State of Gujarat vs Hasmukhbhai V. Patel

B.J. Shethna, J.—Kiritbhai Jashabhai Patel, brother of the deceased Pushpa Hasmukhbhai Patel addressed the Registered Letter dated 17.5.93 to two Judges of this Court, myself and my learned brother K.G. Shah, J. stating that on 26.10.92 Hasmukhbhai-husband of Pushpaben gave stick blows to Pushpaben and they gave poison to Pushpaben and killed her. It is also stated that his sister Pushpaben was admitted in private Hospital of Dr. Jayantbhai Acharya at Baroda in unconscious condition on 26.10.92 at 9.00 a.m. and at about 6.00 p.m. she was removed to Bhailal Amin Hospital of Baroda where Dr. Jani examined her and gave oxygen. After three days Pushpaben died in the hospital. At the time of Post Mortem, Doctor told that she was made to take poisonous drug after beating her. Therefore, he lodged complaint against the accused. They were arrested by the police. Except Hasmukhbhai others were released on bail by the Court. On 22.4.93, he was down with malaria and was not able to remain present before the Court, therefore, he sent report with Doctor''s certificate before the Court. The Doctor who had not examined his sister Pushpaben whose name was not shown as witness, gave evidence. On the next day i.e. on 23.4.93 they went to the Court for giving evidence, but the A.P.P. without considering anything examined wrong Doctor, who had neither performed the post mortem nor treated Pushpaben. When he made an application to adjourn the case for 10 days for changing A.P.P., the Court kept it on 24.5.93 and told to give an application for bail for the accused who was in jail. Advocate for the accused-Hasmukhbhai gave application for bail which was granted. The accused was released on bail on 23.4.93 by the Trial Court though his bail application was kept before Justice K.G. Shah of the High Court on 30.4.93. Therefore, he prayed that the bail granted to the accused Hasmukhbhai be cancelled, and false evidence given by the Doctor be examined. After being released on bail, accused Hasmukhbhai was pressurising him to compromise the case.

Copy of the application Ex. 26 dated 23.4.93 for issuing show cause notice against Dr. Purandare and the application of the respondent-accused Hasmukhbhai Exh. 29 dated 23.4.93 and the orders passed below that application by the learned Judge on 23.4.93 have been also sent with the said letter. During the summer vacation, above letter with application Exh. 26 & 29 and order passed by the learned Additional Sessions Judge below it were received by me. Going through the contents of the same, I found a fit case for taking up this matter in exercise of my suo motu powers u/s 401 of the Criminal Procedure Code. On 4.6.93, I directed the learned Registrar of this Court to place this matter before me for judicial orders, after inquiring whether any cognate matter was filed in this case or not. On 7.6.93, the endorsement was made by the office on my letter addressed to the learned Registrar of this Court to the effect that "I.R. checked. No cognate matter is found to have been filed." Hence, on 9.6.1993, I issued Rule and by way of interim relief, stayed the order passed by the learned trial Judge releasing the respondent-accused on bail and directed the I.O. to immediately arrest the respondent-accused and take him into custody. R. & P. also ordered to be called for and the further proceedings in Sessions Case No. 32 of 1993 pending before the Trial Court have also been stayed. The I.O. was also directed to collect the records from Amin Hospital regarding the absence of Dr. Jani on 22.4.93. Notices against Dr. Jani as well as Dr, Purandare were issued. The papers of M.C.A. No.1417 of 1993 were also ordered to be kept along with this Application. Rule was ordered to be heard on 30.6.93.

On 30.6.93 Dr. Purandare and Dr. Jani both remained present before me. Dr. Jani stated that on 22.4.93 he did not remained present before the Sessions Court, though served with the summons, as he was not well and proceeded on leave. Dr. Purandare stated that as the matter was fixed on 22.4.93 before the Sessions Court, he remained present with summons and all medical papers of the case. He further stated that the learned A.P.P., who appeared in the Sessions Case, did not object before the Court when he was ordered to be examined as prosecution witness by the Court. Therefore, he had to step in the witness box. He was also cross-examined by the advocate of the accused. He further stated that only with a view to expedite the hearing of the case he remained present with the medical certificate.

