NATHABHAI GOVINDBHAI BHADRAKA vs STATE OF GUJARAT

R/CR.MA/1077/2026 JUDGMENT DATED: 29/06/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 1077 of 2026
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
==========================================================
Approved for Reporting Yes No
YES
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NATHABHAI GOVINDBHAI BHADRAKA
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR PREMAL S RACHH(3297) for the Applicant(s) No. 1
MR PRAVIN GONDALIYA(1974) for the Respondent(s) No. 2
MR MANAN MEHTA, ADDL.PUBLIC PROSECUTOR for the Respondent(s)
No. 1
==========================================================
CORAM: HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 29/06/2026
ORAL JUDGMENT
1 The object of the criminal justice system is to ensure
that no guilty person escapes punishment and that
no innocent person is wrongfully punished.
2 Keeping the above principle in mind, the present
case is adjudicated.
3 Rule, returnable forthwith. Learned APP Mr.Mehta
waives service of notice of Rule on behalf of the
respondent-State. Learned advocate Mr.Gondaliya
waives service of notice of Rule on behalf of the
respondents.
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4 By way of the present application filed under Section
528 of the Bharatiya Nagarik Suraksha Sanhita, 2023,
the applicant has prayed for quashing and setting
aside the order dated 16.12.2025 passed by the
learned 5th Additional Sessions Judge, Rajkot at
Dhoraji below Exhibit 89, whereby the application
preferred by the prosecution under Section 311 of
the Code of Criminal Procedure seeking recall of the
examination of a witness came to be rejected.
5 Facts Giving Rise to the Present Petition :
5.1. The applicant is the original complainant,
whereas the respondents are the accused in
Sessions Case No.22 of 2023 pending before the
learned Trial Court. It is the case of the applicant
that on 15.07.2023, the applicant's son was
murdered by respondent No.2, pursuant to which
FIR being No.11213064230464 of 2023 came to be
registered with Upleta Police Station for the
offences punishable under Section 302 of the
Indian Penal Code read with Section 135 of the
Gujarat Police Act. Upon completion of the
investigation, the chargesheet came to be filed
before the learned Magistrate and, thereafter, the
case was committed to the learned Sessions Court.
It is further the case of the applicant that when the
Investigating Officer was under examination before
the learned Trial Court, the defence sought
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production of the case diary, which was
accordingly produced below Mark 19. At that
stage, it came to the notice of the prosecution that
PW-18, Dr. Shweta Bathwar, who was examined
below Exhibit 58, had issued the medical
certificate at Exhibit 61 containing facts which
were inconsistent with the entries recorded at
Entry Nos.22, 23 and 24 of the case diary.The said
medical certificate records that the accused was
brought by the police for treatment at about 09:50
p.m. on 15.07.2023 with injuries described as
superficial in nature, allegedly sustained during
the commission of the offence, as per the history
recorded before the Medical Officer. However, the
entries in the case diary indicate that the accused
had gone to the hospital on his own for treatment
prior to his arrest. It is further reflected from the
arrest panchnama that the accused was
apprehended at about 00:30 hours, thereafter
taken for a COVID-19 test, which was found to be
negative, and subsequently, on 16.07.2023
between 11:00 a.m. and 12:00 noon, the arrest
panchnama was drawn showing the time of arrest
as 01:30 p.m. on 16.07.2023.
5.2. Thereafter, at the instance of the learned Public
Prosecutor, the MLC papers pertaining to Case
No.299 were called for from the Government
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Hospital, Upleta. On perusal of the said record, it
was found that an entry had been made showing
that the accused had visited the hospital at about
08:45 p.m. on 15.07.2023 and had furnished his
own mobile number. The said particulars also find
place in the certificate issued by the Medical
Officer, wherein the accused had himself narrated
the history of the incident.
5.3. It is further submitted that two material
witnesses, namely, PW-8 Vijay Harsukhgiri
Goswami, the owner of the gym where the incident
had occurred, who was examined below Exhibit 43,
and PW-7 Piyushgiri Goswami, examined below
Exhibit 40, who is the father of one of the common
friends of the deceased and the accused before
whom the accused had allegedly made an extra-
judicial confession, did not support the prosecution
case in its entirety. Though both witnesses were
examined before the learned Trial Court, their
statements recorded under Section 164 of the
Code of Criminal Procedure inadvertently
remained to be exhibited.
