Gujarat High Court
Ramanbhai Bholidas Patel vs State Of Gujarat on 22 July, 2025
NEUTRAL CITATION
R/SCR.A/9553/2025 JUDGMENT DATED: 22/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 9553 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
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Approved for Reporting Yes No
√
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RAMANBHAI BHOLIDAS PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR IH SYED, SR. ADVOCATE with MR MOHIT A GUPTA(8967) for the Applicant(s) No. 1
MR HARDIK DAVE, PUBLIC PROSECUTOR with MS SHRUTI PATHAK for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 22/07/2025
ORAL JUDGMENT
RULE. Learned APP waives service of notice of Rule for and on
behalf of the respondent – State of Gujarat.
[1.0] Present Special Criminal Petition is filed under Article 226 and
227 of the Constitution of India read with Section 528 of the
Bharatiya Nyaya Sanhita, 2023 (For short “BNSS”) by the
petitioner seeking to quash and set aside the order dated
07.07.2025 passed below Exh.73 by the learned Judicial
Magistrate First Class, at Sanand, Ahmedabad in Criminal Case
No.706 of 2024, whereby the learned Magistrate has been
pleased to allow application Exh.73 filed under Section 348 of
the BNSS (section 311 of the CrPC) by the prosecution to
examine additional two witnesses.
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[2.0] Heard learned Senior Advocate Mr. I.H. Syed assisted by learned
advocate Mr. Mohit Gupta appearing for the petitioner and
learned Public Prosecutor Mr. Hardik Dave assisted by learned
APP Ms. Shruti Pathak appearing for the respondent – State of
Gujarat.
[3.0] Learned Senior Advocate has submitted that the present
petitioner is an under-trial prisoner and investigation is
concluded and charge-sheet is filed on 13.03.2024. Prosecution
has cited 16 witnesses in the charge-sheet out of which 13
witnesses are private persons and 3 are Investigating Officers.
He has submitted that though a statement has been made by
the State before the highest Court of the country that
prosecution will be examining only 16 witnesses cited in the
charge-sheet, but now the prosecution filed application Exh.73
seeking to allow the prosecution to examine additional 5
witnesses and thus, the prosecution is not following the due
procedure of law and as and when it wants, is producing the
documents. Section 207 of the CrPC is not properly complied
with by the prosecution. Though the defence has given an
application Exh.5 praying to provide list of relied and unrelied
documents from the prosecution, in piece meal manner, during
the course of trial, as and when prosecution wants, they are
tendering the documents which causes serious prejudice to the
defence of the accused. Nonetheless, the alleged witnesses are
irrelevant and there is no need to examine them. Even
otherwise, said witnesses are also not cited as witnesses in the
charge-sheet. Even, prosecution has failed to examine 5
witnesses under Section 311 of the CrPC (section 348 of the
BNSS) though Court has been pleased to pass an order to
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examine only 2 witnesses and defence has given the consent for
the same. Further, he has submitted that the impugned order is
not maintainable in the eyes of law as the learned Magistrate
did not consider the fact that the prosecution is trying to fill up
the lacunae in their case during the trial by introducing new
witnesses, which would adversely affect the right of defence of
the accused as they are not cited as witnesses in the chargsheet
and statements are also not recorded during the investigation.
Further, the trial is at the verge of completion and accused has
already disclosed his defence and hence, at belated stage, such
permission is against the law. The learned Magistrate has
misread the dictum of Hon’ble Supreme Court in the case of
Rajaram Prasad Yadav vs. State of Bihar and Another
reported in (2013) 14 SCC 461 which never allow the
prosecution to fill up the gap and lacunae as after examination
of the witnesses, proper course is to re-examine the witness
under Section 138 of the Evidence Act and rather than to re-
examine the witness, proseuction wants to fill up the lacunae
and examine the witness without re-examination of said
witness. Though without any justification learned Magistrate on
its own jumpned to the conclusion that it is necessary to
examine such witnesses for just decision of the case and
presumed culpability of accused. Already 13 witnesses have
been examined and now 3 witnesses are required to be
examined. The defence is ready to expedite the trial also and
even as per the statement made by prosecution before the
Hon’ble Supreme Court in the proceedings of Special Leave to
Appeal (Cri.) No.761/2025, prosecution was to examine
maximum 16 witnesses.
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[3.3] Herein, no question of forgery of any document or legality of
any document is in question though beyond the scope of
allegation, learned Magistrate has passed the impugned order.
