Gujarat High Court
Saiyed Mehmood Hussein Mullaji vs State Of on 23 September, 2013
Author: S.G.Shah
Bench: S.G.Shah
SAIYED MEHMOOD HUSSEIN MULLAJI....Applicant(s)V/SSTATE OF GUJARAT....Respondent(s) R/CR.RA/169/2010 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 169 of 2010 With CRIMINAL MISC.APPLICATION NO. 14306 of 2010 In CRIMINAL REVISION APPLICATION NO. 169 of 2010 With CRIMINAL MISC.APPLICATION NO. 11493 of 2013 In CRIMINAL REVISION APPLICATION NO. 169 of 2010 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ SAIYED MEHMOOD HUSSEIN MULLAJI....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ================================================================ Appearance:
Criminal Revision Application No.169 of 2010 MR MM TIRMIZI, ADVOCATE for the Applicant(s) No. 1 MS MOXA THAKKAR, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1 Criminal Misc.Application No.14306 of 2010 (For Joining Party) MR UTPAL M PANCHAL, ADVOCATE for the Applicant(s) MR MM TIRMIZI for Respondent No.1 MS MOXA THAKKAR, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 2 Criminal Misc.Application No.11493 (For Regular Bail) MR UTPAL M PANCHAL, ADVOCATE for the Applicant(s) MR MM TIRMIZI for Respondent No.1 MS MOXA THAKKAR, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 2 ================================================================ CORAM:
HONOURABLE MR.JUSTICE S.G.SHAH Date : 23/09/2013 CAV JUDGMENT Heard learned advocate Mr.M.M.Tirmizi for the petitioner in Criminal Revision Application and respondent No.1 in both the Criminal Misc.Applications, Mr.Utpal M.Panchal for the accused, who has preferred Criminal Misc.Application No.14306 of 2010 to join him a respondent as well as Criminal Misc.Application No.11493 of 2013 for regular bail and learned APP Ms.Moxa Thakkar for respondent State in all the matters.
2. Petitioner herein is original complainant. One F.I.R being C.R No.I-5 of 2009 was filed with Kosamba police station for the offences punishable u/ss.302 and 324 of the IPC r/w.Section 135 of the Bombay Police Act on 15.1.2009. It is alleged in such F.I.R that one Hassankhan @ Hassan Boss Hussainkhan Pathan had given fatal blow to victim Nasir Chand Saiyed, which resulted into death of Nasir Chand Saiyed during the treatment. It is alleged by the petitioner complainant that though the name of other accused were disclosed during investigation before the police and though victim himself has stated in an interview taken by a TV Channel, disclosing that four persons have assaulted him, police has filed chargesheet only against one person, namely, Hassankhan @ Hassan Boss Hussainkhan Pathan. It is further stated that complainant and his family members have given categorical statement to the investigating agency and given in writing to several authorities about the presence of other persons, namely, Taslim Hussain Pathan, Salim and Asif and their role of beating the victim at the relevant time. However, since police has filed chargesheet only against one person, during trial complainant and witnesses have categorically deposed before the Sessions Court about the involvement of aforesaid additional three persons with their role in the commission of an offence.
3. Relying upon such evidence, applicant complainant has by an application at Exh.13 in Sessions Case No.99 of 2009 before the District & Sessions Judge, Surat applied for reinvestigation u/s.173(8) of the Cr.P.C.
4. The learned Sessions Judge has after hearing the learned advocate for the complainant, by his detailed judgment and order dated 11.2.2010, dismissed the application. While deciding such application, the learned Sessions Judge has disclosed relevant arguments adduced by the complainant and also considered the citations referred by the complainant for coming to the conclusion that relying upon the news released by the news channel and only upon the police statement or deposition of complainant, the trial Court cannot order or direct the investigating agency to re-investigate the case so as to verify that whether particular person was also involved in the commission of crime and thereby to file a chargesheet against him. Though the allegation against the investigating officer was taken care by the trial Court, the trial Court has come to the conclusion that without recording the evidence that may be submitted by the prosecution with chargesheet, a TV interview cannot be treated as dying declaration, more particularly without it being proved on record or without any corroborated evidence. The trial Court has noted that neither police nor the Doctor has recorded the dying declaration of the victim. Therefore, trial Court is of the opinion that relying upon the available material on record, it is not permissible to pass an order to re-investigate the case, but at the most considering the injuries and other evidence on record, once prosecution completes its evidence, complainant or prosecution may ask for adding any other person as an accused u/s.319 of the Code of Criminal Procedure, if there is sufficient evidence against such person and in that case, such person can be tried in accordance with law.
