R/SCR.A/7634/2025 ORDER DATED: 09/07/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7634 of 2025 ========================================================== RIZWAN IQBALBHAI KHICHI Versus STATE OF GUJARAT ========================================================== Appearance: MR MAHESH K POOJARA(5879) for the Applicant(s) No. 1 MS JIRGA JHAVERI, APP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 09/07/2025 ORAL ORDER (1) Heard Mr. Mahesh Poojara, learned counsel for the petitioner and ld. APP for the respondent State. (2) By way of this petition, the petitioner has prayed for quashing and setting aside the order dated passed below Exh:108 passed by ld. 5th Additional District Judge, Rajkot, in Sessions Case (Atro.) No.29/2017 dated 10.01.2025. (3) Limited grievance of the petitioner is that, an application under Section 311 of Cr.P.C came to be filed by the prosecution and two injured witnesses were recalled and their deposition came to be recorded as PW:14 at Exh:103 and PW:15 at Exh:105. Though junior advocate of learned advocate appearing for the accused/defense made a request to ld. Court to adjourn the matter as his senior who representing accused is out of station, but the same was turned down and closed the right of cross-examination of the said two witnesses and the adjournment application filed by the petitioner at Exh:104 came to be rejected. Thereafter, application was filed to reopen the stage and to give an opportunity to cross-examine the witnesses, but R/SCR.A/7634/2025 ORDER DATED: 09/07/2025 the same was turned down by the learned Special Judge on the ground that the application to open the right of cross-examination is already closed and if such application is allowed, then it would amount to recall its own order, which amounts to review, which is impermissible under the Code of Criminal Procedure. (4) Having heard learned advocates and going through the facts of the case, it appears that the petitioner has applied to cross-examine the witnesses. Denial of such right to cross-examine the witnesses would adversely affect the proper defense and fair trial. Hence, in the interest of ensuring a fair trial, the liberty to cross-examine the injured witnesses must be extended to the accused. The failure to provide such an opportunity undermines the accused right and denial of a fair trial. Even, without the opportunity for cross-examination is nothing, but the chief examination without testing of evidence which alone holds no substantive evidentiary value. (5) Keeping in mind the aforesaid facts, it is expedient that ample opportunity must be afforded to the accused to ensure a fair trial and to enable him to properly defend himself. As submitted by the learned counsel for the petitioner, the trial is pending at the stage of recording further statements, and no substantial progress has been made following the rejection of the impugned applications. Hence, the petition deserves consideration. Order passed below Exh:108 by learned 5th Additional Sessions Judge, Rajkot, in Sessions Case (Atro.) No.29/2027 dated 10.01.2025 is hereby quashed and set aside and the Sessions Court is directed to permit the accused to cross-examine the witnesses i.e. PWs:14 and 15, subject to deposit cost of Rs.500/- for each witness before the Sessions Court. The said cost is to be paid to R/SCR.A/7634/2025 ORDER DATED: 09/07/2025 both the witnesses after their cross-examination is over. Direct service is permitted. (6) With the above observation and direction, petition stands disposed of. (HASMUKH D. SUTHAR,J) SUCHIT Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: PATEL SUCHIT JAYESHBHAI(HC01083), Private Secretary, at High Court of Gujarat on 11/07/2025 11:03:51