1. Rule.
Learned APP Mr. Jani waives service of Rule on behalf of the respondent - State.
2. By way of this application, present applicant has challenged the orders passed below Exhibit 63 and 67 in Atrocity Case No.18 of 2006 dated 13.7.2011 and 15.7.2011 respectively, by the learned Additional Sessions Judge and Presiding Officer, Fast Track Court No.2, Narmda, Rajpipla.
3. Party-in-person, Mr. Divyesh Joshi, who is original accused in Special Atrocity Case No.18 of 2006, read the contents of application below Exhibit 63 and order passed therein. He also submitted that it is a right of the present applicant to recall the witness for further cross-examination. Learned trial Judge has not entertained that application below Exhibit 63 and thereby the right of the applicant to defend himself in that Special Atrocity Case, has been infringed. Therefore, he prayed to allow this Revision Application.
4. Learned APP Mr. Jani read the applications below Exhibit 65 and 67 as well as orders passed therein. He submitted that the submissions applicant are totally against the facts of the case. He also submitted that the present applicant has no case. He also read the contents of application below Exhibit 63 and submitted that when the said application is yet pending before the learned Sessions Judge, then the question of filing this Revision for challenging the order below Exhibit 63 application, cannot arise. He submitted that there is no order passed below Exhibit 63 and therefore, this Revision Application is required to be dismissed.
5. Heard both the parties and perused the application along with the contents of the applications below Exhibit 63, 65 and 67 as well as order passed therein. Learned trial Judge has observed that as per the case of State of U.P. Vs. Shambhunath reported in AIR 2001 SC 1403 and Section 309 of the Code of Criminal Procedure, the case of the applicant is required to be heard on day-to-day and therefore, same has been fixed for hearing on day-to-day basis. The said application below Exhibit 63 has been adjourned on next day, but on next day, present applicant has filed one more application below Exhibit 65 for adjournment by praying time for 15 days. Learned trial Judge has rejected the same and has observed that in light of the case of State of U.P. (Supra), that application below has been rejected. Thereafter, the applicant preferred another application below Exhibit 67, wherein he prayed for time for 15 days for preferring Revision before the High Court and mentioned that by referring the case of State of U.P. (Supra), the matter has been fixed for hearing on day-to-day basis and thereby, injustice is caused to the applicant. Therefore, the learned trial Judge has issued non-bailable warrant against the applicant - accused by order dated 15.7.2011 below the application Exhibit 67. The said order is stayed by this Court vide order dated 20.10.2011 in this matter. So far as application below Exhibit 63 is concerned, that application is yet pending before the learned trial Judge, therefore, the question of deciding this Revision Application does not arise and the applications have been filed against the order below Exhibit 63 and 67. The application below Exhibit 63 itself is yet pending before the trial Court and in application below Exhibit 67, the trial Court has issued non-bailable warrant against the applicant, as the applicant has not remained present even after the matter is fixed for the hearing on day-to-day basis. Therefore, I do not find any substance in this Revision Application and hence, the same is rejected. Record and proceedings are ordered to be sent back to the concerned trial Court. Rule is discharged.
6. Party-in-person requests for extension of interim relief. Request is granted. Present applicant is permitted to move before the trial Court for cancellation of the non-bailable warrant passed in application below Exhibit 67 dated 15.7.2011. The trial Court is directed to decide same in accordance with law and till the trial Court decides such application on its merits, effect of non-bailable warrant is stayed. Learned trial Judge is also directed to decide the application below Exhibit 63 filed by the present applicant in accordance with law.
(Z.K.SAIYED,J.) ynvyas Top