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CR.RA/43/2002 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 43 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
======================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
======================================
NAGINDAS
TULSIDAS KAPADIA - Applicant
Versus
STATE
OF GUJARAT & 4 - Respondents
======================================
Appearance :
MR
KJ PANCHAL for the Applicant.
MR JK SHAH, APP for Respondent
No.1.
RULE SERVED for Respondent Nos.2 - 5.
MR HORMAZ B SHETHNA
for Respondent Nos.2 - 5.
MR.B K.RAJ for Respondent Nos.2 -
5.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 08/11/2011
ORAL
JUDGMENT
1. The
present Criminal Revision Application under Section 397 read with
Section 401 of the Code of Criminal Procedure has been preferred by
the petitioner – original complainant challenging the impugned
judgement and order dated 30/10/2001 passed by learned Sessions
Judge, Surat in Criminal Appeal No.20 of 2001 acquitting the accused
persons from the offences punishable under Sections 341, 506 read
with Section 114 of the Indian Penal Code.
2. Facts
leading to the present Criminal Revision Application, in nutshell,
are as under :
The
respondents – accused persons came to be tried by the learned
Trial Court for the offences punishable under Sections 188, 341, 506
read with Section 114 of the Indian Penal Code. The learned Judicial
Magistrate, First Class, Surat vide judgement and order dated
16/03/2001 acquitted the accused persons from the offence punishable
under Section 188 of the Indian Penal Code, however, convicted the
accused persons for the offences punishable under Sections 341, 506
read with 114 of the Indian Penal Code and passed an order in
Criminal Case No.14013 of 1994 directing the accused persons to
undergo simple imprisonment for six months and fine of Rs.500/- each.
Being
aggrieved by and dissatisfied with the order of conviction passed by
the learned Trial
Court for the offences punishable under Sections 341,
506 read with 114 of the Indian Penal Code, accused persons have
preferred the Criminal Appeal No.20 of 2001 before learned Sessions
Court, Surat. Simultaneously, original complainant had preferred
Criminal Revision Application No.58 of 2001 for enhancement of
punishment with respect to offences punishable under Sections 341,
506 read with 114 of the Indian Penal Code. Learned Sessions Court,
Surat vide judgement and order dated 30/10/2001 allowed the said
Criminal Appeal No.20 of 2001 and dismissed the Criminal Revision
Application No.58 of 2001 preferred by the complainant, by quashing
and setting aside the order of conviction passed by learned Trial
Court for the offences punishable under Sections 341, 506 read with
114 of the Indian Penal Code. Being aggrieved by and dissatisfied
with the impugned judgement and order passed by the learned Sessions
Court, Surat, the petitioner – original complainant has
preferred the present Criminal Revision Application under Section 397
read with Section 401 of the Code
of Criminal Procedure.
3. Mr.K.J.Panchal,
Learned advocate appearing
on behalf of the petitioner has vehemently submitted that as
the charge was not framed against the accused persons and thereafter
trial has been vitiated. He has further submitted that as such the
Investigating Officer was not examined by the prosecution and,
therefore, this is a fit case to quash and set aside the order of
acquittal and to remand the matter for re-trial. No other submissions
have been made.
4. Heard
learned advocate appearing on behalf of the respective parties and
considered the impugned judgement and order passed by both the Courts
below. The impugned judgement and order passed by learned Sessions
Court, Surat is mainly assailed on the ground that Investigating
Officer was not examined by the prosecution. However, it is required
to be noted that despite number of opportunities given to the
prosecution to bring the Investigating officer and to examine him,
the prosecution failed to produce the Investigating Officer for
examination and, therefore, being an old matter, learned Trial Court
has no other alternative but to proceed further with the trial.
Learned Trial Court has considered another evidence on record and
came to the conclusion that no case is made out against the accused
persons and the same is on appreciation of evidence, which is adduced
by the prosecution. At this stage, this Court is not required to
re-appreciate the evidence on record. Under the circumstances,
solely on the ground that Investigating Officer has not been
examined, the impugned judgement and order passed by learned Sessions
Court, Surat, is not required to be quashed as the learned Sessions
Court has appreciated the other evidences on record.
So
far as contention on behalf of the petitioner that charge was not
framed against the accused persons and the trial has been vitiated is
concerned, it is required to be noted that the plea of the accused
persons were recorded. Under the circumstances, the impugned judgment
and order passed by the learned Sessions Court, Surat is not required
to be quashed and set aside in exercise of revisional jurisdiction.
5. In
view of the above, there is no substance in the present Criminal
Revision Application, which deserves to be dismissed and is
accordingly dismissed. Rule is discharged. Ad-interim relief, if any,
stands vacated forthwith.
[M.R.SHAH,J]
*dipti
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