SANJAYBHAI DHANJIBHAI SOLANKI vs STATE OF GUJARAT

R/SCR.A/7984/2026 JUDGMENT DATED: 03/11/2026
(GJHC240406602026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7984 of 2026
FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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SANJAYBHAI DHANJIBHAI SOLANKI
Versus
STATE OF GUJARAT
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Appearance:
MR. MAULIK M SONI(7249) for the Applicant(s) No. 1
MR. VIPUL SAVDAS REVDARIYA(14299) for the Respondent(s) No. 1
MS. JIRGA JHAVERI, APP,for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE MOOL CHAND TYAGI

Date : 03/11/2026
JUDGMENT
1. Draft amendment stands allowed. To be carried out
forthwith.
2. Issue rule returnable forthwith. Learned Additional Public
Prosecutor accepts and waives service of rule on behalf of
respondent No.1-State. Learned counsel Mr. Vipul Revdariya
accepts and waives service of rule o behalf of respondent No.2.
3. The captioned petition is filed by the petitioner challenging
th
the order dated 14.05.2026 passed by learned 5 Additional
Sessions Judge (Special POCSO Court) at Junagadh below Exh.31
seeking following as enumerated in para-9 of the petition as
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under:-
“7(a) YOUR LORDSHIPS BE PLEASED to issue appropriate
writ, order or direction and be pleased to quash and set aside
th
the order dated 14.05.2026 passed by the Ld. 5 Additional
Sessions Judge (Sp.Pocso Court) at Junagadh below Exh.31
and further be pleased to pass appropriate writ, order and
direction and be pleased to permit the petitioner to further
cross examination of victim.
(b ) YOUR LORDSHIPS BE PLEASED to stay pass appropriate
order to stay further proceedings of Special Pocso Case No.20
th
of 2025 pending before the Ld. 5 Additional Sessions Judge,
(Sp. Pocso Court) at Junagadh, till final disposal of this
petition. ”
4. Heard learned counsels for the parties.
5. Learned counsel appearing on behalf of the petitioner
submitted that POCSO Case No. 20 of 2025 was listed before the
learned Special Judge, POCSO, for recording the deposition of
the victim girl. On that date, the accused was attending the
proceedings through Video Conferencing from jail. His advocate
filed an application seeking an adjournment to cross-examine the
victim. However, the said application was rejected, and the
learned Special Judge subsequently appointed a legal aid counsel
on behalf of the accused to conduct the cross-examination of the
witness. He submitted that since the accused was appearing via
video conferencing, he was unable to communicate proper
instructions to his advocate. Consequently, certain questions that
were necessary to be put to the victim could not be asked during
the cross-examination. Therefore, upon being enlarged on bail,
the petitioner engaged a new advocate and preferred an
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application at Exh. 31 under Section 348 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (hereinafter referred called and referred
"BNSS") for recalling the witness. However, the said application
came to be rejected by the learned Special Judge.
6. At the outset, learned counsel for the petitioner submitted
that the learned trial Court ought to have allowed the application
and permitted the cross-examination of the victim on material
aspect.
7. Per contra, learned Additional Public Prosecutor
vehemently submitted that there is no infirmity in the impugned
order and therefore, the captioned petition deserves to be
rejected.
8. Learned counsel Mr. Vipul Savdas Revdariya, appearing on
behalf of respondent No. 2 (original complainant), vehemently
submitted that sufficient opportunity was granted to the
petitioner to cross-examine the witness. He submitted that the
victim girl was examined on 19.11.2025 and, thereafter, at the
request of learned counsel for the petitioner, her further cross-
examination was deferred to 26.11.2025. On 26.11.2025, the
advocate for the petitioner once again filed an application
seeking an adjournment. The said application came to be rejected
in view of the provisions of Section 346 of the BNSS. He
submitted that once the examination of a witness has
commenced, no adjournment should be granted under Section
346 of the BNSS. Consequently, he argued that there is no
infirmity or illegality in the impugned order, and the present
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petition deserves to be rejected.
9. Having heard learned counsels for the parties and having
gone through the record, it emerges from the record that an FIR
being I-C.R.No.1120302550134 of 2025 registered with Junagadh
Taluka Police Station against the present petitioner for the
offence punishable under Sections 137(2), 87, 64(2)(M) of BNS
and under Sections 4, 6, 8 and 12 of POCSO Act, which
culminated into charge-sheet. It emerges from the Rojkam / order
sheet that after charges were framed against the petitioner-
accused on 10.11.2025, the victim was summoned to record her
deposition on 19.11.2025. On 19.11.2025, the chief examination
of the victim was recorded, and the matter was subsequently
adjourned to 26.11.2025 for her cross-examination. On
26.11.2025, learned counsel for the petitioner preferred an
application seeking an adjournment. The said application came to
be rejected, and the learned trial Court appointed an advocate
from Legal Aid to cross-examine the witness. Thus, the learned
trial Court duly followed the prescribed procedure.
10. At this juncture, it would be profitable to refer to the
provision of Section 346 of BNS which reads as under:-
“346. (1) In every inquiry or trial the proceedings shall be
continued from day-to-day basis until all the witnesses in
attendance have been examined, unless the Court finds the
adjournment of the same beyond the following day to be
necessary for reasons to be recorded:
Provided that when the inquiry or trial relates to an offence
under section 64, section 66, section 67, section 68 and
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R/SCR.A/7984/2026 JUDGMENT DATED: 03/11/2026
(GJHC240406602026)
section 70 of the Bharatiya Nyaya Sanhita, 2023 the inquiry
or trial shall be completed within a period of two months
from the date of filing of the chargesheet.