The respondent-accused could not be arrested by the police, but Mr. Patel, learned advocate for the respondent-accused, assured that accused shall surrender himself before the I.O. on 5.7.93 at 9.00 a.m. and the surrender certificate will be produced before this Court at 4.45 p.m. on 3.7.93, Therefore, the matter was kept on 5.7.93.

On 5.7.93 P.S.I. Buch arrested the accused and instead of sending him in jail, brought him before this Court under wrong impression that he was to be brought before this Court. He had assured me that he will produce the accused at Baroda Jail on that very day as soon as they will reach Baroda. He also stated that the police could not arrest the accused as he was absconding. He also produced the leave, application of Dr. Jani and the Muster Roll certified by the Amin Hospital. In the application reason for absence shown was "personal" but in the column of Muster Roll "C" and "Off" have been mentioned against date 22.4.93. "C" means casual leave and "Off" means regular off. Surprisingly both these endorsements have been made in the Muster Roll dated 22.4.93 against the name of Dr. Jani.

Unfortunately on that day learned A.P.P. did not remain present before this Court inspite of the fact that he was informed well in advance by the learned A.P.P. Mr. Bukhari. Instead of remaining present before this Court, he sent a letter through another private lawyer to learned A.P.P. Mr. Bukhari asking the reasons for remaining present before this Court. Therefore, he was directed to remain present this Court. Today he has remained present and expressed his unconditional apology and assured this Court that he will not behave like this in future and he will co-operate in any Court proceedings before this Court or in any other Court.

Going through the records proceedings of the case, it appears that on 31-3-93 the charge was framed against all the accused for the offences punishable under Sections 306, 498-A, 201 read with Section 114 I.P.C. by the learned Addl. Sessions Judge Shri B.S. Parikh and read ever to the accused. They have pleaded not guilty to the charge and claimed to be tried. On 22.4.93 the Sessions Case was fixed, but on that day the complainant was admitted in the Hospital. Therefore, the learned A.P.P. Mr. Vaidya submitted an application Exh. 10 before the learned Judge to adjourn the case. The learned Judge rejected it on the ground that the accused was in custody and merely because the complainant was in Hospital, that would not be a ground to adjourn the case, when many witnesses have remained present.

Then, the learned A.P.P. submitted a list of documents Exh. 11. The learned advocate for the accused did not object for exhibiting the documents at Items Nos. 2, 3, 4, 5, 8, 9 and 10, which have come on the record of that case. Accordingly, the documents, which include the report of the Post mortem notes, medical certificates of the deceased, etc. have been exhibited. Then, evidence of Dr. Purandare was recorded at Exh. 12. Dr. Purandare has stated in his evidence that since last two years he is in medico legal consultanty of Amin Hospital, which is run by the Charitable Trust. He identified the hand writing and signature of Dr. Jani below the certificate issued by Dr. Jani, which was exhibited as Exh. 13. One vital statement made by him in his cross-examination that injury shown in column No. 17, i.e. injury on the back of the deceased, was possible if she had received fits. Then, Panch Bhikhubhai Prabhudas and Mangalbhai Fulabhai have been examined, but both turned hostile. Then, Mahemudmiya Abumiya-Executive Magistrate has been examined. Thus, in all four witnesses have been examined on that day. Thereafter, the learned A.P.P. orally applied for time for examining remaining witnesses and also prayed to issue warrant against the witnesses who have not remained present and also applied for issuing summons against Dr. Acharya and complainant Kiritbhai.

One of the grounds for rejecting the application Exh. 10 was that many witnesses have remained present. But, it appears that in fact the Executive Magistrate and only two Panchas were present and no other person remained present.

On 23-4-93 an application Exh. 16 was submitted on behalf of the complainant and ten other persons, before the learned Judge stating that on 22.4.93 Dr. Purandare was examined before the Court, but neither his statement was recorded by the police nor his name was cited as a witness in the charge-sheet. He had not treated deceased Pushpaben. Though summons was issued to Dr. Jani, Dr. Purandare gave evidence. There was nothing to show that Dr. Jani was out of station for a considerably long time or he had left the country and could not have been examined by the prosecution within a reasonable period of time. Therefore, show cause notice be issued against Dr. Purandare. It is interesting to note that below that application an endorsement was made by the advocate of the accused stating that the police has not recorded the statement of Dr. Jani. Dr. Jani had only issued a certificate and Dr. Purandare, legally authorised person of Amin Hospital, was examined, who identified the signature of Dr. Jani and the certificate issued by him, which was already exhibited and, therefore, there was BO sense in again calling Dr. Jani. The application has been given only with a view to harm the defence of the accused, hence it may be rejected. Below that application learned A.P.P. Mr. Vaidya made the following endorsement :--

