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CR.MA/14706/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 14706 of 2009
In
CRIMINAL
APPEAL No. 2634 of 2009
With
CRIMINAL
APPEAL No. 2634 of 2009
=========================================================
STATE
OF GUJARAT - Applicant(s)
Versus
PATEL
KAMLESHKUMAR CHANDRAKANT & 4 - Respondent(s)
=========================================================
Appearance :
MR
MAULIK NANAVATI, APP for
Applicant(s) : 1,
None for Respondent(s) : 1 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 30/09/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
It
appears that by the present application, leave is prayed by the
State against the judgement and order dated 19.09.2009 passed by the
learned Sessions Judge in Criminal Appeal No.17/08, whereby the
order of acquittal passed by the learned Magistrate has been
confirmed and the appeal of the State has been dismissed.
As
per the provisions of section 378 sub-section (1) clause (b) of
Cr.P.C., if the State is inclined to invoke the power, such can be
invoked only if the order passed by the learned Sessions Judge for
acquittal is not under clause (a) of section 378 (A) and therefore,
the present application for leave to prefer appeal as well as appeal
both would not be maintainable and if State is aggrieved by the
judgement and order of the learned Sessions Judge affirming the
acquittal, it has to resort to appropriate proceedings of revision
in accordance with law. We may also record that Criminal Revision
Application No.732/09 appears to have been preferred by Patel
Dimpleben Dahyabhai, who appears to be the original complainant and
the said revision has been withdrawn by her vide order dated
02.07.2010 passed by this Court (Coram:Akil Kureshi, J.) with the
declaration that the issues have been resolved between the parties.
At
this stage, Mr.Maulik Nanavati, learned APP states that in view of
the above, the State may be permitted to convert the present
application for leave to prefer and appeal and criminal appeal
itself as Criminal Revision Application.
We
are not inclined to grant such permission in view of the peculiar
circumstance that the original complainant who preferred Criminal
Revision Application No.732/09 has also withdrawn the revision since
the issues were settled between the parties.
Hence,
the present application is disposed of as not maintainable and
consequently, the appeal would also not survive and shall stand
disposed of.
(JAYANT
PATEL, J.)
(H.B.ANTANI,
J.)
*bjoy
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