STATE OF GUJARAT Vs. KALU KHODA

JUDGEMENT

(1.) These are four Criminal Revision Applications together with an application No. 89 of 1962 for bail by the accused in sessions Case No. 15 of 1961.

(2.) On the 19th of September 1960 at about 10-0 P. M. the accused Kalu Khoda Taj Mahomed Siddi and five others were said to have committed dacoity at the house of one Mohanlal Narbheram in the village Tatenia Amreli District. The accused Taj Mahomed and five others were chargesheeted in respect of the aforesaid offence in the Court of the learned Judicial Magistrate First Class Dhari under sections 395 398 read with section 109 of the Penal Code and section 19(e) of the Arms Act. That case was numbered as Criminal Case No. 804 of 1960. The accused Kalu Khoda could not be chargesheeted at that time as he was absconding and therefore a separate chargesheet had to be lodged in the Court of the same learned Magistrate being Criminal Case No. 405 of 1961. It was only on the 23rd of Match 1961 that the accused Kalu Khoda was arrested. One of the accused persons Nanji Suleman was in the meantime tendered pardon by the sub-divisional Magistrate Amreli. The learned committing Magistrate examined some of the witnesses in case No. 804 of 1960 against Taj Mahomed and others but the prosecution did not examine the approver Nanji Suleman. In respect of the case against the accused Kalu Khoda no witnesses were examined at all by the prosecution not even the approver Nanji Suleman. The orders committing the accused Taj Mahomed and others and Kalu Khoda were respectively passed on the 17th of January 1961 and 16th of May 1961 committing them in respect of the aforesaid offence to the Court of Session Amreli.

(3.) On the 6th of June 1961 the learned Public Prosecutor filed an application in both the Sessions Cases being Sessions Cases Nos. 6 and 15 of 1961 praying that a reference should be made to this Court for quashing the committal orders passed by the learned committing Magistrate on the ground that contrary to the provisions of sub-section (2) of section 337 of the Code of Criminal Procedure the approver Nanji Suleman had not been examined in the Court of the committing Magistrate in both the cases. In the alternative it was prayed that one months adjournment should be granted in both the cases to enable the State to file Revision Applications to this Court for the purpose of quashing the aforesaid committal orders. It is in these circumstances that these applications have come up for hearing before us.