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CR.RA/406/2011 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 406 of 2011
=======================================================
ABBASBHAI
USHMANBHAI AJMERI - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=======================================================
Appearance :
MR
RAJESH K SHAH for Applicant(s) : 1,
MR JM PANCHAL, Spl. PP for
Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 21/10/2011
ORAL
ORDER
The
present Revision Application has been filed by the applicant under
Sections 401, 397, 216, 319 and 482 of the Criminal Procedure Code,
1973 for the prayer that the order passed by the Learned Additional
Sessions Judge, Court No.10, Ahmedabad below application, Exh.69 in
Sessions Case No.35 of 2009 dated 30.08.2011 may be quashed and set
aside and the proceedings of Sessions Case No.35 of 2009 may be
stayed on the grounds stated in the application.
Heard
learned counsel, Mr.Rajesh K. Shah for the applicant and learned
Special Pupblic Prosectuor Mr.J.M. Panchal for the respondent-State.
Learned
counsel, Mr.Shah has referred to the papers and submitted that it is
evident that the incident is of February, 2002 and the charge was
framed in August, 2010. Learned counsel, Mr.Shah submitted that the
witnesses have stated about the involvement of the persons, who are
sought to be arraigned as accused and considering the stage of the
trial that it was pending for recording the further statement under
Section 313 of the Criminal Procedure Code, the application was
rejected. Learned counsel, Mr.Shah has submitted that it has to be
appreciated that the say of few witnesses suggests the involvement
of some persons, who are to be arraigned as accused. He submitted
that therefore the discretion could be exercised in the interest of
justice at any stage and the application could not have been
rejected. He submitted that at-least further investigation could
have been ordered. He, therefore, submitted that the present
application may be allowed.
Learned
Special PP Mr.Panchal, however, resisted the present Revision
Application. He pointedly referred to the provisions of Section 319
of the Criminal Procedure Code and submitted that the statements of
the witnesses recorded under Section 161 of the Criminal Procedure
Code during investigation are not a substantive piece of evidence
and the Investigating Agency has to produce material and evidence
collected during the course of investigation to arraign somebody as
accused. He, therefore, submitted that such powers has to be
exercised sparingly as there are compelling reasons to do so. He
submitted that before exercising such direction under Section 319 of
the Criminal Procedure Code, the Court has to consider the evidence
on record. He, therefore, submitted that the present application may
not be entertained.
Having
heard learned counsel appearing for the respective parties and in
view of the submissions, it is required to be considered whether the
impugned order calls for any interference in exercise of revisional
jurisdiction or not.
It
is well accepted that the scope of revision is limited and the
provision of Section 319 of the Criminal Procedure Code is enabling
the provisions but the Court has to be careful to exercise such
powers sparingly and not casually. Therefore, before a person could
be arraigned as accused during the trial, there has to be a
material, which could be examined in a given case. However, merely
because an application is made, one cannot be arraigned as accused
so easily without any supporting material. It is in these
circumstances, without any reason or justification much less any
compelling reason, there is no need to exercise the discretion under
Section 319 of the Criminal Procedure Code read with Sections 397
and 401 of the Criminal Procedure Code. It is well accepted that
there is no lack of jurisdiction or power but it is a matter with
regard to exercise of such power with caution and on scrutiny of
material and justification for exercise of such powers.
It
is required to be mentioned that the person cannot easily be joined
as accused on the basis of the progress in the trial when some
witnesses have stated something without any further material and
evidence. If that is accepted, it would lead to a chaos whether
during trial, person can make addition of the accused persons
without any reason or justification.
In
the facts of the present case, as there is no such circumstances or
compelling reasons has been pointed out, there is no need to
interfere with the order passed by the Sessions Court.
Hence,
the present Revision Application deserves to be dismissed and
accordingly stands dismissed.
(RAJESH
H.SHUKLA, J.)
/patil
FURTHER
ORDER
After
the order was pronounced, learned counsel, Mr.R.K. Shah has requested
for the stay of operation of the order, which is strongly objected by
the leaned counsel, Mr.Panchal stating that no stay has been
operating in the trial and, therefore, same may not be stayed.
In
the circumstances, the operation of the order is stayed to enable the
applicant to have his recourse before the Hon’ble Apex Court till
11th November, 2011. It is, however, clarified that the
stay regarding operation of the order would not amount to stay of the
trial and as far as possible, the trial may proceed.
(RAJESH
H.SHUKLA, J.)
/patil
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