5. Thereby, the trial Court has recorded that till the date of passing such impugned order, entire evidence is not recorded and, therefore, after adducing full evidence, matter can be considered for adding other persons as an accused u/s.319, but once trial is started, order of re-investigation cannot be passed.
6. As against that learned advocate for the petitioner has vehemently argued on several factual details and relied upon several judgments submitting that further investigation is permissible under the law and that even police is entitled to conduct further inquiry and investigation and to file additional chargesheet. It is also contended that considering the available record when name of other persons are disclosed, practically the duty of the I.O. and the Court is to arrive at the truth rather than to defeat the justice on the technical ground and, therefore, such application should be allowed by directing the police to investigate further against such additional accused and thereby application at Exh.13 shall be allowed by quashing the impugned order.
7. So far as observations by the trial Court regarding provision of Section 319 are concerned, it is contended that scope u/s.319 has limited scope and now in pursuance to the judgment in the case of Vikas Vs. State of Rajasthan dated 16.08.2013 in Criminal Appeal No.1190 of 2013 by the Apex Court, when non-bailable warrant could not be issued to such proposed accused, and when names are already disclosed during the investigation, there is no reason to apply u/s.319 for adding additional accused. It is also contended that practically for further investigation, permission of the Court is necessary.
8. Petitioner is relying upon judgment reported in 2005(2) GLH 7 - Sheikh Madinabibi Mustafabhai Vs. State of Gujarat , AIR 2004 SCW 2063 -
Hasanbhai Valibhai Qureshi Vs. State of Gujarat & Ors. and (2013)5 SCC 762 - Vinay Tyagi Vs. Irshad Ali Alias Deepak and Others. However, all such judgments are distinguishable on facts and circumstances with the present case.
9. As against that, learned APP Ms.Moxa Thakkar supports the reasons by the learned Sessions Judge stating that after evidence is available on record, complainant can apply u/s.319 for joining such person as an additional accused, but there cannot be direction for further investigation or re-investigation. She also relies upon (2013)5 SCC 129 - Reeta Nag Vs. State of West Bengal & Ors.
10. Learned advocate Mr.Utpal Panchal appearing for accused is also heard for his application to join original accused as respondent herein. He also supports the order of the Sessions Court and objecting to decide the revision application without joining him as a party respondent.
11. Before discussing merits of the case, so as to determine and conclude the issue, one glaring position needs to be recollected here. It is not disputed that present petitioner is complainant who has filed an application for adding additional accused only on 22.1.2010 i.e. after recording of evidence of several witnesses. Such application was though decided at the earliest i.e. on 11.2.2010, such order was challenged in the present revision application which is filed in the month of March, 2010 wherein order to issue notice is dated 30.3.2010 and by an order dated 22.4.2010, proceedings of Sessions Case No.99 of 2009 was stayed. Such stay is in operation till date. In between revision application was admitted on 16.7.2010 with a direction that interim relief shall continue. Record also shows that pursuant to such development, original accused Hassankhan @ Hassan Boss Hussainkhan Pathan has preferred different Criminal Misc.Applications for joining him as respondent in this revision application and to enlarge him on bail. By an order dated 1.12.2010 in Criminal Misc.Application No.14306 of 2010, this High Court has directed to notify the main revision for final hearing with such application for joining original accused as respondent considering that trial is stayed. However, since the revision was not heard for two years, similar request was made in Criminal Misc.Application No.1506 of 2012 which is also disposed of with almost similar direction by judgment and order dated 14.9.2012. Thereafter, since revision was not heard for further one year, original accused has applied for bail by filing Criminal Misc.Application (for regular bail) No.5351 of 2013 which was also dismissed with a direction to fix the revision application for final hearing on 2.5.2013. When matter could not be decided on 2.5.2013, original accused has again filed another Criminal Misc.Application (for regular bail) No.11493 of 2013 either for releasing him on bail or to fix the revision application for final hearing and decide the same at the earliest. Pursuant to order in such application on 10.9.2013, this Court has taken up this matter for final hearing. Thereby, the fact remains that since January, 2009, original accused is in jail.