5.4. In the aforesaid background, the prosecution
preferred applications below Exhibits 89 and 90
under Section 311 of the Code of Criminal
Procedure seeking recall of the aforesaid witnesses
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as well as for the purpose of exhibiting their
statements recorded under Section 164 of the
Code. The said applications came to be rejected by
the learned Trial Court and the legality and validity
of the said order is the subject matter of challenge
in the present proceedings.
Contention:
6 Learned advocate Mr. Premal S. Rachh appearing for
the applicant-original complainant submitted that,
during the course of recording of evidence and at the
insistence of the learned advocate appearing for the
defence, the entire Station Diary pertaining to the
date of the incident, i.e. 15.07.2023, came to be
produced on record below Exhibit 81. It is submitted
that it was only upon production of the said Station
Diary that it came to the notice of the prosecution
that the deposition of PW-18, Dr. Shweta Bathwar,
recorded below Exhibit 58, as well as the contents of
the medical certificate at Exhibit 61, were
inconsistent with Entry Nos.22, 23 and 24 of the
Station Diary. It is further submitted that, due to
inadvertence, the statements of two witnesses,
namely, Vijay Harsukhgiri Goswami and Piyushgiri
Goswami, recorded under Section 164 of the Code of
Criminal Procedure, could not be referred to or
exhibited during the recording of their respective
depositions before the learned Trial Court. It is
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submitted that, immediately thereafter, on
08.10.2025, the prosecution preferred applications
below Exhibits 89 and 90 seeking recall of the
aforesaid three witnesses. It was specifically stated in
the said applications that, in view of the documents
produced below Exhibit 81, the MLC papers forming
part of the hospital record, which had been
forwarded by the concerned Medical Officer, being
public documents, were required to be exhibited and
brought on record. Likewise, the statements of the
aforesaid witnesses recorded under Section 164 of
the Code of Criminal Procedure were also required to
be exhibited.
6.1. Learned advocate Mr. Rachh submitted that the
entries in the Station Diary recorded on the date of
the incident go to the root of the prosecution case
and, therefore, the aforesaid documents are
essential for a just adjudication of the matter. It is
submitted that the learned Trial Court failed to
appreciate the true scope and object of Section
311 of the Code of Criminal Procedure while
rejecting the applications preferred by the
prosecution. It is further submitted that the only
ground weighed with the learned Trial Court was
that no satisfactory explanation had been
furnished as to why the applications were filed at
that stage of the proceedings. Learned advocate
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Mr. Rachh submitted that such reasoning is
contrary to the provisions of Section 311 of the
Code, which expressly empowers the Court to
summon, recall or re-examine any witness at any
stage of the inquiry, trial or other proceedings if
such evidence appears to be essential for arriving
at a just decision of the case. It is submitted that,
instead of rejecting the applications on technical
grounds, the learned Trial Court ought to have
exercised its jurisdiction to permit the prosecution
to bring the relevant evidence on record so that
the truth could emerge. It is submitted by the
learned advocate Mr. Rachh that no prejudice
whatsoever would be caused to the defence if the
impugned order is set aside, inasmuch as the
accused would have full opportunity to cross-
examine the recalled witnesses and to challenge
the authenticity and evidentiary value of the
documents sought to be exhibited.
6.2. Learned advocate Mr. Rachh further submitted
that, on the other hand, if the MLC papers and the
statements recorded under Section 164 of the
Code of Criminal Procedure are not brought on
record, there is every likelihood of failure of
justice. It is submitted that an inadvertent
omission on the part of the prosecution cannot be
equated with an attempt to fill up an irreparable
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lacuna in the prosecution case. Rather, where
material evidence essential for a just decision has
inadvertently remained to be adduced, the Court
ought to permit such evidence to be brought on
record in furtherance of the administration of
criminal justice.
6.3. In the aforesaid background, learned advocate
Mr. Rachh prayed that the impugned order be
quashed and set aside and that the applications
below Exhibits 89 and 90 be allowed.
7 Per contra, learned advocate Mr. Pravin Gondaliya
appearing for the respondents submitted that PW-18,
Dr. Shweta Bathwar, was examined below Exhibit 58
after being duly administered oath. It is submitted
that it is not the case of the prosecution that the
witness had resiled from her earlier version or had
deposed contrary to the contents of the medical
certificate so as to warrant her recall. On the
contrary, her deposition is in consonance with the
medical certificate produced on record. It is further
submitted that the MLC papers sought to be
produced are only true copies and contain
overwriting with regard to the time of examination. It
is also submitted that the said documents do not
bear the signature of the concerned Medical Officer.