Further, the defence is entitled to receive complete set of all
relevant or irrelevant documents prior to commencement of
trial though no documents have been provided by the
prosecution. Hence, he has requested to allow the present
petition as allowing the prosecution to examine additional
witnesses would cause serious prejudice to the defence.
[4.0] In oppugnance, learned Public Prosecutor has submitted that
the prosecution has examined 13 witnesses and 2 witnesses are
alrady dropped. Hence, in any manner, number of witnesses to
be examined, has not cross the number of 16 and prosecution is
not intended to prolong the matter. Even, time line fixed by the
Hon’ble Supreme Court is not over. Further, the chief
examination of said two witnesses is already recorded and now
is kept pending for cross-examination as it was deferred.
Learned Magistrate has passed proper order and it is the duty of
the prosecution to lead sufficient evidence to prove the case of
prosecution against the accused. Herein, prosecution is not
attempting to fill up the lacunae. So far as non-compliance of
section 207 of the CrPC is concerned, at relevant point of time,
no any such objection is raised by the defence and at belated
stage also impermissible. Herein, challenge in the present
petition is limited qua applicability of section 311 of the CrPC
(section 348 of the BNSS) and as per section 242 of the CrPC,
Court shall have to accept whatever evidence is produced by the
prosecution in support of its case.
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[4.1] Further, the proposed witnesses are material witnesses and
there is no prejudice caused to the accused as ample
oppertunity to cross examine said witnesses is very much
available to defence. Further, during investigation of the case
and during investigation their statements were not recorded
which does not mean that the prosecution has no right to
examine additional witnesses. It is the discretionary power of
the Court and the Court has exercised it properly. Hence, he has
requested to dismiss the present petition.
[5.0] Heard learned Senior Advocate for the petitioner and learned
Public Prosecutor for the respondent – State. Perusing the
record, it appears that the allegation against the accused by the
prosecution is that the petitioner – accused and other accused
persons (absconding & deceased) in criminal conspiracy with
each other forged an order of Mamlatdar dated 13.01.1994 in
respect of the land of the complainant and thereafter executed
a registered sale deed for the said parcels of the land in favor of
their relatives and beneficiaries through 52 companies without
paying any consideration to the complainant family. In this
regard, the FIR being CR No.11192050230731 of 2023 came to
be registered with Sanand Police Station, Ahmedabad for the
offence punishable under Sections 406, 420, 465, 467, 468, 471
and 120(B) of the Indian Penal Code, 1860 (for short “IPC“)
which has culminated in Criminal Case No.706 and 2024.
[5.1] The learned Magistrate, Sanand has taken cognizance of the
offence and has started recording of evidence. The prosecution
has filed an application Exh.73 under Section 348 of BNSS
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(Section 311 of the CrPC) to issue summons to additional
witnesses namely (1) Mrs. Manjulaben Kanubhai Jivabhai, the
wife and legal heir of the deceased complainant; (2) Advocate
Shri Mukeshbhai Patel, who had carried out work related to title
clearance in respect of land bearing Survey No.738 and 743 of
village Chekhla; (3) Bank Manager, Bank of Maharashtra, Ashram
Road Branch, Ahmedabad; (4) Investigating Officer who
obtained certified copies of relevant records from the Registrar
of Companies, the Hon’ble High Court and other government
authorities, which were placed before the learned Magistrate
and (5) concerned Officer of Registrar of Companies from whom
the Cds and other documentary evidence were obtained.
Learned Magistrate has been pleased to partly allowed the said
application vide the impugned order and issued summons to the
witnesses namely (1) Shri Mukeshbhai Patel and (2) Bank
Manager of Bank of Maharashtra, Ashram Road Branch,
Ahmedabad for examination as witnesses for the prosecution.
The said additional witnesses appeared before the learned trial
Court and their chief examination was recorded but cross
examination of said witnesses deferred at the request of
accused.
[5.2] Pursuant to the order dated 11.07.2025 passed by this Court,
the petitioner/accused opposed the application Exh.73 before
the learned trial Court on the ground that the prosecution is
trying to fill up the lacunae in their case and therefore, it would
cause prejudice to the accused. The object underlying in section
348 of the BNSS (section 311 of the CrPC) is that there may not
be failure of justice on account of mistake of either party in
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bringing the valuable evidence on record or leaving ambiguity in
the statements of the witnesses. Section 348 of the BNSS
(section 311 of the CrPC) relates to power of the Court to
summon any person as a witness, or examine any person in
attendance, though not summoned as a witness, or recall and
re-examine any person already examined “if his evidence
appears to it to be essential to the just decision of the case.”
