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CR.RA/209/2010 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 209 of 2010
=============================================
BACHUJI
MAFAJI THAKOR & 1 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=============================================
Appearance :
MR
TUSHAR CHAUDHARY for Applicant(s) : 1 - 2.
MR KARTIK PANDYA APP
for Respondent(s) : 1,
=============================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 08/04/2010
ORAL
ORDER
This
revision application under Section 397 read with Sections 401, 311
and 482 of the Code of Criminal Procedure, 1973 and under Articles
226 and 227 of the Constitution of India is filed by the applicants
against the order passed by the learned Sessions Judge, Fast Track
Court, Deesa Camp below Exh.311 and further prayed to recall the
witness viz. PW 42 Kamalkhan Bhikhekhan Baloch whose deposition was
recorded at Exh.301 in Sessions Case No.141 of 2002 pending before
the Court.
It
is contended that examination-in-chief of the above witness was over
and due to non-availability of the Senior Advocate appearing in the
case, colleague of the Senior Advocate, Mr.M.L.Desai requested for
adjournment, which was refused but when the Court asked the advocate
to cross-examine the said witness, he had refused to do so. The
above order passed on 18.01.2007 was not challenged before the higher
forum. Later on an application was preferred on 28.11.2008 to recall
the witness in exercise of powers under Section 311 of the Code on
the ground that though examination in chief of the above PW-42 was
over no opportunity was given to the accused to cross-examine the
said witness, and therefore, in the interest of justice prayer was
made to exercise the above powers. Having heard learned counsel for
the parties, learned Sessions Judge opined that on earlier occasion
application being Exh.33 for the similar request was rejected by his
predecessor on 25.04.2007, and therefore, when no challenge was made
against the said order after a lapse of two years the second and
subsequent application was not maintainable.
The
above reasoning of the learned Judge cannot be said to be contrary to
law and when on earlier occasion an application was rejected on
25.04.2007 and against which no remedy was exhausted by approaching
the appellate forum, similar request after the period of 2 years to
recall the witness and rejection thereof by the learned Sessions
Judge cannot be said to in any manner illegal, more particularly,
when on earlier occasion learned advocate who was present in the
court refused to cross-examine the said witness.
In
view of the above, there is no substance in this application and
accordingly it is rejected.
[Anant
S. Dave, J.]
*pvv
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