12. So far as prayer by the original accused to join him as accused is concerned, it is argued by the learned advocate for the petitioner that he is not a necessary party inasmuch as he is already an accused in the case and that the prayer is to join other culprit as an accused.
13. However, it cannot be ignored that all other persons who are requested to be joined as an accused by the complainant are none but brother and family members of the original accused. So far as factual merits are concerned, the fact remains that after lodging a complaint and after investigation, not only chargesheet is filed, but so many witnesses are already examined before the trial Court. Therefore, practically, now, stage for further investigation or reinvestigation by police is lacking, even if it exists, inasmuch as, now, the matter is sub judice before the Court and it is for the Court to decide as to who has committed the offence. Therefore, if after evaluating the available evidence on record, the Court comes to the conclusion that there are some other culprits in addition to the accused who are being tried by the Court, the Court can at any time before delivering the judgment add any person as an accused as provided in Section 319 of the Cr.P.C. Though, the investigating agency is free on its own to file an additional chargesheet or further report based upon any further development with reference to the offence or the culprits, so far as direction or order regarding reinvestigation or further investigation is concerned, once chargesheet is filed, practically, it would be out of scope for the Court to order reinvestigation or further investigate the matter, unless from the chargesheet filed by the investigating officer, the Court finds that it needs further investigation before proceeding with the trial, either for confirming evidence or for confirming culprit. But, in a given case when commission of an offence and culprit are disclosed by the investigating agency, prima facie, the Court has to believe such evidence unless it is rebutted and for passing any further order, either for reinvestigation or further investigation, there must be some cogent reasons and evidence before the Court.
Whereas in the present case, the stage for direction of further investigation has gone inasmuch as the complainant, has failed to initiate any proceeding immediately on filing chargesheet by the police disclosing that there are other culprits whose names are already stated by witnesses during investigation. Thereafter, evidence of many witnesses are recorded by the trial Court and, therefore, now, trial Court has in possession of evidence in the form of deposition by the witnesses. In view of such situation, it would be certainly appropriate to initiate the proceeding u/s.319 rather than Section 173(8) for further investigation.
14. The grievance of the petitioner is to the effect that though petitioner has disclosed the involvement of some more persons in commission of crime, the police has selectively dropped them and did not file chargesheet against them. In that case, it would be appropriate for the petitioner to call for the original police diary and to verify that what steps the investigating agency has taken to inquire about the actual role and involvement of such persons against whom chargesheet is not filed, but whose names are disclosed on record during investigation either by the complainant or by any other witness or by any other evidence including the circumstantial evidence. In such case, if it is found that investigating agency has extended undue benefit or advantage to any such person by not filing chargesheet against him even after his name has been disclosed for committing any offence or for abetting any offence, then in that case, it would be appropriate for the trial Court either to pass an order for further inquiry u/s.173(8) through superior officer than the investigating officer. If such evidence is produced on record before the trial Court, then trial Court may u/s.319 of the Code also add such person as additional accused and may allow him to take part in the proceeding which is pending before it by allowing him to cross-examine the concerned witness or all the witnesses so far as involvement of such additional accused are concerned before deciding the matter finally. The trial Court may also separate the charge against such newly added accused and the accused against whom chargesheet is also filed and trial is completed, allowing the prosecution to prove the case against said newly added accused. So far as grievance regarding restriction to issue non-bailable warrant against such newly added accused are concerned, considering the latest judgment of the Apex Court in Vikas s case (supra), now, such case is to be treated like summons case against additional accused. Even in that case, arrest of such newly added petitioner may not be necessary considering the fact that otherwise also, they are not arrested at the time of filing FIR and when they are free for long time, whatever damage they could have done either to the investigation or to the witnesses, would have been done. However, for securing presence of such additional accused before the Court and for protecting victim and witnesses from such additional accused, the trial Court can certainly pass appropriate orders and in case of breach of such order or evidence regarding disturbance with the witnesses or evidence, the trial Court may pass appropriate order. Therefore, when evidence is recorded after filing of the chargesheet, it would be appropriate for the complainant to adduce the full evidence so as to prove the involvement of any other person to enable the Court to pass appropriate order u/s.319 of the Code.
15. The petitioner is relying upon following cases (1) Sheikh Madinabibi Mustafabhai Vs. State of Gujarat reported in 2005(2) GLH 7 which simply confirms that original complainant has locus standi to prefer revision when it is necessary to prevent miscarriage of justice, when the trial Court has rejected the application for re-examination of certain witnesses filed by the complainant and supported by the learned APP.