"Dr. Purandare came with the summons as the doctor concerned of the Hospital in place of Dr. Jani who was out of station. Hence, he was examined "

Below that application Ex. 26 learned Judge passed a speaking order and rejected the same by observing that whether Dr. Jani was out of station or not ? That question had become immaterial for him for exhibiting the certificate issued by Dr. Jani, the learned advocate for the accused raised no objection and absence of Dr. Jani made no difference for exhibiting the certificate issued by him in the evidence of Dr. Purandare. Dr. Purandare never insisted, but he was examined by the learned A.P.P. Shri Vaidya and accordingly his evidence was recorded. Hence, it can not be said that Dr. Purandare committed anything wrong. He also observed that Dr. Purandare is a senior officer and has given independent evidence before the Court in many cases. Therefore, his one sentence in the cross-examination, which is likely to damage the prosecution case, may be the reason for the complainant for giving the application but because of that no action can be taken against Dr. Purandare.

On 23.4.93 Dr. Acharya, who first examined deceased Pushpaben at his private Hospital at Baroda, sent an application Exh. 27 stating that he was not in a position to remain present because he was down with Malaria and requested that summons may be issued by the Court after a period of one week. That application was supported by the medical certificate of Dr. Ramesh Kanani dated 22.4.93.

However, learned A.P.P. Mr. Vaidya stated before me that Dr. Acharya was present before the Court on 22.4.93, but as he had not brought case papers of Pushpaben with him and, therefore, he was asked to go back from the witness box by the Court.

On 23.4.93 the complainant and others submitted an application Exh. 28 before the learned Judge for adjourning the case for ten days as they wanted to change A.P.P., because they lost confidence in learned A.P.P. Mr. Vaidya in view of the recording of Dr. Purandare''s evidence in place of Dr. Jani. Below that application, learned A.P.P. Mr. Vaidya made the following endorsement:--

"In this case Dr. Purandare of Bhailal Hospital, Baroda has been appointed as legal consultant and in that case he was sent by the Hospital with the Certificate of the Doctor and his evidence was taken only for the purpose of identifying the signature of Dr. Jani. He (Dr. Purandare) told me that he was deputed by the Hospital in place of Dr. Jani, therefore, he was examined. Dr. Purandare has not given any other evidence except on the point of Certificate and Dr. Purandare told me that Dr. Jani had gone out of station. Therefore, his evidence may be recorded. Therefore, in the interest of justice, if the permission is obtained from Gandhinagar, he has no objection, but in future false allegations would be made against Government pleaders by the complainant if the Government Pleader will not act according to the wishes of the complainant. To find out truth, he is discharging his duties.

A.P.P. Shri Vaidya"

That application was objected by the advocate of the respondent-accused. The learned Judge passed a speaking order and adjourned the case He observed that it was not proper for him to go into the correctness of the allegations made against A.P.P., at the same time it can not be said that the application given by the complainant was with some ulterior motive. The learned Judge further observed that it was desirable that the advocate of the choice of the complainant, who has either lost his daughter or sister, conducts the case. But to appoint another A.P.P. is a question to be decided by the Government for which proper opportunity should be given to the complainant. Therefore, the case is required to be adjourned.

But after observing the aforesaid, the learned Judge observed that if the case was delayed because of the complainant and if it was found to be desirable to release the accused on bail, it may be considered. I fail to appreciate what was the need for the learned Judge to make such observations. It was completely out of context of the matter, particularly when the learned Judge himself earlier found the grievance of the complainant to be genuine. Then how can he observe about releasing the accused on bail ?

