1. Admit. Mr.L.B.Dabhi, learned Additional Public Prosecutor waives service of notice of admission on behalf of respondent No.1 – State and Mr.Dipen Dave, learned advocate waives service of notice of admission on behalf of respondent No.2.
2. In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present Criminal Appeal is taken up for final hearing today.
3. The present Criminal Appeal u/s.341 of the Code of Criminal Procedure has been preferred by the appellant herein - original accused No.4 to quash and set aside the impugned order dated 29/02/2012 passed by learned 3rd Additional Sessions Judge, Surendranagar passed below Exh.71 in Special Case No.51 of 2010, by which, learned 3rd Additional Sessions Judge, Surendranagar has rejected the said application preferred by the appellant herein - original accused No.4 to initiate the proceedings against the original complainant u/s.340 of the Code of Criminal Procedure.
4. From the impugned order, it appears to the Court that learned Additional Judge was of the opinion that unless and until entire evidence in trial is not recorded, no proceedings can be initiated against the original complainant u/s.340 of the Code of Criminal Procedure. However, instead of rejecting the application Exh.71, learned Trial Court ought to have kept the said application pending and to decide the same at the time of conclusion of the trial and after entire evidence is recorded.
5. In view of the above, there is broad consensus between learned advocates appearing on behalf of the respective parties to quash and set aside the impugned order passed by learned 3rd Additional Sessions Judge, Surendranagar and to remand the matter to the leaned Additional Sessions Court to decide the said application at the time of conclusion of the trial and after considering the entire evidence on record.
Learned advocates appearing on behalf of the respective parties do not invite any further reasoned order. However, they have requested to make suitable observation that this Court has not entered into the merits of application No.71 and has not expressed anything on merits of application Exh.71 and the concerned Court to decide the same in accordance with law and on merits and after considering the entire evidence on record.
6. In view of the above and for the reasons stated hereinabove, the present Criminal Appeal succeeds in part. Without further entering into the merits with respect to application Exh.71 and without expressing anything on merits of application Exh.71, the impugned order dated 29/02/2012 passed by learned 3rd Additional Sessions Judge, Surendranagar below Exh.71 in Special Case No.51 of 2010 is hereby quashed and set aside and the matter is remanded to the learned Additional Sessions Judge, Surendranagar to decide and dispose of the said application afresh in accordance with law and on merits, at the time of conclusion of the trial and after considering the entire evidence on record and after giving an opportunity to all concerned. The present Criminal Appeal is allowed to the aforesaid extent.
[M.R.SHAH,J] *dipti