Section 311 of the CrPC (section 348 of the BNSS) reads as
under:
“311 CrPC (S.348 BNSS). Power to summon
material witness, or examine person present.
– Any Court may, at any stage of any inquiry, trial or other
proceeding under this Code, summon any person in
attendance, though not summoned as a witness, or recall
and re-examine any person already examined; and the
Court shall summon and examine or recall and re-examine
any such person if his evidence appears to it to be
essential to the just decision of the case.”
This power was conferred on the Court in the general
provisions as to inquiries and trials in Chapter XXIV of the CrPC
whereas Sections 231 CrPC (S.254 BNSS), 242 CrPC (S.265 BNSS),
244 CrPC (S.267 BNSS) and 254 (S.277 BNSS) of the CrPC relate
to the procedure of taking evidence during the trial, conducted
by a Court of Session and by the Magistrate. The Magistrate
does not convict the accused he/she shall proceed to hear the
prosecution and take all such evidence as may be produced in
support of the prosecution and to hear the accused and take all
such evidence as he produces in his defence. So, it speaks that
all such evidence as may be produced in support of the
prosecution be received during the trial. It is an established
principle in Law of Evidence that evidence includes both oral
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and documentary. Therefore, in my considered opinion, as long
as the trial in sessions cases, warrant cases or summons cases is
at the stage of evidence for prosecution, as laid down in the
above sections, the Sessions Judge or Magistrate can take all
such evidence as may be produced in support of the
prosecution.
[5.3] In the case of Rajaram Prasad Yadav (Supra), in paragraph 16,
the Hon’ble Supreme Court has referred to the decision in the
case of Natasha Singh vs. CBI reported in (2013)5 SCC 741,
wherein it was held by the Hon’ble Supreme Court that the
object of this Section is to do justice not only from the point of
view of the accused and the prosecution but also from the point
of view of an orderly society. The Court examines evidence only
after laid before the Court. The important aspect to be seen is
whether the Court thinks it necessary in the facts and
circumstances of a particular case before it. In Section 311 of
CrPC (S.348 BNSS), the significant expression is “at any stage of
inquiry or trial or other proceedings under this Code” whereas the
section confers a very wide power on the Court on summoning
witnesses, the Court can pass an order for examination or re-
examination of witnesses. Thus, there is no restriction on the
power of Court. Section 311 of CrPC (S.348 BNSS) cannot be
curtailed at any stage.
[6.0] The petitioner / defence had opposed the examination of
aforesaid 2 witnesses by submitting that, witness namely Shri
Mukeshbhai Patel had issued the title clearance certificate in the
year 1999 and facts are already known to the prosecution prior
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to commencement of trial. In order to clarify the ambiguity qua
issuance of title clearance certificate, even if for the sake of
argument it is accepted that said witness is an advocate then in
that event, such professional communications are protected but
section 126 of the Indian Evidence Act further provides that any
such communication made in furtherance of any legal purpose is
not protected from disclosure and said matter relates to witness
and also proposed evidence is subject to challenge in cross-
examination and defence has right to raise an objection qua
admissibility and relevancy of such evidence and said fact
depends on the proposed witness. Herein, the prosecution
wants to lead an evidence and the Court has found it necessary
for the limited purpose of eliciting facts.
[6.1] As against the said finding of the learned trial Court, the main
grievance of the petitioner is that forgery of sale deed is not in
question but prosecution has mainly submitted that charge
framed against the petitioner is for the forgery of letter issued
by Mamlatdar dated 13.01.1994 and based on the said forgery,
without paying any consideration, subsequently sael deed came
to be executed and hence, the fact in issue is forgery of letter
issued by the Mamlatdar office but consequence of said letter is
execution of sale deed without paying any consideration to the
father of the complainant and said allegation is fact in issue
which clearly reveals from the charge framed by the learned
Magistrate at Exh.16.
[6.2] So far as another witness i.e. Bank Manager, Bank of
Maharashtra, Ashram Road Branch, Ahmedabad is concerned, as
discussed earlier, the alleged sale deed is executed in the year
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1996 and allegation is that without paying consideration, said
document came to be executed. Hence, the prosecution wants
to bring on record the banking documents to show sham
financial transaction, which is purportedly linked to the
execution of the sale deed, which are already produced on
record and prosecution has relied on Exhs.33 and 69.
Considering the aforesaid fact, learned trial Court thought it just
and proper to examine the said witnesses. Merely because the
statements of said two witnesses were not recorded during the
investigation is not a ground to refuse the application. Even
otherwise, it is the contention of the prosecution that the
Investigating Officer during the course of investigation of the
case had collected the material and they are material witnesses
and their evidence would assist the Court to arrive at a just and
proper conclusion.