In view of these circumstances, the genuineness and
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authenticity of the said documents are seriously
disputed and, therefore, the learned Trial Court was
fully justified in rejecting the application seeking
recall of the witness.
7.1. Learned advocate Mr. Gondaliya further
submitted that the medical certificate already
produced on record bears the signature of the
Medical Officer and has been duly proved during
the course of evidence. It is submitted that the
prosecution cannot seek recall of the witness
merely to introduce material which is inconsistent
with the evidence already adduced. It is also
submitted that the statements of the witnesses,
namely, Piyushgiri and Vijay Harsukhgiri Goswami,
recorded under Section 164 of the Code of
Criminal Procedure, were initially not supplied to
the defence. Thereafter, the accused preferred an
application seeking supply of the said statements,
which came to be allowed after hearing both the
sides and despite serious objections raised by the
learned Public Prosecutor. It is submitted that the
Public Prosecutor was fully aware of the existence
of the statements recorded under Section 164 of
the Code of Criminal Procedure. Nevertheless, the
said statements were not referred to while
recording the evidence of the aforesaid witnesses
before the learned Trial Court.
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R/CR.MA/1077/2026 JUDGMENT DATED: 29/06/2026
7.2. It is further submitted by the learned advocate
Mr. Gondaliya that the applications below Exhibits
89 and 90 came to be filed at the fag-end of the
trial, when the Investigating Officer was under
examination, without furnishing any satisfactory
explanation for the delay. In the aforesaid
circumstances, it is submitted that the prosecution
is seeking to fill up the lacuna in its case under the
guise of recalling the witnesses, which is
impermissible in law. It is, therefore, submitted
that the learned Trial Court has rightly appreciated
all the relevant facts and has committed no error
in rejecting the applications. Consequently, no
interference is warranted in exercise of the powers
under Section 528 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 and the present
application deserves to be dismissed.
8 Having considered the aforesaid factual background
and the rival submissions advanced by the learned
advocates for the respective parties, the moot
question that arises for consideration before this
Court is whether the learned Trial Court was justified
in rejecting the applications preferred under Section
311 of the Code of Criminal Procedure ?
9 In order to determine the aforesaid question, it would
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be apposite to refer to the provisions of Section 311
of the Code of Criminal Procedure, which are
reproduced hereinbelow:
“311. 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 as a witness, or examine 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.
9.1. The aforesaid provision is in two parts. The first
part is enabling in nature and confers a
discretionary power upon the criminal Court. It
empowers the Court, at any stage of the inquiry,
trial or other proceedings under the Code, to
exercise any one or more of the following powers:
(i) to summon any person as a witness; (ii) to
examine any person present before the Court,
though not summoned as a witness; and (iii) to
recall and re-examine any person who has already
been examined.

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9.2. The second part of the provision is mandatory in
nature and casts an obligation upon the Court to
(i) summon and examine any person as a witness,
or (ii) recall and re-examine any person already
examined, if his or her evidence appears to the
Court to be essential for arriving at a just decision
of the case. It is well settled that the power
conferred under Section 311 of the Code is
intended to enable the Court to discover the truth
and to render a just decision. Such power is
required to be exercised judiciously and only to
secure the ends of justice.
9.3. The Court is vested with wide powers under
Section 311 of the Code, including the power to
recall a witness for further examination or re-
examination, if such recall is considered necessary
in the interest of justice. However, the exercise of
such power must depend upon the facts and
circumstances of each case and has to be
exercised judiciously and with due caution.
10Keeping the aforesaid principles in mind, if the facts
and allegations already narrated in the earlier part of
this judgment are once again examined, it emerges
that the deceased, namely, Ashish Nathabhai
Bhadarka, had sustained about 16 stab injuries, all of
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which are stated to be ante-mortem in nature, as
reflected in the post-mortem report. It is the case of
the prosecution that, prior to the incident, there was
an altercation between respondent No.2-accused and
the deceased at the gym, namely "Body Fitness",
arising out of an earlier incident relating to recording
a video and the use of abusive language. It is alleged
that, during the evening hours, the respondent No.2
assaulted the deceased on the staircase of the gym.
It is further the case of the prosecution that the gym
owner and other persons present at the scene
immediately shifted the deceased to two or three
hospitals and, ultimately, to Krishna Hospital, where
he was declared dead. The prosecution case is
founded not only upon the ocular evidence of the
witnesses but also upon the CCTV footage collected
during the course of investigation.
