1. The present Criminal Revision Application has been preferred by the applicant-original accused no. 12 to quash and set aside the impugned order passed by the learned Additional Sessions Judge, Ahmedabad dated 27/04/2009 below Exh. 50 in Sessions Case No. 326/2008 by which on an application given by the prosecution to separate the trial for both the groups belonging to different communities, the learned Additional Sessions Judge, Ahmedabad vide order dated 27/04/2009 has allowed the said application directing to separate the trial for both the groups belonging to different communities and further directed the Registrar to separate Sessions Cases qua both the groups belonging to different communities and after separation of the trial charge to be amended accordingly.
2. Shri Budhbhatti, learned advocate appearing on behalf of the applicant-original accused no. 12 has stated that as such the order passed by the learned trial Court to separate the trial on the ground of religion i.e. on the ground that the accused persons belong to different communities is not permissible. It is further submitted that when a common FIR was filed and thereafter common chargesheet was filed with respect to the offence alleged to have been committed by the accused persons belonging to both the communities and when common evidence was collected, the learned trial Court has materially erred in separating the trial. Making the above submissions, it is requested to admit/allow the present Criminal Revision Application.
3. The present Criminal Revision Application is opposed by Shri J.M. Panchal, learned Special Public Prosecutor appearing on behalf of the State. It is submitted that as such the impugned order has been passed by the learned trial Court considering the decision of the Hon'ble Supreme Court in the case of Balbir Vs. State of Haryana reported in AIR 2000 SC 11 and considering the relevant provisions of Code of Criminal Procedure i.e. Sections 218 and 220 of the Code of Criminal Procedure, it is submitted that as such the learned trial Court has not passed an order to separate trial on the ground that the accused persons belong to different group of different communities. It is submitted that considering the fact that there was a different object and/or it cannot be said that there was a common object to commit the offence by both the groups belonging to different communities and, therefore, with a view to see that no injustice is caused to the victims as well as concerned persons, the learned trial Court has rightly passed the order to separate the trial. It is further submitted by Shri Panchal, learned Special Public Prosecutor appearing on behalf of the State that even after the impugned order was passed by the learned trial Court subsequently another learned Judge before whom the case was transferred made Reference to the High Court, being Criminal Reference No. 1/2010 by raising three questions and as such the learned Single Judge (Coram:- Hon'ble Mr. Justice Akhil Qureshi) answered the said Reference and even considered the impugned order passed by the learned trial Court on merits and has specifically observed that sufficient safeguard has been observed by the learned trial Court while passing the impugned order and, therefore, it is submitted that once the learned Single Judge has considered the impugned order on merits and when in the said order it is specifically observed that as such the accused persons have not challenged the impugned order and thereafter after disposing of the aforesaid Reference Application the present application has been preferred, the present application should not be entertained. It is further submitted that as such it has not been pointed on behalf of the applicant that by separate trial they are likely to be prejudiced. Under the circumstances, it is requested to dismiss the present Criminal Revision Application.
4. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned order passed by the learned trial Court as well as considered the facts and circumstances of the case. It appears that the impugned order has been passed by the learned trial Court considering the fact that there was no common object by both the groups, who are alleged to have been involved in the case and/or incident in question, which is post Godhra riot case and the object of both the groups belonging to different communities are different and, therefore, considering Section 223 of the Code of Criminal Procedure and considering the decision of the Hon'ble Supreme Court in the case of Balbir (Supra) the learned trial Court has thought it fit to pass an order to separate both the trials with respect to both the groups whose object of committing the offence are different. The learned trial Court has not passed the order to separate the trial on the ground that the accused persons belong to different communities, as sought to be contended on behalf of the applicant. As stated hereinabove, the learned trial Court has passed an order considering the different object to commit the offence by different groups. Under the circumstances, as such, no illegality has been committed by the learned trial Court in passing the impugned order even as rightly observed by the learned Single Judge while disposing of the Criminal Reference No. 1/2010 that sufficient safeguard has been provided by the learned trial Court while passing the impugned order. Even the learned advocate appearing on behalf of the applicant has also not pointed out any prejudice, which shall be caused to the accused persons if the trial is separated. On the contrary, considering the different object by different groups it will be in the interest of the concerned, inclusive of the victims, that the trial is separated.
5. Now so far as the contention on behalf of the applicant that as there was common FIR and thereafter there was common investigation and common chargesheet and, therefore, the trial cannot be separated is concerned, the same cannot be accepted. If, ultimately, it is found that there would be different offence (as explained by the Hon'ble Supreme Court in the case of Balbir (Supra)) by different groups/accused persons with different separate object, then also there is common FIR and/or investigation and still there can be a separate trial. Unless and until it is pointed out that by separate trial the accused persons are likely to be prejudiced the order to separate trial cannot be faulted. Ample opportunity will be given to the accused persons to cross examine the respective witnesses and to defend their case separately. By separate trial, the accused persons are not likely to be affected and/or they are not likely to be prejudiced. Hence, no illegality has been committed in passing the order of separating the trial. At this stage, it is required to be noted that as such the applicant-original accused earlier accepted the impugned order and only when the learned Single Judge observed in its order dated 07/02/2011 passed in Criminal Reference No. 1/2010 that none of the accused persons have challenged the impugned order and they have accepted the same only thereafter the present Criminal Revision Application has been preferred by only one of the accused. It is also required to be noted at this stage that even after the impugned order is passed by the learned trial Court, there is separate chargesheet filed by the Investigating Agency and at the time when the separate charges were to be framed at that stage the present Criminal Revision Application is preferred. Considering the above fact, the present Criminal Revision Application fails and is required to be dismissed and is accordingly dismissed. Notice is discharged.
(M.R. SHAH, J.) siji