[7.0] Though, such evidence either oral or documentary was not
mentioned in the list of witness/documents filed with the police
report (charge-sheet) under Section 173 CrPC (S.193 BNSS),
copies of the statements or documents be furnished to the
accused, to enable him to avail the right of cross-examination.
Merely because police has not cited any witness or document is
not annexed with final report, it does not prevent the
prosecution or Magistrate/Court from examining any other
witnesses or receiving documents if they help the Court to
arrive at a just decision in the case. In this regard, it would be
apposite to refer to the decision of the Hon’ble Supreme Court
in the case of K.P. Tamilmaran vs. Dy. Superintendent of Police
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reported in 2025 INSC 576 :: AIR 2025 (SC) 2545 wherein the
Hon’ble Apex Court has been pleased to observe as under:
“48. As is clear from the language of the provision itself, there is a
wide discretion with the Courts under Section 311 CrPC. These
powers can be exercised suo moto or on an application moved by
either side. After all, the object is that the Court must not be
deprived of the benefit of any valuable evidence. It is absolutely
necessary that the Court must be apprised of the best evidence
available. Thus, Courts have been given wide powers to decide on
their own if a witness is required to be called or recalled for
examination or re-examination. This power under Section 311 CrPC
can be invoked at any stage of the trial, even after the closing of
the evidence. Section 311 CrPC can also be read along with Section
165 of the Evidence Act, as the powers of the Court under Section
165 of the Evidence Act are complementary to Section 311 of CrPC.
As discussed above, powers under Section 311 CrPC can either be
exercised on an application moved by either side to the case or suo
moto by the Court. In case a person is not listed as a witness in
the charge-sheet but later, the prosecution desires to bring that
person as an additional prosecution witness, then the
prosecution can move an application to bring this person as a
prosecution witness. It is then for the Court to decide whether
such a person is required as a witness or not. If the Court finds that
such a person should have been examined as a prosecution witness
and he/she was omitted from the list of witnesses due to some
oversight, mistake or for any other reason, the Court may allow the
application and such a person can be examined as a prosecution
witness. Thereafter, the normal course of examination-in-chief,
crossexamination, etc. would follow as per the procedure. On the
other hand, when the Court calls a person as a Court witness, there
48 are some restrictions regarding the cross-examination of such
witness.”
Thus, non-citing a witness in the charge-sheet does not
disable the prosecution or the Court from examining any other
witness if it is found desirable or necessary for the purposes of
the evidenciary value of said additional evidence be decided
later. Hence, the contention of the petitioner – accused that the
proposed evidence produced by the prosecution which is not
mentioned in the list of witnesses and documents filed by the
prosecution along with the police report (charge-sheet) would
cause prejudice to him if allowed, is not tenable in law.
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[8.0] It is a cardinal rule in the law of evidence that the best available
evidence should be brought before the Court to prove a fact or
the points in issue. The exercise of power under section 311
CrPC (S.348 of the BNSS) is only with the object of finding out
the truth or obtaining proper proof for such facts, which will
lead to a just and correct decision of the case. The exercise of
the said power cannot be dubbed as filling in a lacuna in a
prosecution case unless the facts and circumstances of the case
make it apparent that the exercise of power by the Court would
result in causing serious prejudice to the accused, resulting in
miscarriage of justice. Herein, petitoner-accused failed to show
or point out alleged prejudice due to examination of such
additional two witnesses. The wide discretionary power is
exercised judiciously and not arbitrarily. The learned trial Court
satisfied itself that it is essential to examine such witnesses in
order to arrive at a just decision of the case.
[8.1] The object of section 311 CrPC (S.348 BNSS), simultaneously
imposes a duty on the Court to determine the truth and to
render a just decision. Hence, once the Court arrives at the
conclusion that additional evidence is necessary then the Court
should bear in mind that no party in a trial can be foreclosed
from correcting errors and that if proper evidence was not
adduced or a relevant material was not brought on record due
to any inadvertence, the Court should be magnanimous in
permitting such mistakes to be rectified with caution and such
additional evidence must not be received as a disguise or to
change the nature of the case against any of the party. The
power must be exercised keeping in mind that the evidence that
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is likely to be tendered, would be germane to the issue involved
and also ensure that an opportunity of rebuttal is given to the
other party. The power under section 311 CrPC (S.348 BNSS)
must therefore, be invoked by the Court only in order to meet
the ends of justice for strong and valid reasons and the same
must be exercised with care, caution and circumspection. The
Court should bear in mind that fair trial entails the interest of
the accused, the victim and the society.