11 It is the case of the prosecution that, on 15.07.2023,
Dr. Shweta Bathwar informed the concerned Police
Station at about 09:40 p.m. regarding the arrival of
the deceased at the hospital, whereupon the said
information was recorded in the Station Diary at
Serial No.22. Another entry, being Serial No.23, was
recorded at about 09:50 p.m., stating that the
accused had come to the hospital for treatment of
injuries allegedly sustained during the scuffle.
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Thereafter, as reflected in Entry No.24 of the Station
Diary, the FIR came to be registered at the instance
of the complainant. It is further the case of the
prosecution that the inquest panchnama was drawn
between 11:00 p.m. and 12:00 midnight on
15.07.2023. Exhibit 21, namely the arrest
panchnama, reflects that the accused was initially
apprehended at about 00:30 hours. Thereafter, after
undergoing a COVID-19 test, which was negative, the
accused was formally arrested on 16.07.2023
between 11:00 a.m. and 12:00 noon. The Station
Diary entry at Serial No.3 dated 16.07.2023,
however, records the time of arrest as 01:30 p.m.
The Medical Officer, Dr. Shweta Bathwar, who had
examined the accused and had also conducted the
post-mortem of the deceased, was examined as PW-
18 below Exhibit 58. In paragraph 5 of her deposition,
she stated that on 15.07.2023 at about 09:50 p.m.,
respondent No.2 was brought to the hospital by the
police for treatment and was found to have sustained
a linear superficial injury. The injury certificate came
to be produced below Exhibit 61.
11.1. On perusal of the injury certificate, it appears
that though it records that the accused was
brought by the police, the mobile number
mentioned therein is that of the accused himself,
and the column indicating the person through
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whom the patient was referred has been left blank.
The certificate also mentions the time of
examination as 08:45 p.m. The record further
reveals that, during the course of investigation,
the Investigating Officer had sought the MLC
papers by communication dated 23.08.2023 and
had thereafter sent a reminder on 21.09.2023.
Both the communications form part of the record
and have been produced below Marks 16 and 17
respectively. It further emerges that the said
communications were received by Dr. Shweta
Bathwar on 23.09.2023 through Maruti Courier, as
reflected from the courier receipt. Thereafter, an
endorsement was made indicating that the
medical certificate had been forwarded, which
ultimately came to be produced below Exhibit 61.
11.2.Subsequently, at the instance of the defence,
the entire Station Diary was produced during the
evidence of the Investigating Officer. Upon
examining the Station Diary, the learned Public
Prosecutor called for the original MLC papers on
04.10.2025, which were supplied by Cottage
Hospital, Upleta on 06.10.2025. It is the contention
of the prosecution that the MLC papers disclose
facts inconsistent with the deposition of the
Medical Officer as well as the medical certificate
produced at Exhibit 61. It is true that the MLC
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papers contain overwriting at one place with
regard to the timing. However, except for the said
entry, the timings mentioned elsewhere in the
record appear to be free from any alteration. The
contention raised by the learned advocate for the
respondents that the genuineness of the MLC
papers is doubtful on account of the overwriting
and the absence of the signature of the Medical
Officer cannot be accepted at this stage. In the
opinion of this Court, the veracity, authenticity and
evidentiary value of the said documents are
matters which are required to be examined by the
learned Trial Court after the documents are
formally brought on record and at the stage of
appreciation of evidence. In the considered opinion
of this Court, the MLC papers deserve to be
brought on record, as the timings reflected
therein, the circumstances relating to the
treatment of the accused, and the history recorded
before the Medical Officer go to the very root of
the prosecution case.
12 So far as the statements of the witnesses recorded
under Section 164 of the Code of Criminal Procedure
are concerned, it is true that copies thereof had been
supplied to the accused. However, due to an
inadvertent omission on the part of the prosecution,
the said statements were not referred to or exhibited
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during the examination of the concerned witnesses.
Such negligence or inadvertence on the part of the
learned Public Prosecutor cannot enure to the benefit
of the defence nor can it be construed as an attempt
to fill up an irreparable lacuna in the prosecution
case.After all, the paramount duty of a criminal Court
is to administer criminal justice and to discover the
truth. The Court is not expected merely to count the
mistakes committed by either party or to determine
which side has conducted its case more efficiently. Its
primary obligation is to ensure that all material
evidence necessary for a just adjudication is brought
before it so that the real controversy between the
parties is effectively determined.
13 This Court has referred the decision rendered by the
Apex Court in the case of State of Tripura vs.
Panna Ahmed reported in 2026(0) AIJEL-SC-
77118 wherein the Apex Court has laid down the
following principles:
9. This Court in Natasha Singh v. Central Bureau of
Investigation, (2013) 5 SCC 741, observed as under: 15.
