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SCR.A/735/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 735 of 2010
=========================================================
SAFIQBHAI
SARIFBHAI KORVALIYA - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR.J
S.SADHWANI for
Applicant(s) : 1,
Mr.L.R.Pujari, APP for Respondent(s) : 1,
MR
NIRAV C THAKKAR for Respondent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 14/03/2011
ORAL
ORDER
This
petition is filed against the order dated 26.8.2009 passed by the
Additional Sessions Judge and 5th Fast Track Court below Exh.7 in
Sessions Case No.85 of 2009 whereby the Sessions Case No.85 of 2009
and Criminal Case No.2289 of 2009 were ordered to be heard together.
The
present respondent nos.2 and 3 (original accused) submitted an
application dated 26.8.2009 at Exh.7 in Sessions Case No.85 of 2009
before the Additional Sessions Judge and 5th Fast Track Court praying
to conduct the trial of Criminal Case No.2289 of 2009 which arises
from I C.R.No.69 of 2008 registered with Palanpur police station and
pending before the Chief Judicial Magistrate, Palanpur and Sessions
Case No.85 of 2009 pending before the Additional Sessions Judge,
Palanpur which arises from I C.R.No.70 of 2008 registered with
Palanpur Police Station, Banaskantha together. The said application
was allowed by the learned Sessions Judge by passing order to call
the papers of Criminal Case No.2289 of 2009. An application for
review being Criminal Miscellaneous Application No.549 of 2009 to
review the said order was filed by the present petitioner which was
rejected vide order date 18.3.2010. Hence this petition.
Heard
the learned advocates for the parties.
Learned
advocate Mr.Sadhwani vehemently argued that the order was passed
under the misconception that both are cross cases and without giving
opportunity of hearing to the present petitioner-original
complainant, other accused persons and learned Public Prosecutor. He
also submitted that the Sessions Court has no power to call for the
case from the trial Court as it is not arising from the same incident
and only the High Court has power under Section 407 of Criminal
Procedure Code to call for the papers. He relied on the judgments in
case of (1) Direndra S/o Ashwani Shikdar V/s State of Maharashtra
reported in (1991)93 BOMLR 94 and (2) State of Gujarat V/s Ratilal
Uttamchand Morabia reported in 1990(0)GLHEL-HC 212392.
On
perusing both the complaints, it appears that so far as the complaint
being C.R.No.I 70 of 2008 is concerned, the incident took place on
25.10.2008 at 21.00 hours and so far as the complaint being C.R.No.I
69 of 2008 is concerned, the incident took place on 25.10.2008 at
20.45 hours and both the incidents were in reference to a Dargah and
between two groups of the same village.
Section
408 of Criminal Procedure Code reads as under:
“408.
Power of Sessions Judge to transfer cases and appeals – (1) Whenever
it is made to appear to a Sessions Judge that an order under this
sub-section is expedient for the ends of justice, he may order that
any particular case be transferred from one Criminal Court to another
Criminal Court in his sessions division.
(2)
The Sessions Judge may act either on the report of the lower Court,
or on the application of a party interested or on his own initiative.
(3)
The provisions of sub-sections (3),(4),(5),(6),(7) and (9) of section
407 shall apply in relation to an application to the Sessions Judge
for an order under sub-section (1) as they apply in relation to an
application to the High Court for an order under sub-section (1) of
section 407, except that sub-section (7) of that section shall so
apply as if for the words “one thousand” rupees occurring
therein, the words “two hundred and fifty rupees” were
substituted.”
Under
Section 408, the Sessions Court has all power and even the Court can
suo motu call for the case if it thinks fit to conduct the trial
along with the other case. Learned Judicial Magistrate, First Class,
Vadgam is under the Sessions Court, Banaskantha at Palanpur and
therefore also the Sessions Court has all power to call for the case
from the learned Judicial Magistrate, First Class, Vadgam. So, there
is no substance in the argument advanced by learned advocate
Mr.Sadhwani that the Magistrate is a different division and so only
the High Court has power to transfer the case. It is pertinent to
note that this is not transfer application but as discussed above,
both the complaints are filed with reference to the same incident and
therefore the Sessions Court has called for the said case. On reading
the complaints, it is, prima facie found that it is the bounden duty
of the Sessions Court to call for the case which is pending before
the learned Judicial Magistrate, First Class. Vadgam and it has
rightly done so.
As
far as the judgment relied upon by learned advocate for the
petitioner is concerned, in that case, the matter was pending before
the Executive Magistrate which does not come under the jurisdiction
of the Sessions Court and so the Sessions Court has no power to call
for the case from the Executive Magistrate. But the facts of this
case are totally different and therefore the ratio laid down will not
apply to this case.
It
is pertinent to note that the present petitioner is the original
complainant of the Criminal Case which is pending before the learned
Judicial Magistrate, First Class and no prejudice will be caused to
him if the case is conducted by the Sessions Court or by the learned
Judicial Magistrate, First Class. The accused persons have not
challenged the said order before this Court.
In
view of the above, I find no reason to interfere with the order
passed by the Sessions Court. Hence, this petition is dismissed.
Notice is discharged.
(
M.D.Shah, J )
srilatha
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