BHAVESHKUMAR DHIRAJLAL THAKKAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition under Article 227 of the Constitution of India, the petitioner original accused No.3 has prayed for an appropriate writ, direction and/or order quashing and setting aside the order passed below Exh.18 dated 8.6.2007 passed by the learned Additional Sessions Judge, Mehsana passed in Sessions Case No. 41 of 2007. It is also further prayed to direct the learned Additional Sessions Judge, Mehsana to separate the trial / the case of the petitioner from other absconding accused.

(2.) The petitioner is charge-sheeted along with other accused for the offence u/s 395, 397 and 364 of the IPC and criminal case being Sessions Case No.41 of 2007 is pending in the Court of learned Additional Sessions Judge, Mehsana in which the petitioner is the original accused No.3. The original accused Nos.2 and 3 are in jail, however, the original accused No.1 was subsequently enlarged on bail and is absconding and is not remaining present in the Court and against him an arrest warrant is also issued. It appears from the record that notice is also issued to the surety. As the petitioner and original accused No.2 both are in jail and at the same time, the trial is not proceeded further as the original accused No.1 is absconding and is not remaining present during the trial, the petitioner original accused No.3 submitted an application for separating the trial of Sessions Case No. 41 of 2007 below Exh.18, however, the learned Additional Sessions Judge, Mehsana by its order dated 8.6.2007 dismissed the said application mainly on the ground that the offences alleged against the petitioner and other accused are very serious. Being aggrieved and dissatisfied with the same, the petitioner original accused No.3 has preferred present petition under Article 227 of the Constitution of India.

(3.) Shri Barot, learned advocate appearing for the petitioner has vehemently submitted that on one hand, the learned Additional Sessions Judge has observed that as the original accused Nos.2 and 3 are in jail their submissions to proceed further with the trial expeditiously is justified, still the learned trial Court rejected the application for separating the trial for no fault of the petitioner. It is submitted that if the original accused No.1 is absconding and is not remaining present during the trial, the petitioner should not be made to suffer as on one hand, the trial is not proceeded further and on the other hand the petitioner is in jail and is not released on bail. Under the circumstances, it is requested to direct the learned trial Court to separate the trial so far as the petitioner and original accused No.2 are concerned, who are in jail.