The scope and object of the provision is to enable the
Court to determine the truth and to render a just
decision after discovering all relevant facts and
obtaining proper proof of such facts, to arrive at a just
decision of the case. Power must be exercised
judiciously and not capriciously or arbitrarily, as any
improper or capricious exercise of such power may lead
to undesirable results. An application under Section 311
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Cr.P.C. must not be allowed only to fill up a lacuna in
the case of the prosecution, or of the defence, or to the
disadvantage of the accused, or to cause serious
prejudice to the defence of the accused, or to give an
unfair advantage to the opposite party. Further, the
additional evidence must not be received as a disguise
for retrial, or to change the nature of the case against
either of the parties. Such a power must be exercised,
provided that the evidence that is likely to be tendered
by a witness, is germane to the issue involved. An
opportunity of rebuttal however, must be given to the
other party .…
10. The Supreme Court, in Swapan Kumar Chatterjee v.
Central Bureau of Investigation, (2019) 14 SCC 328,
reiterated that the power under Section 311 CrPC is to
be exercised with great caution and only for strong and
valid reasons. It was observed as under:
11. It is well settled that the power conferred
under Section 311 should be invoked by the court
only to meet the ends of justice. The power is to
be exercised only for strong and valid reasons and
it should be exercised with great caution and
circumspection. The court has wide power under
this section to even recall witnesses for re-
examination or further examination, necessary in
the interest of justice, but the same has to be
exercised after taking into consideration the facts
and circumstances of each case. The power under
this provision shall not be exercised if the court is
of the view that the application has been filed as
an abuse of the process of law.
11. Similarly, the Supreme Court in the case of Vijay Kumar
v. State of Uttar Pradesh & Anr., 2011 (8) SCC 136, observed
that,
14. There is no manner of doubt that the power under Section
311 of Code of Criminal Procedure is a vast one. This power
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can be exercised at any stage of the trial. Such a power should
be exercised provided the evidence which may be tendered by a
witness is germane to the issue involved, or if proper evidence is
not adduced or relevant material is not brought on record due to
any inadvertence. It hardly needs to be emphasized that power
under Section 311 should be exercised for the just decision of
the case. The wide discretion conferred on the court to summon
a witness must be exercised judicially, as wider the power, the
greater is the necessity for application of the judicial mind.
Whether to exercise the power or not would largely depend
upon the facts and circumstances of each case. As is provided
in the Section, power to summon any person as a witness can
be exercised if the court forms an opinion that the examination
of such a witness is essential for the just decision of the case.
12. In State (NCT of Delhi) v. Shiv Kumar Yadav & Anr., (2016) 2 SCC
402, this Court further emphasised that recall of witnesses cannot be
permitted as a matter of course and that the Court must balance the
requirement of a fair trial with other relevant considerations. It was
observed:
27. .Certainly, recall could be permitted if essential for the just
decision, but not on such consideration as has been adopted in
the present case. Mere observation that recall was necessary
for ensuring fair trial is not enough unless there are tangible
reasons to show how the fair trial suffered without recall. Recall
is not a matter of course and the discretion given to the court
has to be exercised judiciously to prevent failure of justice and
not arbitrarily. While the party is even permitted to correct its
bona fide error and may be entitled to further opportunity even
when such opportunity may be sought without any fault on the
part of the opposite party, plea for recall for advancing justice
has to be bona fide and has to be balanced carefully with the
other relevant considerations including un-called for hardship to
the witnesses and un-called for delay in the trial. Having regard
to these considerations, we do not find any ground to justify the
recall of witnesses already examined.”
14 Considering the overall facts and circumstances
of the case, this Court is of the opinion that the
evidence sought to be tendered is germane to the
issues involved and is essential for a fair trial as well
as for arriving at a just and proper decision in the
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case. It is clarified that the accused shall have full
opportunity to rebut the evidence adduced by the
prosecution and that this Court has not expressed
any opinion on the merits of the case, as the
evidence is required to be appreciated and evaluated
by the learned Trial Court at the appropriate stage.
15 Resultantly, present application is allowed. The
impugned order dated 16.12.2025 passed by the
th
learned 5 Additional Sessions Judge, Rajkot at
Dhoraji in Sessions Case No.22 of 2023 at Exhibit 89
is hereby quashed and set aside. Consequently, the
applications filed below Exhibits 89 and 90 stand
allowed.
(M. K. THAKKER,J)
M.M.MIRZA
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