RAMESHBHAI KHODABHAI RABARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned advocate Mr.Apurva K. Jani for learned advocate Mr.Ashish Dagli for the petitioner and learned advocate Mr.Y.J.Patel for the respondent no.2 and learned APP Mr.H.K.Patel for the respondent - State.

(2.) Petitioner herein is original complainant whereas respondent no.2 is proposed accused. It is undisputed fact that petitioner complainant has preferred an application at Exh.93 before the Trial Court in pending Sessions Case No.12 of 2011 against the original accused for joining as many as five persons as additional accused under Section 319 of the Criminal Procedure Code. It is undisputed fact that when such application at Exh.93 was dismissed by impugned judgment and order dated 13.07.2015, the petitioner has preferred Criminal Revision Application No.630 of 2015. It is also undisputed fact that by reasoned order dated 02.02.2018 this Court has while allowing such Criminal Revision Application No.630 of 2015 specifically observed and ordered that pursuant to allowing this revision application, an application at Exh.93 dated 13.07.2015 by the petitioner in Sessions Case No.12 of 2011 at Morbi is allowed as prayed for by quashing and setting aside the order dated 13.07.2015. Therefore, this Court has directed the respondent no.1 being Investigating Agency to produce all original letters/applications submitted by complainant and witness with a further direction on issue regarding evidence against such proposed accused. Thereby, practically when in application at Exh.93 before trial Court, petitioner has pleaded and prayed to join five persons as additional accused namely Tulsibhai Kasundra, Ketan Trambakbhai, Manish Trambakbhai, Jayesh Tulsibhai Kasundra and Rugnath Patel and when such application is allowed as prayed for, the Court's direction is to join all these five persons as additional accused. Disclosure of name of five persons are in two paragraph of such application i.e. paragraph no.4 and paragraph no.10 and therefore, practically there cannot be any technicalities in joining in all five persons as additional accused.

(3.) However, unfortunately while preferring Criminal Revision Application No.630 of 2015 petitioner has not joined present respondent no.2 as respondent in revision application and therefore, order dated 02.02.2018 in Criminal Revision Application No.630 of 2015 so interpreted by all concerned including Sessions Court that the petitioner has challenged the order only against those four persons. To some extent it may be correct position because pursuant to provision of Section 397 and 401 of Cr.P.C., no order can be made to prejudice any such person unless he had opportunity of being heard. Therefore, petitioner has filed this another petition against present respondent no.2 praying to join him as an accused.