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2015 DIGILAW 14 (RAJ)

Mohd. Sarvar Aazmi v. The State of Rajasthan

2015-01-05

M.N.BHANDARI

body2015
JUDGMENT 1. - By this petition, a challenge is made to the order dated 18.09.2014 passed on application under Sections 219, 220 & 223 Cr.P.C. 2. Learned counsel submits that application was filed for consolidation of 8 cases for its trial. It is looking to the nature of allegation. In absence of consolidation of the cases, delay would be caused in the trial. 3. It is urged that out of 8 cases, no progress has been made in 7 cases. To avoid delay, even the learned Public Prosecutor had agreed for consolidation of the cases for its trial. The trial court however dismissed the application in ignorance of the aforesaid. If cases are not consolidated, the trial would take 25 to 30 years. In view of above, impugned order may be quashed with the acceptance of the application for consolidation of the cases for its trial. Learned counsel has given reference of Apex Court in the case of Kadiri Kunhahammad v. The State of Madras, reported in AIR 1960 SC 661 where consolidation of the cases was allowed. 4. Learned Public Prosecutor with the assistance of the OIC submitted that earlier similar application was dismissed by the court below vide order dated 24.05.2011. The criminal misc. petition bearing No. 1429/2011 was filed to challenge the said order. It was dismissed by this court vide order dated 05.07.2011. It was not open for review in view of provisions of 362 Cr.P.C. The petitioners yet submitted application for consolidation of the cases. It was again dismissed by the court followed by a petition under Section 482 Cr.P.C. It was disposed of vide order dated 12.05.2014 as learned counsel for petitioners prayed for liberty to move fresh application in the change circumstances. The petitioners submitted application for consolidation of the cases on third occasion. It has been dismissed vide the impugned order finding that not only 8 incidences are of different places but the injured and majority of the witnesses are also different, thus question of consolidation of cases is not made out. It is apart from the fact that in one case, trial has already advanced as out of 108 witnesses, 82 have already been examined and in other case also, statements of 70 witnesses have been recorded. The consolidation of the cases at this stage would result in fresh trial even in those cases. It is apart from the fact that in one case, trial has already advanced as out of 108 witnesses, 82 have already been examined and in other case also, statements of 70 witnesses have been recorded. The consolidation of the cases at this stage would result in fresh trial even in those cases. In view of aforesaid, prayer made by the petitioners was rightly declined. 5. I have considered rival submissions made by the parties and perused the record. 6. Application for consolidation of cases submitted by the petitioners was dismissed by the court below on the first occasion on 24.05.2011. The petitioners preferred criminal misc. petition bearing No. 1429/2011 to challenge the order. The said petition was dismissed vide order dated 05.07.2011. The dismissal of the petition was on merit finding no case for consolidation of the cases for trial. A reference of judgments of Apex Court in the case of Mohinder Singh v. State of Punjab, reported in AIR 1999 SC 211 and in the case of Ranchhodlal v. State of Madhya Pradesh, reported 1965 AIR 1248 was given. After dismissal of the petition aforesaid, fresh application was not maintainable. The petitioners however submitted another application before the court below for consolidation of the cases. The application aforesaid was again dismissed vide order dated 09.07.2013. The court came to the conclusion that once the application was dismissed followed by judgment of the High Court, it is not maintainable. The petitioners again preferred petition under Section 482 Cr.P.C. This time a prayer was made for disposal of the petition with the direction that if petitioners move a fresh application, the court below may decide it afresh in the light of the change circumstances. 7. Learned counsel for petitioners has referred change circumstances by showing agreement of the learned Public Prosecutor to consolidate 7 cases. In my opinion, once application for consolidation of cases was dismissed followed by order of the High Court, it could not have been subjected to second application in regard to same prayer. The order passed by this court is not subject to review as per bar imposed under Section 362 Cr.P.C. A liberty to make application does not mean that while passing fresh order, basic provisions of Cr.P.C. can be ignored so as the earlier order of the High Court. The order passed by this court is not subject to review as per bar imposed under Section 362 Cr.P.C. A liberty to make application does not mean that while passing fresh order, basic provisions of Cr.P.C. can be ignored so as the earlier order of the High Court. Thus in my opinion, fresh application was not even maintainable however it was considered by the court below in view of liberty given by the High Court on second petition under Section 482 Cr.P.C. If maintainability of the application is also ignored, the question comes as to whether case is made out for consolidation of trial of 8 cases. Learned Public Prosecutor raised objection for consolidation of the cases in view of the fact that not only 8 incidences occurred at different places but the injured and majority of the witnesses are different. Only the Doctors who have conducted medical may be common apart from few other witnesses. Looking to the fact aforesaid, case for joint trial is not made out. When majority of the witnesses are by and large different then question of consolidation of cases does not arise. Rather, in case of consolidation of cases, it will create complication. The statements of the witnesses for different incidence of bomb blast cannot be read in the other cases, if trial is consolidated. The purpose of consolidation of the cases is achieved when there is common incidence and witnesses and not otherwise. In view of facts given above, I do not find that application for consolidation of the cases could have been allowed by the court below. It is also a fact that in few cases, trial has been advanced and according to the statement of OIC, in one case, evidence has already been completed and the case has now been kept for final arguments. The aforesaid statement has been controverted by the learned counsel for petitioners. In any case, the impugned order shows that trial in few cases has advanced and majority of the witnesses have already been examined, thus at this stage, application for consolidation of cases cannot be accepted. In my opinion, there is no error in the impugned order so as to dismiss the application for consolidation of the cases for different incidences where injured are different apart from majority of the witnesses. 8. The criminal misc. petition under Section 482 Cr.P.C. is accordingly dismissed. *******