Whereas in the present case, practically, complainant is challenging the locus standi of accused to defend such revision and, hence, when revision of the complainant is admitted before three years and pending for final hearing for last three years, though original accused is not released on bail either by the trial Court or by this Court till date and when application has not joined the original accused as respondent in this revision, reference to such cited case has no relevance at present.
(2) Hasanbhai Valibhai Qureshi Vs. State of Gujarat & Ors.
reported in AIR 2004 SC 2078 is equal to AIR 2004 SCW 2063 wherein the Apex Court has considered that further investigation cannot be ruled out merely on grounds that it may delay the trial. It is further confirmed that even after Court takes cognizance of offence on earlier report submitted by police, it is open for the police to conduct further investigation in proper manner. It is further stated that police should seek permission of Court for further investigation if fresh facts are coming to light.
Though such decision confirms the right of reinvestigation, even if it results into delay in trial, in the present case when trial Court has not considered the issue regarding delay in trial, practically this citation is also not helpful to the applicant. However, on the contrary, the factual details shows that delay, if any, is because of the present revision application filed by the complainant. The settled legal position is quite clear that the person who is responsible for delay shall not take disadvantage of such delay. In the present case, it seems that complainant himself is not interested in completing the trial at the earliest because respondent accused is not released on bail by any Court.
(3) Vinay Tyagi Vs. Irshad Ali Alias Deepak and Others reported in (2013)5 SCC 762, the Apex Court has considered the entire procedure regarding investigation and trial under the Cr.P.C. in detail confirming that investigation and trial should be fair. However, though it has been discussed at length and though it has been confirmed that Court has ample power to direct the investigating agency for further investigation, the sum and substance of the judgment is to the effect that the trial Court has to consider the entire record including the chargesheet filed by the police along with the documents and, thereafter, trial Court has three options (1) discharging the accused in absence of any evidence against the accused; (2) proceeding with the trial in accordance with law and (3) which is material for present is to the effect that, if the trial Court is dissatisfied on any important aspect of investigation already conducted and in its considered opinion, if it is just, proper and necessary in the interest of justice to direct further investigation , it may do so. It is also confirmed that neither investigating agency has power to conduct nor Magistrate has power to direct fresh/de novo investigation/re-investigation, but only higher judiciary in exercise of extra-ordinary or inherent jurisdiction has power to direct fresh/de novo investigation/re-investigation by same or any other specialized agency. Fresh/de novo investigation/re-investigation should be directed by superior Courts sparingly and only in exceptional cases where investigation so conducted is unfair, tainted, malafide and in violation of settled principles of investigative canons that it pricks judicial conscience of Court. While passing such order, Court should record reasons that why previous investigation is incapable of being agreed upon. Referring the case of Bhagwant Singh Vs. Commissioner of Police reported in (1985)2 SCC 537, the Apex Court has reiterated that Magistrate has suo motu jurisdiction to direct the investigation after filing of police report whereas investigating agency has to seek prior leave of the Court to conduct further investigation and to file supplementary report.
However, it is also made clear referring Section 173(8), 228 and 482 of the Cr.P.C. that after filing of chargesheet, even Supreme Court would not ordinarily interfere with the investigation, but in appropriate case when Court feels that investigation is not proceeding in proper direction, it can direct transfer of investigation, but such power should be exercised sparingly to do justice where facts demand and not otherwise.
Therefore, though the Apex Court has dealt with the subject in full depth and though power of re-investigation has been confirmed, considering the entire judgment, it cannot be said that only because petitioner has prayed for, Court shall direct the re-investigation. To that extent, original accused is also relying upon the same judgment.
Petitioner has also relied upon one unreported recent judgment in Criminal Appeal No.1190 of 2013 between Vikas Vs. State of Rajasthan, wherein the Apex Court has considered the fact of order u/s.319 for adding additional accused in the pending trial and confirmed that by an order u/s.319 of the Code, to add some additional person as additional accused in the pending trial though such additional person are to be dealt with as a accused and shall be treated and shall be tried, while passing order u/s.319 of the Cr.P.C., warrant cannot be issued, only summons can be issued upon such additional accused. Such judgment is cited by the petitioner with a submission that now in view of such judgment, Court cannot issue warrant against persons whom he has prayed to join as accused and, therefore, order u/s.319 of the Code is not warranted, since arrest of the additional accused is necessary.
