1. The present Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure has been preferred by the applicant-original complainant-State of Gujarat to quash and set aside the impugned order dated 08/07/2011 passed by the learned Special Judge, Khambhalia below Exh. 201 in Special ACB Case No. 5/1990 by which the learned trial Court has rejected the said application submitted by the prosecution to adjourn the matter so as to enable the prosecution to examine P.W. No. 18-Taluka Development Officer, Khambhalia and/or responsible Officer from the office of TDO, Khambhalia.
2. The respondents-original accused is being prosecuted in Special ACB Case No. 5/1990 for the offence punishable under the provisions of the Prevention of Corruption Act as well as under the provisions of the Indian Penal Code. During the course of the trial, the learned Public Prosecutor submitted an application, Exh. 201 to adjourn the matter so as to enable the prosecution to examine P.W. No. 18 and/or any responsible Officer from the office of TDO, Khambhalia alongwith necessary documents. As there was already delay in concluding the trial and earlier despite sufficient time was granted while passing the orders below Exh. 189, 193 and 47, prosecution did not produce the witness for examination alongwith necessary documents, by the impugned order, the learned Special Judge, Khambhalia dismissed the said application. Being aggrieved and dissatisfied with the impugned order passed by the learned Special Court below Exh. 201 the applicant-State of Gujarat has preferred the present Criminal Revision Application.
3. Ms. C.M. Shah, learned APP appearing on behalf of the respondent-State has submitted that as such P.W. No. 18- responsible Officer from the office of the TDO, Khambhaliya is an important witness and is required to be examined alongwith necessary document to prove the charge against the respondents-original accused and, therefore, the learned trial Court ought to have granted atleast last chance so as to enable the prosecution to examine P.W. No. 18 alongwith necessary documents. It is submitted that the next date of hearing is on 27/09/2012 and on that day the prosecution shall see to it that P.W. 18 T.D.O, Khambhalia and/or any other responsible Officer from the office of the Taluka Development Officer, Khambhalia remains present before this Court alongwith necessary documents for recording the evidence and, therefore, it is requested to allow the present Criminal Revision Application.
4. Shri Dattani, learned advocate appearing on behalf of the respondents-original accused has submitted that as such sufficient opportunities have been given to the prosecution to examine P.W. No. 18 to produce necessary documents from the office of the TDO Khambhalia. However, the prosecution has failed to avail the same. It is submitted that in case this Court is inclined to give one opportunity to the applicant to examine PW No. 18 and to produce necessary documents one opportunity be given to the respondents-original accused to cross examine the said witness and liberty may be reserved, inclusive of the respondents, to cross examine P.W. No. 18.
5. Heard the learned advocates appearing on behalf of the respective parties at length. From the impugned order, it appears that the learned trial Court has dismissed the said application submitted by the prosecution, to adjourn the matter so as to enable him to examine P.W. No. 18-T.D.O. and/or any other responsible Officer from the office of the TDO, Khambhalia and to produce necessary documents, mainly on the ground that though sufficient opportunity has been given prosecution has failed to produce necessary documents and examine PW 18. Under normal circumstances, the learned trial Court would have been justified in passing the impugned order. However, considering the fact that respondents nos. 1 and 2-original accused are facing the trial for the offence under the provision of the Prevention of the Corruption Act and also under the Indian Penal Code, the learned trial Court ought to have given one last opportunity to the prosecution to examine PW NO. 18 and to produce necessary documents from the office of the TDO, Khambhaliya. Under the circumstances, this Court is of the opinion that one last opportunity should be given to the prosecution to examine P.W. 18 and/or any other responsible Officer from the office of the TDO, Khambhalia alongwith necessary documents. It is reported that the next date of hearing is 27/09/2012 and as agreed by the prosecution, the prosecution shall see to it that P.W. 18 and/or any other responsible Officer from the office of the T.D.O, Khambhalia alongwith necessary documents remains present before the learned trial Court for recording the evidence and it goes without saying that respondents nos. 1 and 2-original accused shall be permitted to cross examine P.W. 18.
6. In view of the above and for the reasons stated hereinabove, the present Criminal Revision Application succeeds. The impugned order passed by the learned Special Judge below Exh. 201 in Special ACB Case No. 5/1990 is hereby quashed and set aside and the application submitted by the prosecution is hereby granted and one last and additional opportunity to examine P.W. 18 alongwith necessary documents is given to the prosecution. On the next date of hearing i.e. 27/09/2012 P.W. 18 and/or any other responsible Officer from the office of the TDO, Khambhalia to remain present before the learned trial Court alongwith necessary documents for recording the evidence and the learned trial Court to record the deposition of P.W. 18 and/or any other responsible Officer from the office of TDO, Khambhalia. It will always be open for the respondents-original accused to cross examine the said witness and respondents nos. 1 and 2- original accused shall also be permitted to cross examine the said witness-P.W. 18.
7. With this, the present Criminal Revision Application is allowed. Rule is made absolute accordingly.
8. Registry is directed send the writ of this order to the learned trial Court immediately.
(M.R. SHAH, J.) siji