After the above order was passed immediately hand written application Exh. 29 was submitted by the learned advocate for the accused on 23.4.93 for releasing the accused on bail, which was ordered to be fixed for hearing at 3.30 p.m. on that very day by the learned Judge. And order running into o four typed pages was passed by the learned Judge and the accused was released on bail on his furnishing a solvent surety for Rs. 5000/-and executing P.R. Bond for a like amount. For releasing the accused on bail, the learned Judge has taken into consideration not only the evidence of Dr. Purandare but also other evidence on record in the form of Police statements of the the witnesses. At this stage, it may be stated that neither copy of that bail application was given to the A.P.P. nor he was heard and the order was passed by the learned Judge. Immediately, thereafter complainant gave application Exh. 30 on 23.4.93 before the learned Judge for staying the operation of that order in view of the judgment of this Court reported in 1989 GLH 1174 on the ground that the offence committed by the respondent-accused was a very serious offence and twice the bail application the accused was earlier rejected by the Court. The learned Judge after hearing the advocate for the complainant, rejected his application on the ground that the complainant had no locus standi to challenge the order of releasing the accused on bail. The learned Judge also held that even if the complainant had the right, then also considering the circumstances and the evidence of the case, he has passed the order and, therefore, there were no good reasons for staying his own order or granting bail to the accused.

Exh. 31 dated 14.6.93 is an application submitted by the advocate for the respondent-accused before the learned Joint District Judge for giving adjournment on the ground that the accused has gone to engage advocate in the High Court in Misc. Criminal Application No. 2178 of 1993 filed by the complainant. However, the learned Judge directed the accused to surrender into custody as per the order of this Court passed in this Revision Application.

In view of the aforesaid background, this Revision Application is required to be decided. Mr. A.J. Patel, learned advocate appearing for the respondent-accused, has raised first preliminary objection regarding the exercise of my suo motu power in this matter. He has pointed out that on 9-8-93 I have taken cognizance in the matter and exercised suo motu power u/s 401 of Cr.P.C., which was not permissible in view of the business allotted by the learned Chief Justice. He pointed out that on 9-6-93 I was sitting with my learned brother K.G. Shah, J. and detention matters were assigned to us and the criminal business was assigned to my learned brother N.J. Pandya, J. Therefore, without going into any other questions, I should discharge the rule issued by me and vacate the interim relief granted in this matter as I had no power to take up or deal with this case. In support of his submission, Mr. Patel has strongly relied upon three judgments of the Supreme Court: (1) State of Maharashtra Vs. Dr. Budhikota Subbarao, ; (2) Vidharbha Sikshan Vyawasthapak Mahasangh Vs. State of Maharashtra and Others, ; and (3) State of Madhya Pradesh Vs. Dewadas and Others, and also relied upon the judgment of the Full Bench of this Court in the case of Ashwinkumar v. State (1988) 1 G.L.R. 95 and the judgment of the Division Bench of Calcutta High Court in the case of Sohan Lal Baid Vs. State of West Bengal and others, .

I would like to take up the last authority first. In the case of Sohan Lal (Supra) the Division Bench of Calcutta High Court held that "Once the Chief Justice has determined what Judges of the Court are to sit alone or to constitute the several Division Courts and has allocated the judicial business of the Court amongst them, the power and jurisdiction to take cognizance of the respective classes or categories of cases presented in a formal way for their decision, according to such determination, is acquired. To put it negatively, the power and jurisdiction to take cognizance of and to hear specified categories or classes of cases and to adjudicate, exercise any judicial power in respect of them is derived only from the determination made by the Chief Justice in exercise of his constitutional, statutory and inherent powers and from no other source and no case which is not covered by such determination can be entertained, dealt with or decided by the Judges sitting singly or in Division Courts till such determination remains operative. Till any determination made by the Chief Justice lasts, no Judge who sits singly can sit in a Division Bench nor can a Division Bench be split up and one or both of the Judges constituting such Bench sit singly or constitute a Division bench with another Judge and take up any other kind of judicial business. Even cases which are required to be heard only by a particular Single Judge or Division Bench, such as part-heard matters, review cases etc., cannot be heard, unless the Judge concerned is siting singly or the same Division Bench has assembled and has been taking up judicial business under the extent determination. Such reconstitution of Benches can take place only if the Chief Justice specially determines accordingly. The cardinal position is that before jurisdiction over the subject matter is exercised, the case must be legally brought before the concerned Court for its hearing and determination and that a judgment pronounced by a Court without investment of jurisdiction is void." Relying upon this judgment, Mr. Patel submitted that the exercise of my suo motu jurisdiction in this matter on 9-6-93 was bad and, therefore, this petition should be dismissed.

