1. Heard, learned advocate for the applicant. The applicant, who happens to be the informant in respect of the crime, which has been tried under Sessions Case No.81 of 2011 in the Court of learned Second Additional Sessions Judge, Mehsana, has approached this Court by way of this application with the following prayers.
(a) Admit and allow this Special Criminal Application.
(b) This Hon ble Court may be pleased to issue appropriate writ or order or direction in the nature of writ and be pleased to quash and set aside the order passed below Exhibit-86 dated 24/10/2012 and further be pleased to allow the application below Exhibit-86 as prayed for in the interest of justice.
(c) Pending admission, hearing and till final disposal of this petition be pleased to stay the further proceeding of Session Case No.123 of 2011 pending before the Learned Additional Sessions Judge, Mehsana.
(d) Pending admission, hearing and till final disposal of this petition be pleased to stay the operation, implementation and execution of order passed below Exhibit-86 dated 23/10/2012 in the interest of justice.
(a) Grant such other and further relief as deemed fit and just in the facts and circumstances of the case.
Thus, what is essentially under challenge is the order dated 23/10/2012, whereunder the concerned Sessions Court on recording the reasons for rejecting the application, has rejected the application. The reasons recorded for the rejection of the application said that though the order was made for sending fire arm to the F.S.L. way back on 30/08/2012, there was an unexplained delay on the part of the Investigating Agency in collecting the arm from the Court and the accused were in custody, which is the result of unnecessary prolonging the trial. Learned advocate for the applicant contended that on account of the inaction and/or lack of vigilance on the part of the Investigating Agency, the case may not be in any manner permitted to be weakened as the earlier orders in respect of the fire pin and it s impact vis-a-vis the two empty cartridges not found to be from the said fire arm, would damage the case of the prosecution irreparable.
2. The Court is not impressed by this submission at all. Fact remains to be noted that the complainant though was permitted to assist through APP, has also not chosen to move the Court immediately as complainant was aware about this order, which was passed on 23/10/2012 and he had moved the Court only in the month of March - 2013. The reasoning adopted by the Court indicate that the said reasoning cannot be said to be wholly erroneous, as the Court has to strike a balance between the case of the prosecution as well as the defence and the inordinate or avoidable delay has a result of prolonging the trial when accused were not enlarged on bail. Meaning thereby the inaction and/or lack of vigilance on the part of the Police Officer concerned has resulted into prolonging the trial and for these reasons, the application is rejected.
3. The complainant in my view has no right to approach the Court in this way as even complainant has indicated lack of urgency on his part had he been really concerned, there would have been prompt action in bringing appropriate orders in appropriate manner. Nothing prevented applicant to approach the concerned authorities for seeking appropriate direction. Hence, this application is meritless and is required to be dismissed.
4. The Court cannot take a partition view in any manner as the Court was approached in very casual manner by the Police Officer without any explanation as to why two months time has gone by, therefore, when the Sessions Court comes to the conclusion that inordinate delay is occurred, which has prejudiced the accused and resulted into prolonging the custody incarceration, the said reasoning cannot be said to be illegal or erroneous. Therefore, this application is rejected.
5. However, the Court is of the considered view that this rejection would not prevent the prosecution in putting-up an application explaining the time taken in obtaining the custody of the fire arms and if such an application is put-up, the same shall be considered by the Court and decide on merits, without being influenced by its earlier order, as the earlier order is of rejection of the application for fire arms. With these observations, the present application is dismissed.
(S.R.BRAHMBHATT, J.) Rathod...
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