KASIF & ANR. Vs. STATE

JUDGEMENT

(1.) IN this Revision Petition, the Revisionist impugns an order dated 06.02.2012 passed by the learned Additional Sessions Judge ("A.S.J.") whereby his prayer for joint trial with co -accused Mozhar was declined. An FIR No. 187/2010 was registered against the Petitioners and one juvenile, namely, Tohid for an offence punishable under Sections 365/ 34 and 376(2)(G) of the Indian Penal Code. The juvenile was arrested on 10.10.2010 and an inquiry was separately conducted by the Juvenile Justice Board with which the present Petition is not concerned. Petitioner No. 1 was arrested on 07.05.2011. Petitioner No. 2, however, could not be arrested. He was declared a proclaimed offender. According to the averments made in the petition, he was arrested only on 07.11.2012, that is, after more than two years of the occurrence and 11/2 years of the arrest of Petitioner No. 1. A supplementary charge sheet was filed against Petitioner No. 2 on 31.01.2013 and the case was committed to the Court of Session. It was assigned to the Court of learned Additional Sessions Judge ("A.S.J.") who was also hearing the Sessions Case against Petitioner No. 1.

(2.) PETITIONERS ' grievance is that Section 223 of the Code of Criminal Procedure mandates that the person accused of the same offence committed in the course of the same transaction must be tried together. The Petitioner No. 2 was arrested almost two years of the incident. Petitioner No. 1 and 2 should be tried together for the same offence which is alleged to have been committed by them in the course of the same transaction.

(3.) JUVENILE Tohid was the first to be apprehended on 10.10.2010 followed by Petitioner No. 1 who was arrested after another seven months on 07.05.2011. The learned A.S.J. in the impugned order has recorded that statement of the prosecutrix (PW1) was recorded on 16.01.2012. In view of the request dated 10.04.2012, the prosecutrix was recalled and cross -examined on 31.08.2012. Again on an Application under Section 311 of the Code of Criminal Procedure, the prosecutrix was called for further cross -examination to a limited extent to confront her with her previous statement. The learned A.S.J. records that the case as against the Petitioner No. 1 is at the stage of final argument, whereas the case as against Petitioner No. 2 had just been committed to the Sessions Court. Thus, she declined the request of the Petitioner No. 2 for a joint trial with the Petitioner No. 1.