[9.0] Lastly, argument canvassed by learned Senior Advocate for the
petitioner as regards filling of lacunae is concerned, rather to
answer in verbose it would be in profit to refer to the case of P.
Chhaganlal Daga vs. M.Sanjay Shaw reported in (2003)11 SCC
486 wherein, the case was under section 138 of Negotiable
Instruments Act, 1881 (for short “NI Act“) wherein, the
complainant completed the evidence including his own
examination, cross-examination and re-examination. During
such cross-examination the accused contested the question of
service of notice envisaged under Section 138 of the NI Act. The
acknowledgment receipt produced by the complainant
contained a signature which the accused disowned as his. After
the arguments were concluded and the case was posted for
judgment, at that time the complainant moved the trial Court
for reception of additional material by producing a postal
receipt in exercise of the powers under section 311 of CrPC
(S.348 BNSS). The trial Court felt that the said material was
necessary for the just decision of the case and hence allowed
the same to come on record. The said order was challenged by
the accused before the High Court wherein it was held by the
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High Court that production of such postal receipt at the belated
stage was only to fill up the lacunae and hence the same is
impermissible in law. The Hon’ble Apex Court after discussing
about what is meant by lacunae in prosecution case, powers under
section 311 of the CrPC (S.348 BNSS) and section 165 of Evidence
Act and by taking into consideration few earlier
pronouncements upheld the order of trial Court as the same
would not cause any prejudice to the rights of the accused and
the accused can cross examine the complainant on the basis of
the new material adduced on record. Hence, an application
under section 311 of CrPC (S.348 BNSS) can be permitted even
at the stage of Judgment. Hence, in light of aforesaid
authorative pronouncement, argument canvassed by learned
Senior Advocate for the petitioner is not acceptable.
[10.0] It is pertinent to note that, canons of criminal jurisprudence on
which our criminal justice system functions, every criminal trial is
a voyage of discovery in which truth is the quest. Conviction or
acquittal is not the sole prerogative of the criminal trial. Truth is
the main object. The quest of truth is the mandate of law and
indeed the bounden duty of the Courts. The criminal justice
system will sustain only when the people will be convinced that
justice is based on the foundation of the truth. Therefore, the
Court is responsible for making sure that trials are conducted
fairly and that justice is served. Judges preside over criminal
trials and make sure that the accused are given their due rights.
Fair trial is not a favour afforded to the accused. It is a legally
enforceable right guaranteed by the State to its citizens for
whom the State itself exists.
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[11.0] Ergo, this Court is of the opinion that there are no grounds to
interfere with the impugned order rendered by the learned Trial
Court as the impugned order is just and legal and no case is
made out to interfere the same under Section 528 of the BNSS
or under Articles 226 and 227 of the Constitution of India.
Hence, present petition being devoid of any merit stands
dismissed. Rule is hereby discharged.
[12.0] Learned trial Court is directed to fix a date for the cross-
examination of the additional two witnesses and on appointed
date if the petitioner fails to cross-examine the witnesses, trial
Court shall proceed further since the records indicate that
Criminal Case No.706 of 2024 is a Supreme Court Direction
matter and therefore, learned trial Court is directed to take up
the matter on day to day basis and dispose of the trial as per the
time line given by the Hon’ble Supreme Court.
[12.1] Further, the learned trial Court is directed to appreciate
whatever evidence is produced / adduced on the record, without
being influenced by any of the observations made by the
learned Magistrate in the impugned order passed below Exh.73
as well as in the present judgment made by this Court,
independently on its own merits, by considering the objections
raised by the defence including relevancy and admissibility of
the same.
[12.2] It is needless to say that the observations made in the impugned
order passed by the learned Magistrate, Sanand and present
judgment are tentative in nature. All defences and contentions
to be raised at the time of arguments are kept open.
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[13.0] At this stage, learned Senior Advocate for the petitioner requests
to stay the present judgment so as to enable the petitioner –
accused to assail the present judgment and order before the
Hon’ble Supreme Court. The said request is opposed by the
learned Public Prosecutor as it would delay the trial of Criminal
Case No.706 of 2024.
Having heard learned Counsel for respective parties and in
view of observations made hereinabove and considering the fact
that Hon’ble Supreme Court has given time line to conclude the
trial within four months in Special Leave to Appeal (Cri.)
No.761/2025 which is going to expire on 21.08.2025, no case is
made out to stay the present judgment. Hence, the request is not
acceded to and stands rejected.
(HASMUKH D. SUTHAR, J.)
Ajay
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