Such submission of the petitioner may be because of the observation by the Sessions Judge in impugned order wherein it is stated in paragraph 11 that if necessary Court can pass necessary order u/s.319 of the Code and thereby re-investigation was refused.
16. As against that learned APP has supported the judgment of the trial Court by reading out and relying upon paragraph 11 of the impugned judgment. Perusal of such observation and decision by the Sessions Court, it becomes clear that Sessions Court has refused to allow the application for re-investigation mainly on the ground that if petitioner wants to confirm the presence of other accused at the time of commission of offence, then petitioner complainant can apply u/s.319 of the Code for adding such accused as additional accused, but when evidence of certain witnesses are yet to be recorded, the real picture can be considered only after completion of such evidence and that only interview of victim as news-item, may be with the clipping of the victim, cannot be relied upon for re-investigation. In short, the Sessions Court has categorically observed that involvement of other accused can be considered and may be confirmed only after completion of evidence. There is substance in such concept and argument of learned APP.
17. Pending the revision, original accused has filed application to join him as respondent and by an order dated 14.09.2012 in Criminal Misc.Application No.1506 of 2012 it was observed that such application for joining party shall be considered with main revision and, therefore, before concluding on merits, learned advocate for the accused, namely, Mr.Utpal Panchal was called upon to submit his case in addition to his argument regarding reason for allowing him to join and thereby to participate in the criminal revision application as a respondent, Mr.Utpal Panchal has submitted that incident had taken place on 15.1.2009 and while lodging a complaint on the very same day, name of present accused only was disclosed and, therefore, story regarding involvement of other person who are family members of the accused is nothing but afterthought with a view to harass the entire family. It is submitted that FIR is dated 15.1.2009 whereas additional names are disclosed only on 18.1.2009 and interview before TV Channel was on 21.1.2009. Thereby, he submits that, practically, complainant has initiated proceedings to add other persons as additional accused is mainly with a view to harass respondent accused so as to see that he remains behind the bar for a long period and to harass his family members.
18. The proposed respondent being original accused is relying upon the case of Reeta Nag Vs. State of West Bengal & Ors. reported in (2009)9 SCC 129 wherein it is categorically held that after referring several cases that once chargesheet is filed u/s.173(2) of the Cr.P.C., Magistrate may though entitle to permit the investigating authority for further investigation u/s.173(8) of the Cr.P.C., the Magistrate cannot suo motu direct the further investigation u/s.173(8) of the Cr.P.C. Or direct re-investigation into a case on account of bar of Section 167(2) of the Cr.P.C. On the contrary, it was categorically held by the Apex Court that the other course of action open to the Magistrate, was to take recourse to the provisions of Section 319 of the Code at the stage of trial. Therefore, when Supreme Court has confirmed such stand observing that it will always be possible for the Magistrate to take recourse to the provisions of Section 319 if any material is disclosed during the examination of the witnesses during the trial, re-investigation cannot be directed.
19. It cannot be ignored that when prosecution is supporting the order of the trial Court, the investigating agency may not rely upon prima facie evidence during investigation, as it has not taken care while filing the chargesheet and, therefore, the investigating agency may not investigate the issue properly. Thus, it would be appropriate for the complainant and the trial Court to rely upon the provision of Section 319 of the Code and to add additional accused, if evidence on record so permits.
20. On perusal of available record and considering the rival submissions, it becomes clear that incident had taken place on 15.1.2009, when only one person was shown as an offender and against whom chargesheet was filed and trial has been initiated. During investigation, name of certain more persons was disclosed only after three days i.e. on 18.1.2009 whereas only on 21.1.2009 victim has also stated about involvement of some other persons, however, without disclosing the name of any other person. After 2009, chargesheet was filed and trial was started, thereby evidence of certain witnesses was recorded and it was only on 22.4.2010, this Court (Coram: Hon ble Mr.Justice Anant S.Dave) has stayed further proceeding of the case because the trial Court had on 11.2.2010 rejected an application dated 22.1.2010 at Exh.13 u/s.173(8) for re-investigation. The impugned order is dated 11.2.2010. Thereby, since 2009, original accused is behind the bar and petitioner has never bothered to ask for re-investigation from January, 2009 till January, 2010.
