Point of Law: The powers so vested with the Court or the learned Magistrate are with the holy purpose of advancement of the interest of justice and it leaves no vesting or arbitrary power upon him. As per Sub-section (3), the Magistrate is enjoined with the duty to record the reasons so doing and the said provision of Sub-section (3) requiring the learned Magistrate to record the reasons can, on the face of it, be said as ruling out any arbitrariness in exercise of the powers and when the provision of the statute is made for exercising of the power for reasons to be recorded for such purpose, that would mean in furtherance to the principles of natural justice.

ORDER :

1. By way of present Criminal Revision Application, the applicant – original accused No.2, namely, Mr. Sanjiv Bhatt, challenges order dated 28.1.2021 passed by the learned 5th Additional Sessions Judge, Banaskantha @ Palanpur below application Exh.132 in Special (NDPS) Case No.03 of 2018, whereby the learned Sessions Judge refused to grant following prayer made by the applicant – original accused No.2 in para 2(A) of the application Exh.132.

“2(A) That the Hon’ble Court be pleased to adjourn the hearing of Exh.67 till the application vide Exhs.58 & 63 are not disposed of by the Hon’ble Court in view of the peculiar facts and circumstances as stated above.”

2. Learned advocate Mr. Saurin Shah appearing for the applicant – original accused No.2 took the Court to the chronology of events of the case right from 30.4.1996 till filing of the application Exh.132 and specifically drawn the attention of this Court to the communication dated 1.8.2018 addressed by the CID (Crime) to the S.P., Palanpur with respect to handing over the investigating papers with reference to offences punishable u/s 17 of the NDPS Act vide I – C.R. No.216 of 1996 registered with Palanpur City Police Station. According to him, the applicant – original accused No.2 has sought production of various documents enlisted in the applications below Exhs.58 & 63 purported to have been filed u/s 91 of the Code of Criminal Procedure, 1973 (for short “the Code”) for cross-examination of the witnesses with regard to I – C.R. No.216 of 1996 and other documents. It is vehemently argued and submitted by learned advocate Mr. Shah that in connivance with the State, the accused No.1 Mr. IB Vyas submitted an application Exh.67 to become Approver filed u/s 306 of the Code on 10.10.2019 immediately after release on temporary bail on the ground of health on 23.9.2019 and remained on temporary bail for considerable time as per various orders passed by the Coordinate Bench. Lastly, learned advocate Mr. Shah would submit that the statement placed on record by accused No.1 Mr. IB Vyas along with his application Exh.67 is made in line of the prosecution case and the same is eloquent from the reading of the charge sheet papers and therefore, the applicant – accused No.2 moved an application to defer the hearing of Exh.67 till applications Exhs.58 & 63 filed u/s 91 of the Code to throw light on the aspect as to how the statement of accused No.1 is far from truth are heard and decided.

3. Per contra, learned Public Prosecutor would submit that application Exh.132 is filed with a view to delay the hearing of the case and applications Exhs.58 & 63 are made with a view to use the documents at the time of cross-examination of the witnesses and not for any other purpose. Further, as per observations made by the Coordinate Bench in para 6 and 11 of the order passed on 16.9.2020 in Criminal Misc. Application No.11495 of 2020, all the applications, namely, Exhs.58 & 63, 67 and 95 are to be heard and decided as and when physical hearing commences and accordingly, the applicant herein tendered an application on 12.1.2021 before the learned trial Court to fix the date of hearing of pending applications. Learned Public Prosecutor would further submit that as such, applications Exhs.58 & 63 were already heard and both the applications were kept for orders on 25.10.2019 and thereafter, the matter was listed on various dates till 9.3.2020 for pronouncement of orders on the said applications Exhs.58 & 63 filed u/s 91 of the Code, but as the learned Special Judge was transferred, the question of fresh hearing of both the applications arose once again. According to learned Public Prosecutor, at that relevant point of time, application Exh.67 tendered by accused No.1 Mr. IB Vyas to become Approver was pending, but no any application of the present nature is filed before application Exh.132 was moved, and now, application Exh.132 is filed only with an intention to further delay the trial. Lastly, learned