitted by the learned Counsel for the Respondents that it was brought to the notice of the Court by one of the prosecution witnesses that the witnesses were being threatened by the accused persons and, therefore, they were not telling truth before the Court. It was further submitted on behalf of the Respondents that mere delay cannot be termed as application being malafide. 23. In this regard, what is import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners - accused persons as they will have full opportunity to cross-examine the witnesses. 25. It was also submitted on behalf of the petitioners that they have already disclosed their defence and prejudice would be caused if the witnesses are recalled and re-examined. However, on behalf of the Respondents, it is submitted that although it is true that the accused have disclosed their defence but that defence is only of total denial. There has been no specific defence so that prejudice would be caused to the accused persons if the witnesses are recalled and re-examined. 26. It was further submitted on behalf of the petitioners that in the Criminal Application No. 3160 of 2001 filed by the original complainant, there was a prayer for recalling and re-examining the witness Jayeshkumar Patel (P.W.2). However, that application was opposed by the prosecution and, therefore, now it will not be open for the prosecution to recall the same witness and in addition three more witnesses. However, this submission also does not have merit. The opposition was, as submitted on behalf of the Respondents, mainly to the prayer for transfer of the case from the Court of Sessions, Dadra Nagar Haveli t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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