I fully agree with the principle laid down by the Calcutta High Court. Same view is taken by this Court and the Supreme Court. Therefore, I will not discuss those judgments cited by Mr. Patel. In fact I myself have condemned the practice of the advocates in getting their matter placed before the Judges of their choice, who were not allotted such business and rejected M.C.A. No. 5 of 1992 in C.R.A. No. 753 of 1991 on 13-2-92. But this is not that type of case. In this case if the complainant, after filing the matter in the office of this Court, had attempted to place it before me. I would have refused to touch his matter. To take up the matter, which is filed in the office, of a business which is not assigned to a Judge by the learned Chief Justice is altogether a different things, than taking up the matter by a Judge in his suo motu powers. Every Judge of this Court functions as a High Court. Therefore, in my opinion, in such type of cases any Judge of this Court can exercise his suo motu powers, irrespective of the fact whether such business is assigned to him or not, if he is prima facie satisfied. Mr. Patel was unable to point out any rules of business or any judgment of this Court or any other Court, taking contrary view.

This is a case in which after rejection of his second bail application by the Trial Court, accused filed Criminal Mis. Application No. 1417 of 1993 for bail before this Court, in which my learned brother K.G. Shah issued notice on 19-4-93 and made it returnable on 27-4-93. This was not brought to the notice of the learned trial Judge by the accused in his bail application Exh.29 dated 23-4-93 and the learned Judge in most unusual manner granted bail to the accused on the same day without hearing the learned A.P.P. On 22-4-93 the learned Judge proceeded to record the evidence of Dr. Purandare in undue haste, when that Doctor was not at all concerned with the case nor he was summoned nor his statement was recorded by the police. In his cross-examination one important answer was elucidated in fevour of the accused by his advocate, which was sufficient to destroy the prosecution case. Dr. Jani was not available for a day only. It was the first day of the case, inspite of the application of the learned A.P.P. to adjourn the case on the ground of sickness of important witness like complainant, the learned Judge did not grant any time and compelled the A.P.P. to examine Dr. Purandare.

Under the aforesaid circumstances, the complainant, who is the unfortunate brother of deceased Pushpaben, with the hope of getting justice from this Court approached me and my learned brother K.G. Shah, J by a registered letter sending copies of the applications Exh. 26 & Exh. 29 and the orders passed by the Trial Court below it, with a request to take up the matter and a justice to the departed soul. After going through the contents of the case, I was more than convinced that this Court should exercise its suo motu power in this case and, therefore, I exercised my suo motu power u/s 401 of Cr. P.C. on 9-6-93, eventhough this business was not assigned to me. And, in absence of any rules or any judgments of this Court or any other Court contrary, it can not be said that order dated 9-6-93 passed by me was without jurisdiction. As stated earlier, going through the contents of the application and the orders passed below that, I was prima facie convinced that not only the orders passed by the learned Judge below both the applications Exh. 26 and Ex. 29 are wholly unsustainable but there is something fishy in the matter. Therefore, Records and Proceedings were called for by me and going through the Records and Proceedings of the case, many more things have come out. As stated earlier, I have recorded the statements of Dr. Purandare, Dr. Jani and now today of learned A.P.P. Mr. Vaidya and I.O. Mr. M.N. Chauhan--P.S.I. (Now P.I.). I.O., has stated that he was very much present before the Court on 22-4-93 when the Sessions Case was fixed but without calling out the name of Dr. Purandare, he was examined by the Court of which he was not even aware. What actions are to be taken in the matter, I will decide lateron. All these facts have been stated with a view to rule out the preliminary objection raised by Mr. Patel.

Mr. Patel has also brought to my notice that the complainant himself has also filed an application for cancellation of bail i.e. M.C.A. No. 2178/1993 much before I exercised my suo motu powers. In that matter on 28-5-93 my learned brother D.G. Karia, J. issued Rule and made it returnable on 14-6-93. However, in that application only prayer for cancelling bail granted to the respondent-accused is made. At this stage, it is required to be stated that when I directed the learned Registrar of this Court on 4-6-93 to place this matter before me for passing judicial order, the office was asked to find out whether cognate matter was filed or not. The endorsement was made by the office of this Court on 7-6-93 that no such cognate matter was filed. Therefore, on 9-6-93 I exercised my suo motu power. I am making clear that if it was brought to my notice by the office that the complainant has already filed application for cancellation of bail, I would not have exercised my suo motu power u/s 401 of Cr.P.C.

