1. As common question of law and facts arise in these group of applications they are disposed of by this common judgment and order.
1.1. Criminal Revision Application No. 513/2012 has been preferred by the applicants-original accused nos. 1 to 4 challenging the impugned judgment and order passed by the learned Additional Sessions Judge, Ahmedabad dated 09/08/2012 below Exh. 272 in Sessions Case No. 100/2010 by which the learned Sessions Court has rejected the said application submitted by the applicants-original accused nos. 1 to 4 to examine the persons/witnesses mentioned in the said application.
1.2. Criminal Revision Application No. 514/2012 has been preferred by the applicants-original accused nos. 1 to 4 to quash and set aside the impugned judgment and order dated 09/08/2012 passed by the learned Additional Sessions Judge, Ahmedabad below Exh. 271 in Sessions Case No. 100/2010 by which the learned Judge has rejected the said application submitted by the applicants-original accused nos. 1 to 4 to examine the persons/witnesses mentioned in the said application as defense witnesses except one Dr. J.B. Shah.
3. At the outset, it is required to be noted that earlier similar applications were submitted by the very applicants- original accused nos. 1 to 4, being Exhs. 251 and 229 with a request to examine those witnesses mentioned in the application as defense witnesses, which came to be allowed and the learned Additional Sessions Judge, Court No. 8, Ahmedabad vide order dated 28/12/2011 allowed the application, Exh. 251 allowing the witnesses to be examined as defenses witnesses for the defense of alibi on the grounds stated in the said application. The order passed by the learned Additional Sessions Judge, Court No. 8, Ahmedabad dated 28/12/2011 below Exh. 251 allowing the witnesses to be examined as defense witnesses came to be challenged by the State/prosecution before this Court, bring Criminal Revision Application No. 39/2012 and the learned Single Judge vide order dated 11/05/2012 has allowed the said Criminal Revision Application permitting Dr. J.B. Shah only to be examined as Court witnesses. Thereafter, without challenging the aforesaid judgment and order passed by this Court passed in Criminal Revision Application No. 39/2012 quashing and setting aside the judgment and order passed by the learned Additional Sessions Judge, Court No. 8 Ahmedabad dated 28/12/2011 allowing the witnesses to be examined as defense witnesses and permitting the prosecution to examine one Dr. J.B. Shah as Court witness and rejecting other applications of the accused persons to examine other witnesses as Court witnesses/defense witnesses, the applicants-original accused nos. 1 to 4 again preferred applications, being Exhs. 271 and 272, which came to be disallowed by the learned Sessions Court in view of the judgment and order passed by this Court in Criminal Revision Application No. 39/2012. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Additional Sessions Judge, Ahmedabad below Exhs. 271 and 272 in not entertaining the said applications, in view of the judgment and order passed by this Court in Criminal Revision Application No. 39/2012, the applicants- original accused nos. 1 to 4 have preferred the present Criminal Revision Applications.
4. Shri Gupta, learned advocate appearing on behalf of the applicants-original accused nos. 1 to 4 has vehemently submitted that the learned Single Judge while delivering the judgment and order in Criminal Revision Application No. 39/2012 and while considering the order passed by the learned Sessions Judge below Exhs. 229 and 251 has not properly dealt with and/or considered other decisions of the Hon'ble Supreme Court on the right of the accused either to examine the witness as defense witness and/or to examine those witness as Court witnesses and, therefore, it is submitted that the learned Sessions Judge ought to have considered the applications, Exh. 271 and 272 on merits and has materially erred in not entertaining the said applications. Shri Gupta, learned advocate appearing on behalf of the applicants has relied upon the following decisions:
(i) Jamatraj Kewalji Govani Vs. State of Maharashtra reported in AIR 1968 SC 178;
(ii) Raghunandan Vs. State of U.P. reported in 1974 CAR 79 (SC);
(iii) Iddar and Ors. Vs. Aabida and Anr. reported in AIR 2007 SC 3029;
(iv) Prakashkumar Prahladbhai Vs District Primary Education Officer reported in 2000 (3) GLR 2468;
(v) Ramanlal Madhavlal Kharva Vs. State of Gujarat & Ors. reported in 1972 GLR 914;
(vi) Ronald Wood Mathams and Ors. Vs. State of W.B.
reported in AIR 1954 SC 455;
(vii) Kalyani Baskar Vs. M.S. Sampoornam reported in (2007) 1 SCC (Cri.) 577;
(viii) T.N. Janardhanan Pillai Vs. State reported in 1992 CRI. L.J. 436;
(ix) Parameswara Kurup Janardhanan Pillai Vs. State of Kerala reported in 1982 CRI. L.J. 899
4.1. Relying upon the above decisions of the Hon'ble Supreme Court and this Court it is requested to refer the matter to the Division Bench/Larger Bench by submitting that valuable right of the accused has been taken away by the judgment of the learned Single Judge while delivering the judgment and order passed in Criminal Revision Application No. 39/2012.
