Nagjibhai Rataji Rajput and Others vs State of Gujarat and Another

Bela Trivedi, J.—The present revision application has been preferred by the applicants (Ori. Accused) u/s 397 read with Section 401 of the Code of Criminal Procedure, challenging the legality and validity of the order dated 12.9.2007 passed by the learned Addl. Sessions Judge, Banaskantha at Deesa (hereinafter referred to as the "Revisional Court") in Criminal Revision Application No. 32/2007.

Heard Mr. Alok M. Thakkar learned advocate for Mr. Y.S. Lakhani learned Senior Advocate appearing for the applicants and Ms. C.M. Shah learned APP appearing for the Respondent No. 1- State. Nobody appeared for the Respondent No. 2 (Original complainant).

It appears that one complaint being CR No. I-22/2005 came to be registered against the present Petitioners with Sui Gam Police Station for the offence punishable u/s 323, 504, 324, 325, 506(2) and Section 114 of IPC. The Investigating Officer, after the completion of the investigation, submitted the charge-sheet in the Court of Learned Judicial Magistrate First Class, Vav (hereinafter referred to as "the lower Court"), which was registered as Criminal Case No. 362/2005. It further appears that pending the said case, the present Petitioners submitted an application Ex. 3 before the Lower Court seeking deletion of Section 326 of IPC from the charge-sheet and the present Respondent No. 2 submitted an application at Ex. 4 seeking addition of Section 307 of IPC in the said charge-sheet. The lower Court vide order dated 5.4.2007 dismissed both the applications. Being aggrieved by the said order, the present Respondent No. 2 preferred Revision Application being Criminal Revision Application No. 32/2007 before the Revisional Court, which came to be allowed by the Revisional Court vide order dated 12.9.2007. Being aggrieved by the said order of Revision Court, the applicants have preferred the present revision application before this Court.

It was submitted by the learned advocate Mr. Alok M. Thakkar appearing for the applicants that the impugned order passed by the Revisional Court was illegal and contrary to the criminal jurisprudence. According to Mr. Thakkar, the Revisional Court had not properly appreciated the medical evidence and had allowed the revision application of the Respondent No. 2 for adding the offence of Section 307 of IPC, which order deserves to be set aside. However, learned APP Ms. C.M. Shah appearing for Respondent No. 1 - State submitted that the charge having not been framed by the lower Court, it would be open for the Petitioners as well as Respondent No. 2 to point out to the lower court as to whether Section 307 of IPC is required to be incorporated in the charge or not. She has also submitted that the present revision application having been filed against the order of Revisional Court, the same would not be maintainable in the eye of law.

At the out set, it is required to be mentioned that the applicants have challenged the order passed by the Revisional Court in the revision application preferred by the Respondent No. 2 u/s 397 of the Code of Criminal Procedure and in absence of any Code of Criminal Procedure, the second revision application would not be maintainable. Even otherwise, the impugned order being of interlocutory nature, the revision application itself is barred in view of Sub-Section 2 of Section 397 read with Section 401 of Code of Criminal Procedure. As rightly submitted by Ms. Shah learned APP for the Respondent No. 1, it is for the lower Court to consider the papers of investigation and frame the charge against the applicants, which has not been framed so far. Therefore, whether Section 307 of IPC sought to be added in the charge-sheet, as sought to be done by the Revisional Court, would not have any significance in the matter.

In that view of the matter, the present revision application being not maintainable in the eye of law, and being dehors the merits, deserves to be dismissed and is accordingly dismissed. The interim relief granted earlier pending this revision application, stands vacated, forthwith.