Mr. Patel raised second preliminary objection that before passing adverse order against the respondent-accused, he was required to be heard by this Court u/s 401(2) of Cr.P.C. and without hearing the accused this Court has cancelled the order passed by the Trial Court granting bail to the accused. Hence, the order dated 9-6-93 passed by this Court should be revoked. It is true that straight-away Rule was issued and the order passed by the learned Judge was stayed and the I.O. was directed to arrest the respondent-accused, but it was an interim order and not the final order. If without hearing the respondent-accused 1 had allowed the Revision Application and cancelled the bail, then Mr. Patel perhaps would have been justified in making this submission. By my order dated 9-6-83 I had only stayed the operation of the order granting bail to the accused and consequence thereof I.O. had to be directed to arrest the accused, by issuing rule in the matter. After hearing the accused I would have discharged the rule and maintained the order of granting bail to the accused, if I was convinced by Mr. Patel about the legality of the order passed by the learnee Judge, I have fully heard Mr. Patel in this Revision Application regarding the preliminary objections and also on other submissions on merits, before setting aside the bail order passed by the Trial Court in favour of the accused.

Mr. Patel then submitted that when the complainant has already preferred Misc. Criminal Application No. 2178 of 1993 for cancellation of bail, this matter may also be ordered to be placed before the learned Judge taking up this business. In ordinary circumstances instead of deciding this matter I would have readily passed that order. But in this matter, as stated earlier, statements of Doctors, A.P.P. and I.O. have been recorded by me and necessary order was also required to be passed. And, order passed below Application Exh. 26 by the learned Judge is also under challenge, which is not challenged in the above Misc. Criminal Application filed by the complainant. Therefore, it would not be proper for me to send this matter to my learned brother Judge only for the purpose of deciding about the legality and validity of the impugned order passed by the learned Judge below Application Exh. 29. Hence, this submission of Mr. Patel cannot be accepted.

What order should be passed about the evidence of Dr. Purandare, which has come on record at Exh. 12? Should it be de-exhibited or not ? Dr. Jani, who had examined the deceased Pushpaben, was very much available for his evidence. His evidence would be in the nature of the primary evidence and would be the best evidence. Mr. Desai, learned advocate appearing for Dr. Purandare, has fairly stated that in the circumstances in which, namely, (1) no summons was issued against him, (2) his name was not shown in the charge-sheet, (3) deceased Pushpaben was not treated by him nor P.M. report was made by him, (4) his statement was not recorded by the police, (5) the summons was issued in the name of

Dr. Jani, which was duly served upon him and who was otherwise available except on 22-4-93, evidence of Dr. Purandare should be de-exhibited. Mr. Bukhari, learned A.P.P. has fully supported the submission made by Mr. Desai. However, Mr. Patel, learned advocate appearing for the respondent-accused, vehemently objected about de-exhibiting the evidence of Dr. Purandare at this stage. Though he agreed that the evidence of Dr. Purandare was in the nature of a secondary evidence. This was not a case where Dr. Jani, who examined deceased Pushpaben, had either left the country or was not available for a long time so that another Doctor, knowing his signature could have been examined to prove the certificate issued by him. In fact, the learned trial Judge proceeded with undue haste in recording the evidence of Dr. Purandare. There are contradictory statements made by Dr. Jani, Dr. Purandare, learned A.P.P. Mr. Vaidya, I.O. Mr. Chauhan. The observations made by the learned Judge himself in his order below applications Exh. 26 and Exh. 28 are contrary to what has been stated by them before this Court. Therefore, in the peculiar facts and circumstances of the case, the evidence of Dr. Purandare, which has come on record as per Exh. 12, has to be de-exhibited. Accordingly, it is ordered to be de-exhibited.

The Trial Court shall now proceed to issue summons against Dr. Jani. Dr. Jani, who is present before this Court today, has assured this Court that he will remain present before the Court and depose as and when he is summoned by the Trial Court. From the record of the case it also appears that alongwith one important witness Mahmoodmiya Malek-Executive Magistrate Exh. 24, two other panch witnesses have been examined. The learned Judge should have at least give one opportunity to the prosecution to keep Dr. Jani present before him, particularly when Dr. Acharya, who had first examined the deceased Pushpaben, was himself not available due to sickness and other important witnesses like complainant and others were also not present. It is also made clear that Certificate Exh. 13, which has been exhibited in the evidence of Dr. Purandare, shall have to be again brought on record in the evidence of Dr. Jani and exhibited again.

