STATE OF GUJARAT Vs. KHENGARBHAI NAVDHANBHAI DODIA

JUDGEMENT

(1.) By way of this application under Article 227 of the Constitution of India, read with Section 482 of the Criminal Procedure Code, the petitioner State of Gujarat has prayed for an appropriate Writ, direction and/or order to quash and set aside the impugned order dated 02.06.2007 passed by the learned Additional Sessions Judge, Fast Track Court No.3, Ahmedabad (Rural) passed below Exh.170 in Sessions Case No.20 of 2005.

(2.) Criminal Misc. Application No.7659 of 2007 is filed by the petitioner original complainant challenging the very impugned order below Exh.170, which is challenged in Special Criminal Application No.1432 of 2007.

(3.) All the respondents are accused in Sessions Case No.20 of 2005 pending in the Court of learned Presiding Officer, Fast Track Court No.3, Ahmedabad (Rural). During trial, the prosecution submitted application below Exh.163 to issue summons upon three witnesses i.e. Clerk, Bailiff, Court Commissioner Shri M.D.Kapadia, to produce original papers / complaint etc. of Regular Civil Suit No.113 of 2004; original documents / papers relating to service of notice for initiating proceedings by Court Commissioner; and the original papers produced by the Court Commissioner relating to the proceedings by Commission produced in Regular Civil Suit No.113 of 2004. On the said application, learned Advocate appearing on behalf of the accused Nos.1,3,4,9 and 23 submitted no objection by making endorsement on the said application that those accused persons have no objection if witnesses named in para 5 of the said application are examined as additional witnesses. The said endorsement was made as all the witnesses named in para 5 are not shown as witnesses in the charge-sheet, therefore, they were treated as additional witnesses. It appears from the record that the learned trial Court considering the application exh.163, endorsement/ no objection submitted by the learned Advocate appearing on behalf of the accused Nos.3,4,9 and 23, by order dated 16th March, 2007, the learned trial Court passed an order to issue summons upon those witnesses named in the said application. That thereafter, after a period of almost one month of passing of the order of issuing summons upon the additional witnesses named in para 5 of the application below exh.163, an application came to be submitted vide exh.170 by the learned Counsel appearing on behalf of accused nos.1,3 and 9 with a prayer that the Court be pleased to call upon the prosecution to examine the witnesses pertaining to proceedings of the Court Commissioner cited in the charge-sheet and till the concerned witnesses are not over, examination of additional witnesses may not be permitted at this stage. Said application was opposed by the learned Public Prosecutor by submitting that once no objection was given by the learned Advocate appearing on behalf of accused Nos. 1,3 and 9 to examine additional witnesses named in para 5 of the application below Exh.163 and when the learned trial Court has issued summons upon those witnesses it is not open for the said accused to submit objections and prayer which is sought in application below Exh.170. It was further submitted that there are no hard and fast rules by which first witnesses named in the charge-sheet are to be examined and only thereafter additional witnesses can be examined. It is submitted that it is ultimately for the learned Public Prosecutor and the prosecution to decide which witnesses are to be examined first. It is also further submitted that no prejudice will be caused to the accused persons if those additional witnesses are examined prior to those witnesses named in the charge-sheet. Inspite of above, learned Additional Sessions Judge, Fast Track Court No.3, Ahmedabad (Rural) by his order dated 02.06.2007 allowed the application Exh.170 by holding that request of prosecution to examine those witnesses is not justified and/or proper until all the witnesses named in the charge-sheet are examined and; that those additional witnesses are required to be examined or can be considered at the time of final stage. Being aggrieved and dissatisfied with the order passed below application Exh.170 dated 02.06.2007 passed by the learned Additional Sessions Judge, Fast Track Court No.3, Ahmedabad (Rural), the petitioner State of Gujarat has preferred the present Special Criminal Application for the aforesaid reliefs.