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SCR.A/1486/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1486 of 2008
=========================================================
VRUJLAL
THAKARSI DUDHGARA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
NITIN M AMIN for
Applicant(s) : 1,
MR RC KODEKAR, ADDL.PUBLIC PROSECUTOR for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 25/08/2008
ORAL
ORDER
1. Rule,
Mr.R.C.Kodekar, learned
Additional Public Prosecutor appearing for the State waives service
of rule.
2. This
petition under Articles 14, 226 and 227 of the Constitution of India
read with Section 482 of the Code of Criminal Procedure, 1973 is
filed by the petitioner/original accused challenging the order date
15.7.2008 passed by the learned J.M.F.C, Jamjodhpur in connection
with M Case NO.2 of 2007 and confirmed by judgment and order passed
by the learned Additional Sessions Judge, Fast Track Court No.1,
Khambhalia in Criminal Revision Application No.102 of 2008 dated
24.7.2008 on various grounds including the fact that complaint is
filed after a gap of about 17 years, at the behest of political
rivals of the petitioner. Not only that but, while passing an order
dated 24th July, 2008, learned Additional Sessions Judge,
though accepting the preposition of law that revision application is
not maintainable under Sections 397(2) of the Code of Criminal
Procedure, 1973 against the interlocutory order, in operative order,
learned Additional Sessions Judge has confirmed the order dated
15.7.2008 passed by the learned Magistrate under Section 167 of the
Code, demanding police custody of the applicant.
3. I
have heard Mr.R.C. Kodekar,learned Additional Public appearing for
the State.
4. Considering
the facts and circumstances of the case, prima facie, the complaint
is filed,admittedly,after 17 years of the alleged incidence. Not only
that but, relevant record is in the custody of the police
and,therefore,seeking remand of the accused applicant for police
custody do not appear to be justified and even reasonings given by
the learned JMFC for allowing the application for remand are not
germane for the purpose for which it is asked.
Considering
the above facts and circumstances, impugned orders passed by the
courts below, namely,the order date 15.7.2008 passed by the learned
J.M.F.C, Jamjodhpur in connection with M Case NO.2 of 2007 and
confirmed by judgment and order passed by the learned Additional
Sessions Judge, Fast Track Court No.1, Khambhalia in Criminal
Revision Application No.102 of 2008 dated 24.7.2008, are herein
quashed and set aside. The application is allowed. Rule is made
absolute. Direct service permitted.
(Anant
S. Dave, J.)
sudhir
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