SHEIKH MADINABIBI MUSTAFABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner-original complainant has moved this Court by filing Cri.Rev. Application No.94/2004 invoking jurisdiction of this Court under Sec.397 R/w Sec.401 of The Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC), challenging the order passed by ld. Addl. Sessions Judge, Fast Track Court of District Panch Mahals at Godhara dated 20.1.2004 passed below application Exh.156 in Sessions Case No.160/2002 and Sessions Case No.59/2003. On perusal of certified copy of the application exh.156 submitted in the proceedings of above-referred two Sessions Cases, it emerges that by pointing out certain irregularities and infirmities, the complainant requested the Court to recall Seven witnesses examined by the prosecution invoking the powers vested with the Court under Sec.311 of CrPC. In the relief clause para-10 of the application exh.156, the complainant prayed for recalling of following seven witnesses and also simultaneously prayed that their depositions may be recorded in light of the contentions raised in the application. These witnesses are:- (i) P.W.2 Chandubhai Shankarbhai (ii) P.W.3 Rameshbhai Chandubhai Nayak (iii) P.W.4 Nanabhai Kalubhai Harijan (iv) P.W.7 Hunedbhai Junedi Dahodwala (v) P.W.8 Babubhai Fulabhai. (vi) P.W.12 Kantibhai Madabhai. vii) P.W.13 Bharatbhai Budhabhai.

(2.) (i) It is not a matter of dispute that the petitioner is the only complainant of the offence registered with Kalol Police Station of District Panch Mahals being CR No.I.41/2002 on 3rd March 2002. The complaint discloses various offences punishable under Indian Penal Code and also offence punishable under Sec.135 of the Bombay Police Act. After registration of offences punishable under sections 143, 147, 148, 149, 392, 397, 153(A), 201, 436, 120(B) of Indian Penal Code, the police also added one more offence punishable under Sec.376 of Indian Penal Code.

(3.) The order rejecting application exh.156 is the order under challenge. When Revision Application No.94/2004 was taken up for admission hearing on 1.3.2004, the Court found that there is some strength in the grievances raised by the petitioner. So, keeping the question as to the locus of the complainant open, the Court ordered to issue notice to the respondents and the same was made returnable on 8.3.2004. On perusal of the order under challenge as well as xerox copies of the depositions of Prosecution Witness Nos. 2, 3, 4, 7, 8, 12 & 13 tendered by Mr. Malkan, ld. counsel appearing for the petitioner, the Court initiated suo motu revision proceedings and directed the Registry to issue notice to the accused persons to show cause as to why reliefs prayed in the Revision Application filed by the original complainant and/or any other appropriate orders which are likely to go to the root of the conduction of the trial, should not be passed. Because of this order, second Revision Application i.e. Cri. Revision Application No.142/2004 came to be registered in exercise of the revisional powers. Meanwhile, further proceedings of the trial has been stayed. In the very order, the Court ordered to join ld. Spl.PP conducting the trial as party-respondent in Cri. Rev. Application No.94/2004 as well as Cri. Rev. Application No.142/2004 and ld. Spl.PP conducting the trial was asked to appear in person before the Court on the next date of hearing so that the Court can ask certain questions as to the role as Public Prosecutor in conducting the trial.