Judgement of the Gujarat High Court in BEST Bakery Case Justices ...

Provided that the Judgement must be based upon facts declared by this Act to be relevant,
and duly proved:
Provided also that this section shall not authorize any Judge to compel any witness to
answer any question or to produce any document which such witness would be entitled to
refuse to answer or produce under sections 121 to 131, both inclusive, if the questions
were asked or the documents were called for by the adverse party; nor shall the Judge ask
any question which it would be improper for any other person to ask under section 148 or
149; nor shall be dispense with primary evidence of any document, except in the cases
hereinabove excepted.”
From the bare reading of Section 165 of the Evidence Act, it is clear that the
learned Judge in order to discover or to obtain proper proof of the relevant fact could
have asked any question he pleases, in any form, at any time, to any witness subject to
proviso (1) of Section 165 of the Act that the judgement must be based upon facts
declared under the Act to be relevant and duly proved. Second proviso to Section 165 of
the Act shall not authorize to any Judge to compel any witness answer any question.
There cannot be any quarrel with the principle laid down by the Hon’ble Supreme Court
in the aforesaid judgements about the powers of the learned Trial Judge under section 165
of the Evidence Act, but none of the judgement of the Hon’ble Supreme Court has
application to the facts of the present case, therefore, we have retrained ourselves from
dealing with the same in detail. Suffice it to say that there was nothing on record before
the learned Trial Judge to exercise his powers under Section 165 of the Act. Hence this
submission of the learned Advocate General is also rejected.
13. At this state, we must state that the learned defence Counsel Shri Sushil Kumar has
brought to our notice provisions of Section 167 of the said Act and submitted that there
cannot be no new trial in this case. He submitted that improper admission and rejection of
evidence by itself would not be a ground for a new trial or retrial by reversing the
judgement and order of acquittal passed in this case.
14. Learned Advocate General then made serious grievance about the failure on the part
of the Public Prosecutor for not examining injured witnesses. He submitted that the
Public Prosecutor had produced Exh. 36 / 68, statement of Rahishkhan Aminkhan
Mohmad @ Pathan (at page 486 of the compilation) on the commencement of the
prosecution case though the prosecution was neither relying on it nor it was called upon
by the accused sought to be produced it before the court. He submitted that the said
statement of Rahishkhan Pathan is allowed to be wrongly exhibited and treated as FIR by
the Public Prosecutor. In the cross examination of PI Shri Baria, PW – 70, Exh. 171
though it was recorded by Head Constable Abhesinh Fatabhai, PW – 72 Exh. 182, who
was examined later on 20.6.2002 whereas PI Paria was examined before the court earlier
on 18.6.2002. He submitted that in the said statement of this witness Rahishkhan Pathan,
recorded on 2.3.20032, the names of the accused persons were not disclosed, but in his
subsequent statement recorded on 4.3.2002 by PI Baria in SSG Hospital, Vadodara, he
had given names of at least 5 accused persons. In spite of it, when Rahishkhan Pathan’s
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