4.2. In support of the above prayer to refer the matter to the Division Bench and/or Larger Bench, Shri Gupta, learned advocate appearing on behalf of the applicants has relied upon the recent decision of the Hon'ble Supreme Court in the case of Gian Singh Vs. State of Punjab reported in JT 2012 SC 426. It is submitted in the aforesaid decision the three Judge Bench of the Supreme Court was considering the issue referred considering the earlier decisions. It is submitted that even in reference to the Larger Bench before the Hon'ble Supreme Court reference was made to the Larger Bench by the Bench consisting of the learned Judge who was party to the earlier decision and, therefore, it is requested to refer the matter to the Division Bench and/or Larger Bench. Making above submissions, it is requested to either consider the case on merits and consider the prayer of the applicants to examine the witness mentioned in the application, being Exhs. 271 and 272 as court witnesses/defense witnesses and/or refer the matter to the Division Bench and/or Larger Bench.
5. The present applications are opposed by Ms. C.M. Shah as well as Shri L.R. Poojari, learned APPs appearing on behalf of the respondent-State. It is submitted that as such the issue, which has been raised in the present Criminal Revision Applications, is already concluded by the learned Single Judge while considering Criminal Revision Application No. 39/2012 and the very prayer of the applicants to examine the witnesses mentioned in the said applications either as court witnesses/defense witnesses have been negatived by this Court and, therefore, as such the learned trial Court has not committed any error and/or illegality in not entertaining the present applications raising the same issue, which was earlier considered by the learned Single Judge and negatived by the learned Single Judge.
5.1. Now so far as the request made by the learned advocate appearing on behalf of the applicants to refer the matter to the Division Bench/Larger Bench is concerned, it is submitted that the aforesaid cannot be granted. It is submitted that the only remedy available to the applicants would be to approach the Hon'ble Supreme Court against the decision of the learned Single Judge. It is submitted that the matter can be referred to the Division Bench and/or Larger Bench only if the similar issue is raised in another case and not between the same parties and in the same case. It is submitted that therefore the decision relied upon by the Hon'ble Supreme Court in the case of Gian Singh (Supra) would not be applicable to the facts of the present case.
6. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that by the applications, being Exhs. 271 and 272, the applicants requested to examine the witnesses mentioned in the said application as court witnesses/defense witnesses, except Dr. J.B. Shah and the said applications have been rejected by the learned Additional Sessions Judge in view of the earlier decision of this Court in Criminal Revision Application No. 39/2012 by which a similar prayer made by the very applicants to examine the witness mentioned in the application as defense witnesses/court witnesses came to be rejected, except Dr. J.B. Shah. Under the circumstances, when similar request was made again, which was considered by the learned Single Judge earlier and not granted, the learned Additional Sessions Judge, being a subordinate court, is absolutely justified in not entertaining the fresh applications on the same subject. If, the learned Additional Sessions Judge would have entertained the present applications again it can be said that the learned Additional Sessions Judge has tried to overreach the order passed by this Court passed in Criminal Revision Application No. 39/2012. Under the circumstances, no fault can be found with the learned Additional Sessions Judge in not entertaining the applications, Exh. 271 and 272.
6.1. Now so far as the request made by Shri Gupta, learned advocate appearing on behalf of the applicants to consider his request made in the applications, Exh. 271 and 272 on merits and to consider the request of the applicants to examine those witnesses as court witnesses/defense witnesses and/or in the alternative to refer the matter to the Division Bench/Larger Bench is concerned, the aforesaid cannot be granted. As such, the order passed by the learned Single Judge in Criminal Revision Application No. 39/2012 is binding to this Court. The only remedy available to the applicants would be to challenge the order passed by the learned Single Judge in Criminal Revision Application No. 39/2012 before Hon'ble the Supreme Court. This Court, as a Single Judge, cannot comment and/or consider the legality and validity of the order passed by another learned Single Judge, as coordinate Bench. This Court also cannot refer the matter to the Division Bench/Larger Bench as the decision of the learned Single Judge is between the same parties and in the same case. The question with respect to referring the matter to the Division Bench/Larger Bench can be considered if at all a similar issue is raised in another case and this Court is not agreeable with the view taken by the learned Single Judge, and then and then only the Court can refer the matter to the Division Bench/Larger Bench. However, if the issue is concluded between the parties in the same case by coordinate Bench, raising the similar issue again it is not permissible/proper to request to refer the matter to the Division Bench/Larger Bench and this Court cannot consider such prayer.
7. In view of the above and for the reasons stated hereinabove, both the Criminal Revision Applications require to be dismissed and are accordingly dismissed. However, it will always be open for the applicants to challenge the decision of learned Single Judge passed in Criminal Revision Application Nos. 39/2012 and 69/2012 before higher forum/Hon'ble the Supreme Court, if they so choose.
(M.R. SHAH, J.) siji