(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. All the applications are for leave to prefer appeal by the victim, the complainant in one matter and also injured witness in another, against the common judgment and the order passed by the learned Sessions Judge in Sessions Cases No.7/2009, 120/2008 and 275/2002, whereby 14 persons, who were original accused, have been acquitted by the learned Sessions Judge.
2. We have heard Mr.Mihir Desai, learned counsel appearing with Mr.K. N. Shastri at length.
3. It is an undisputed position that against the very judgment and the order passed by the learned Sessions Judge in the concerned sessions cases, the State has already preferred appeal against the order of acquittal against 31 accused, who were acquitted by the learned Sessions Judge being Criminal Appeal No.192 of 2012 with the application for leave to prefer appeal being Criminal Misc. Application No.2663 of 2012 and in the said proceedings, leave has been granted by this Court and the appeal of the State has been admitted vide order dated 27.4.2012 passed by this Court.
4. It is also an admitted position that against the very judgment and the order of the learned Sessions Judge in the concerned sessions cases for acquittal, the Special Investigation Team (SIT), which was constituted by the Hon'ble Apex Court as per the decision in the case of National Human Rights Commission v. State of Gujarat & Ors., has preferred Criminal Misc. Application No.1975 of 2012 for leave to prefer appeal with the appeal against the order of acquittal of the learned Sessions Judge and in the said application for leave to prefer appeal, this Court has passed the order on 27.4.2012 as under :
"1. The present application for leave to prefer an appeal has been preferred by Special Investigation Team (hearing after referred to "SIT" for short) against the common judgment and order passed by the learned Sessions Judge in Session Case nos. 275/2002, 120/2008, 7/2009, whereby the learned Session Judge has acquitted 31 respondents, who are original accused for the offence under section 143, 147, 148 and 302 read with sections 149, 307 and other charged offences. We may record that the State has also preferred an appeal being Criminal Appeal no. 192/2012 with Criminal Misc. Application No. 2663/22012 for leave to prefer appeal. Today, as per the order passed by this Court in the aforesaid Criminal Appeal with application for leave to prefer appeal, leave has been granted to the State to prefer an appeal and the appeal of the State being Criminal Appeal no. 192/2012 has been admitted.
2. We have heard Mr. Anandjiwala with Mr. Suresh Shah, learned Special PP for SIT. Peculiar circumstances in the present application is that the application for leave to prefer appeal has been preferred by SIT constituted by the Apex Court as per its decision in case of National Human Rights Commission Vs. State of Gujarat and Ors reported in 2009 (6) SCC 342 and more particularly the observation made by the Apex Court at para 10 which is reproduced as under:
"10. We make it clear that SIT shall be free to work out the modalities and the norms required to be followed for the purpose of inquiry/investigation including further investigation. Needless to say the sole object of the criminal justice system is to ensure that a person who is guilty of an offence is punished."
3. The aforesaid shows that constitution of SIT by the Apex Court as per above referred decision is to ensure that the person who is guilty of an offence is punished. Attempts of the SIT in the present application for leave to prefer appeal as well as in the appeal are to show that the learned Sessions Judge ought not to have granted acquittal to the concerned accused who are respondent nos. 1 to 31 herein. Further we find that there is no conflict in the stand in the appeal preferred by the State as well as the appeal of the SIT. Since, SIT has investigated into the matter keeping in view the above referred observation made by the Apex Court, if the leave is granted to SIT more particularly when the State appeal has also been admitted and the stand is common against the acquittal granted by learned Session Judge, it would be just and proper to grant leave to SIT. Hence, leave granted. Application disposed of accordingly."
5. In normal circumstances, the question of entertainment of the appeal preferred by the victim including leave to prefer appeal would have arisen in the light of the observations made by this Court in its judgment dated 10.5.2010 in Criminal Misc. Application No.5522 of 2009 in Criminal Appeal No.783 of 2010, but it does appear that from the peculiar circumstances in the present matter inasmuch as the trial so conducted by the learned Sessions Judge was a specified trial for which specific directions were issued by the Hon'ble Apex Court in the case of National Human Rights Commission v. State of Gujarat & Ors., reported in (2009) 6 SCC 767, wherein for this very trial, specific directions were issued by the Hon'ble Apex Court, we find that it would be just and proper to grant the leave to prefer appeal. Hence, leave granted. Applications are disposed of accordingly.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) (vipul) Top