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CR.MA/10456/2008	 3/ 3	ORDER 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CRIMINAL
MISC.APPLICATION No. 10456 of 2008
 

 
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GUJARAT
POLLUTION CONTROL BOARD - Applicant(s)
 

Versus
 

STATE
OF GUJARAT & 2 - Respondent(s)
 

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Appearance : 
MR
RITURAJ M MEENA for Applicant(s) : 1, 
MS
MANISHA L SHAH APP for Respondent(s) : 1, 
RULE SERVED BY DS for
Respondent(s) : 2 -
3. 
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CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE ANANT S. DAVE
		
	

 

 
 


 

Date
: 20/03/2009 

 

 
 
ORAL
ORDER

Though served, no one appears for respondents nos.2 and 3.

The challenge in this application filed by the applicant-Gujarat Pollution Control Board (for short the Board ) is the order dated 29.08.2007 passed by the learned Judicial Magistrate, First Class, Jetpur below Exh.65 in Criminal case No.615 of 1993 by which application of the respondents Nos.2 and 3 for recalling witnesses came to be allowed at a very belated stage without recording any satisfaction.

Learned counsel for the applicant submits that even as per the application submitted by the accused-applicant, the grounds for recalling witnesses was only the change of advocate and on earlier occasion when cross-examination took place, certain relevant questions of law and facts were not raised. According to learned counsel for th applicant, same is not germane to exercise of powers under Section 311 of the Code of Criminal Procedure and no doubt a witness can be recalled at any stage if the court is satisfied that the same was not essential or needed for just decision in the case. But in the present case, no sufficient ground or satisfaction was recorded by the learned Magistrate to recall the witnesses as prayed for by the respondents No.2 and 3 and particularly an opportunity was already given to cross-examine and final arguments were already submitted by the parties.

Having heard learned counsel for the applicant and considering the facts and circumstances of the case and order passed by learned Magistrate, what transpires is that no satisfaction is recorded by the learned Magistrate for exercising powers under Section 311 of the Code inasmuch as though objection was raised by the applicant herein by filing objection at Exh.66 and in view of the reliance placed on the decision of the High Court of Orissa in the case of Thomas Kujur v. Republic of India reported in 2007(2) Crimes 188 Orissa, above aspect is not considered at all. It was specifically submitted that so far as two witnesses viz. Jayesh Devkaran Kalyan and Janardan Balakrishna Dave are concerned, they were cross-examined vide Exhs.51 and 52 as early as in July and September, 2005. Not only that but further statement of the accused was also recorded on 01.10.2005.

In view of the above, it cannot be said that there was a satisfaction on the part of the learned Magistrate to exercise power under Section 311 of the Code. The order impugned is de void of any merit much less any justification and deserves to be quashed and set aside. Accordingly, this application is allowed and order dated 29.08.2007 passed by the learned J.M.F.C., Jetpur below Exh.65 in Criminal Case No.615/93 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent only.

Before parting, this Court has passed order on 28.01.2009 encompassing negligence of the applicant-Board and its officers to pursue criminal cases filed under the provisions of Gujarat Water (Prevention & Control of Pollution) Act, 1974. In view of the detailed affidavit filed by the concerned advocate, I deem it just and proper not to take any action against officers of the Board, at this stage.

(ANANT S. DAVE, J.) *pvv     Top