Mohammed Habib Abu Jais vs State Of Gujarat
2021 Latest Caselaw 27 Guj

        R/SCR.A/8754/2020                                      ORDER




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CRIMINAL APPLICATION NO. 8754 of 2020

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                            MOHAMMED HABIB ABU JAIS
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR ARJUN M JOSHI(11247) for the Applicant(s) No. 1
MR S M VATSA(6000) for the Applicant(s) No. 1
Mr. Mitesh Amin, PP (2) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE B.N. KARIA

                                Date : 04/01/2021

                                 ORAL ORDER

By way of present application, the applicant has challenged the impugned order below Exhibit 9253 dated 21.9.2020 passed in Sessions Case No. 38 of 2009 rejecting the application under Section 232 of the Code of Criminal Procedure which was preferred on the ground of there being no evidence against the present applicant.

Heard learned advocate for the applicant. Learned advocate for the applicant submits that rejecting the application preferred by the applicant under Section 232 of Cr.P.C. is erroneous, improper and de hors law and fact. That, conclusion of the learned Sessions Judge that at the stage for defence witnesses was pending and there is a possibility that some evidence may come on record against the applicant, as a result of which a determination of 'no evidence' could not be

R/SCR.A/8754/2020 ORDER

made. That, incorporation of Section 232 prior to Section 233 is to deny another opportunity to fill up the lacuna of prosecution by putting questions and documents in the cross examination of any defence witness which may be sought to be examined by other co-accused persons. In support of his arguments, learned advocate has relied upon the judgment of the Kerala High Court rendered in case of K. Moidu S/o Mammoo Vs. State of Kerala reported in 2009 CRI.L.J.4045 and case of State of Kerala Vs. Mundan reported in 1981 CRI.L.J 1795.

Issue requires consideration.

Notice returnable on 15.2.2021. learned Public Prosecutor waives service of notice for and on behalf of the respondent

-State.

Learned advocate for the applicant has submitted that during the pendency of this petition, the applicant shall co- operate with the proceeding pending before the learned Sessions Court. It is made clear that this Court has not restricted the trial Court to proceed with the trial .

(B.N. KARIA, J) BEENA SHAH