Once the evidence of Dr. Purandare is de-exhibited the order of granting bail passed by the learned Judge on 23-4-93 is required to be set aside because he has mainly relied upon the evidence of Dr. Purandare. When that evidence itself has not remained in existence, the same can not be relied upon any more. The learned Judge has not at all considered the most important aspect of the case that twice the bail applications of the respondent-accused were rejected on merits. Therefore, it was not open to him to again re-appreciate the evidence on the record and grant bail. This has been stated by this Court in Misc. Criminal Application No. 4002 of 1992 decided on 21.12.92, which is circulated to all the Trial Courts. Unfortunately, the learned Judge has simply overlooked that judgment! Therefore, on this ground also the impugned order of granting bail to the accused below Application Exh. 29 has to be set aside.

One more important thing which is required to be stated is that it was none of the business of the learned Judge to observe that accused can apply for bail while passing the order below application Exh. 28. It has become clear from the facts of this case that when the complaintant had asked for time, the learned Judge was pre-determined to grant bail. It was not in a proper taste. I am told at the Bar that the learned Judge, who has passed the impugned orders, is no more there and he is already transferred to the legal Department and the case is now transferred to Mr. T.D. Gujrati-Joint District Judge. Otherwise, this Court would have directed the learned Addl. Sessions Judge Shri Parikh that he shall not try the case and it may be tried by any other Judge.

In view of above discussion, the order granting bail to the respondent-accused passed by the learned Addl. Sessions Judge on 23-4-93 below Application Exh. 29 is set aside. The accused is already in the jail pursuant to the interim order dated 9-6-93, hence no further order is required to be passed.

I have already recorded the statements of Doctors, learned A.P.P. Mr. Vaidya and I.O. Mr. Chauhan. In view of the contradictory statements made by each of them, it would be desirable and proper that the learned Trial Judge, who is going to try the Sessions Case, shall go into that and find out who was wrong and shall take appropriate action against the concerned person. The main P P, shall see to it that in place of learned A.P.P. Mr. Vaidya, new A.P.P. is appointed to conduct this Sessions Case, Office is directed to send all the interim orders and the order passed today alongwith the Records and Proceedings to the learned trial Judge, before whom the Sessions Case is going to be tried. The office is also directed to place the papers of this case before the learned Chief Justice for taking appropriate action against the learned Addl. Sessions Judge Shri B.S. Parikh in recording evidence of Dr. Purandare and dealing with applications Exhs. 26 and 28 and granting the accused bail below application Exh. 29, without hearing the learned A.P.P. on the same day i.e. on 23-4-93.

Accordingly, this Revision Application is allowed. The order granting bail to the respondent-accused passed by the learned Addl. Sessions Judge on 23-4-93 below application Exh. 29 is quashed and set aside. The order passed by the learned Addl. Sessions Judge on 23-4-93 below Application Exh. 26 is also set aside. The evidence of Dr. Purandare recorded at Exh. 12 is ordered to be de-exhibited and consequence thereof, the Certificate issued by Dr. Jani, which is exhibited as Exh. 13 in the evidence of Dr. Purandare, is also ordered to be de-exhibited. However, it is made clear that the same certificate may again be brought on record of the Sessions Case and exhibited in the evidence of Dr. Jani, who had issued that certificate. Regarding the examination of Dr. Purandare before the learned Addl. Sessions Judge, there are contradictory statements of Dr. Purandare and learned A.P.P. Mr. Vaidya made before this Court. It would be proper that the learned Judge trying the case shall go into that question and decide who was at fault after making proper inquiry and take appropriate action against the concerned person in the matter. In the peculiar facts and circumstances of the case, it is not desirable that learned A.P.P. Mr. Vaidya should conduct the Sessions Case and, therefore, main P.P. shall see to it that in place of Mr. Vaidya appointment of other A.P.P. is made for conducting the Sessions Case. As the accused is in jail, the learned Judge dealing with the Sessions Case shall see to it that the Sessions is fixed as early as possible and the same is decided in accordance with law, after issuing summons to the witnesses to remain present before him. Rule is made absolute accordingly in the aforesaid terms.