1. By way of this Revision Application, the applicant has prayed to quash and set aside the impugned order dated 19.3.2011 passed by the learned Additional Sessions Judge, Fast Track Court No.3, Khambhaliya in Sessions Case No.57 of 2008 below Exhibit 11.
2. Learned advocate Mr. Kakkad for the applicant, who is original accused No.2 of C.R. NoII3 of 2008. He also submitted that the FIR of Criminal Case No.197 of 2008 was lodged by Devabhai Bhimabhai Pata (Mer), respondent No.2 for the offences punishable under Sections 323, 504, 506(2) and 114 of the Indian Penal Code and said case is triable by Judicial Magistrate First Class, Jamjodhpur and the FIR of Sessions Case No.57 of 2008 was lodged by present applicant for the offences punishable under Sections 333, 332, 323, 504, 506(2) and 114 of the Indian Penal Code, which is triable by Sessions Court. Therefore, these cases should be tried by the different Courts as per their jurisdiction. He also submitted that the Criminal Case No.197 of 2008 is triable by the learned Magistrate and against which, a Revision is tenable before the Sessions Court and therefore, as per his submissions, if the said case is tried by the Sessions Court then right of the accused will be prejudiced. He also submitted that both the incidents occurred on different time and therefore, witnesses of the incidents are different. He also submitted that the accused preferred application Exhibit 11 by stating that there is cross cases and therefore, prayed to pass an order to call for the Criminal Case from the Jamjodhpur Court. In the application, it is stated that cross case is of same incident and, therefore, there should be a one trial. He submitted that in fact both the incidents happened on a different time, witnesses are different and therefore, as per his say, it cannot be said that offences is of same incident. He also submitted that there is no sufficient ground for joint trial and though without issuing notice or affording opportunity of hearing, the order impugned is passed by the learned trial Judge. Learned advocate read the order passed below Exhibit 13 of the Fast Track Court No.4, on 4.3.2011, wherein learned advocate for the accused made an endorsement that they are are not placing the said application and that application was disposed of and on the similar ground the application Exhibit 11 was disposed of on 19.3.2011. Therefore, he prayed to quash and set aside the order passed below Exhibit 11 by the learned Sessions Judge.
3. Learned APP Mr. Jani for the State read the date of the order and contents of the order passed below Exhibit 11 and submitted that learned Sessions Judge has not observed anything about the order, which is passed below Exhibit 13 dated 4.3.2011.
4. Heard learned advocate Mr. Dantani for respondent Nos.2 to 5.
5. I have perused the application along with papers as well as the orders passed below Exhibit 11 and 13 by the Sessions Court. I have also considered the submissions made by the learned advocate for the parties. From the order passed by the learned trial Judge, it is found to be erroneous and learned trial Judge has not taken into consideration the provisions of law, while passing the order. The incident occurred on the same date but the witnesses are different and even the time is also different. Therefore, I am of the view that the matter is required to be remanded back to the concerned trial Court.
6. In view of the above, this Revision is partly allowed. The impugned judgment and order dated 19.3.2011 passed by the learned Additional Sessions Judge, Fast Track Court No.3, Fast Track Court No.3, Khambhaliya in Sessions Case No.57 of 2008 is hereby quashed and set aside. The case is remanded back to the trial Court with a direction to decide the same on merits and in accordance with law, after affording opportunity of hearing to the parties. The learned District Judge, Jamnagar is directed to notify the said Criminal Case before the concerned Sessions Court with a direction to decide the said case within a period of one year from the date of receipt of the writ of this order. R & P, if received, be sent back to the trial Court, forthwith.
ynvyas (Z.K.SAIYED,J.)