21. On perusal of available record, however, it is also certain that though names of the other accused are not disclosed in the FIR, names of some other persons are disclosed in statements of some of the witnesses, namely, Mehboob Chand Saiyed and Hamid @ Hamu Mehmud Saiyed as well as Firozmiya Ahmedmiya Saiyed. However, all such statements are of 18.1.2009 whereas petitioner s reliance is on injury certificate stating that even to Doctor, the victim has given the name of Taslim Hussain Pathan which is in addition to the present accused. However, police has not filed chargesheet against Taslim Hussain Pathan.
22. However, the fact remains that the petitioner has failed to initiate the proceedings u/s.173(8) of the Cr.P.C. at the earliest and now when so many witnesses are examined and when trial Court has also kept the issue of joining such person as additional accused even u/s.319 of the Code after recording of evidence, I do not see any illegality or irregularity in such order so as to interfere with the same and to direct for further investigation by the police. It cannot be ignored that irrespective of necessity of further investigation, the desire of the petitioner is to see that other persons, whose name is disclosed by the complainant as additional accused are none, but the family members of the original accused. It is also to be noted that, as confirmed by the Apex Court in the case of Vinay Tyagi (supra), order of re-investigation is to be passed sparingly and when trial Court has categorically observed that addition of person as additional accused can be considered after recording of evidence, I do not see any reason to interfere with said order. So far as desire of the petitioner is concerned to see that additional persons are arrested, it goes without saying that only because of the desire of the complainant to arrest some additional persons, there cannot be an order of re-investigation though issue of bailable warrant has been now restricted by the decision in Vikas (supra). On the contrary, such desire discloses the reason for filing such application and revision for joining additional accused. Therefore, though petitioner has no case so as to interfere with the impugned order regarding refusal of further investigation, considering the overall record, when there is prima facie evidence against involvement of some other persons, it would be appropriate to release this matter at the earliest since there is stay against the trial with a direction to the trial Court to complete the trial at the earliest and to consider the evidence with reference to Section 319 of the Code for adding of such other persons as additional accused in accordance with law. It is made clear that for doing so, the rejection of Exh.13 application regarding request of further investigation and dismissal of present revision as well as any observation on merits in present revision, shall not preclude the trial Court to take appropriate decision for joining any other person as additional accused u/s.319 of the Code. For such reason, it would be necessary to avoid further discussion on factual details, which may otherwise prejudice either side both during the trial and at the time of considering of joining such other persons as additional accused.
23. While considering the involvement and necessity to join additioanl accused after completion of evidence, trial Court is free to call for the police diary and to verify that what steps/investigation the investigating agency has carried out, for confirming the involvement of such other accused, if their names were cropped-up during investigation, why they are not included in the chargesheet as accused.
24. Though in several cases, there are orders of re-investigation, only because of such cited cases, there cannot be an order of re-investigation and further investigation in each and every case. While passing an order of further or re-investigation several aspects are required to be considered viz. Intention of the complainant, disclosure of name and evidence against such additional persons as well as activities by the investigating agencies when there is allegation against it to help the accused. However, it would be for the trial Court to verify such issues since the trial Court is in position to verify the veracity of the witnesses and other materials, but in revisional jurisdiction, when the trial Court has not put a complete ban or end on the issue of joining additional persons as additional accused, by stating that it may be considered after recording of evidence, there is no reason to interfere with the impugned order.
25. In view of above facts, circumstances and discussion, revision application deserves to be dismissed and is hereby dismissed, however with following observations and directions so as to enable the trial Court to proceed further in the matter in accordance with law.
Trial Court shall complete the recording of evidence at the earliest without any further delay. For the purpose, prosecution shall not delay the matter.
Since the present accused is not released on bail, he would not prefer to delay the matter, but accused is also directed not to seek unnecessary adjournments.
After recording evidence, the Court shall reconsider the involvement of additional accused in commission of offence as alleged by the petitioner and may pass orders either for further investigation or for joining such persons as additional accused as provided u/s.319 of the Cr.P.C. For the purpose, petitioner is at liberty to file fresh application before trial Court at relevant time.
26. With above direction, interim relief is vacated. In view of aforesaid direction, Criminal Misc.Applications No.14306 of 2010 and 11493 of 2013 do not survive and stands disposed of accordingly.
(S.G.SHAH, J.) binoy Page 18 of 18