(2) If the Court, after taking cognizance of an offence, or
commencement of trial, finds it necessary or advisable to
postpone the commencement of, or adjourn, any inquiry or
trial, it may, from time to time, for reasons to be recorded,
postpone or adjourn the same on such terms as it thinks fit,
for such time as it considers reasonable, and may by a
warrant remand the accused if in custody:
Provided that no Court shall remand an accused person to
custody under this section for a term exceeding fifteen days
at a time:
Provided further that when witnesses are in attendance, no
adjournment or postponement shall be granted, without
examining them, except for special reasons to be recorded in
writing:
Provided also that no adjournment shall be granted for the
purpose only of enabling the accused person to show cause
against the sentence proposed to be imposed on him Provided
also that—
(a) no adjournment shall be granted at the request of a party,
except where the circumstances are beyond the control of
that party;
(b) where the circumstances are beyond the control of a
party, not more than two adjournments may be granted by
the Court after hearing the objections of the other party and
for the reasons to be recorded in writing;
(c) the fact that the advocate of a party is engaged in another
Court, shall not be a ground for adjournment;
(d) where a witness is present in Court but a party or his
advocate is not present or the party or his advocate though
present in Court, is not ready to examine or cross-examine the
witness, the Court may, if thinks fit, record the statement of
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the witness and pass such orders as it thinks fit dispensing
with the examination-in-chief or cross-examination of the
witness, as the case may be.”
11. Perusal of provision of Section 346 of BNNS clearly
mandates the Court that once the trial has commenced, it has to
be continued. It also provides that the offences related to rape
etc. should be completed within a period of two months. It also
provides that the Court should not grant adjournment to the
party. Clause 2(c) of further provides that mere fact that the
lawyer is busy before another Court cannot be a ground for
adjournment. Section 2(d) further provides that where the
witness is present before the Court and his lawyer is not present,
the Court may dispense with the right of cross-examination.
However, in the present case, the learned trial Court not only
afforded opportunity to the accused to cross-examine the
witness, but also provided an advocate at the cost of Legal Aid.
Thus, the learned trial Court has followed the correct procedure
and has committed no error or illegality in passing the impugned
order.
12. Insofar as moving of application under Section 311 of
Cr.P.C. or 348 of BNSS for recalling of witness is concerned, the
witness should not be recalled in ordinary situation. In case of
Rajaram Prasad Yadav v/s. State of Bihar, reported in 2013 (14)
SCC 761 , the Hon’ble Supreme Court has laid down the following
guidelines for recalling of witness.
“17. From a conspectus consideration of the above decisions,
while dealing with an application under Section 311 Cr.P.C.
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read along with Section 138 of the Evidence Act, we feel the
following principles will have to be borne in mind by the
Courts:
17.1 Whether the Court is right in thinking that the new
evidence is needed by it- Whether the evidence sought to be
led in under Section 311 is noted by the Court for a just
decision of a case-
17.2 The exercise of the widest discretionary power under
Section 311 Cr.P.C. should ensure that the judgment should
not be rendered on inchoate, inconclusive speculative
presentation of facts, as thereby the ends of justice would be
defeated.
17.3 If evidence of any witness appears to the Court to be
essential to the just decision of the case, it is the power of the
Court to summon and examine or recall and re-examine any
such person.
17.4 The exercise of power under Section 311 Cr.P.C. should
be resorted to 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.
17.5 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.
17.6 The wide discretionary power should be exercised
judiciously and not arbitrarily.
17.7 The Court must satisfy itself that it was in every respect
essential to examine such a witness or to recall him for
further examination in order to arrive at a just decision of the
case.
17.8 The object of Section 311 Cr.P.C. simultaneously
imposes a duty on the Court to determine the truth and to
render a just decision.
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17.9 The Court arrives at the conclusion that additional
evidence is necessary, not because it would be impossible to
pronounce the judgment without it, but because there would
be a failure of justice without such evidence being considered.
17.10 Exigency of the situation, fair play and good sense
should be the safe guard, while exercising the discretion. 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.
17.11 The Court should be conscious of the position that after
all the trial is basically for the prisoners and the Court should
afford an opportunity to them in the fairest manner possible.
In that parity of reasoning, it would be safe to err in favour of
the accused getting an opportunity rather than protecting the
prosecution against possible prejudice at the cost of the
accused. The Court should bear in mind that improper or
capricious exercise of such a discretionary power, may lead to
undesirable results.
17.12The additional evidence must not be received as a
disguise or to change the nature of the case against any of
the party.
17.13The power must be exercised keeping in mind that the
evidence that 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.
17.14 The power under Section 311 Cr.P.C. 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 and, therefore, the grant of fair and
proper opportunities to the persons concerned, must be
ensured being a constitutional goal, as well as a human
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right.”
13. Considering the guidelines laid down by the Hon’ble Apex
Court in case of Rajaram Prasad Yadav (supra) , it is settled law
that a witness cannot be recalled merely to fill up a lacuna in the
prosecution case.Herein, the petitioner/accused want to ask
certain questions, which could not be asked during the cross-
examination. The petitioner-accused cannot be permitted to
recall the witness solely to fill up such lacuna, more particularly
when the alleged offence pertains to the POCSO Act.
14. Thus, in view of the above observation, the Court does not
find any infirmity in the impugned order. Hence, the petition
deserves to be and the same is hereby dismissed . Rule is
discharged.
(MOOL CHAND TYAGI, J)
SIDDHARTH
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