Trial for harbouring an accused must only proceed after the principal offender is convicted, ensuring proper jurisdiction in charge framing.

JUDGEMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 457 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA ============================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== ATUL ALIAS LALO SARATANBHAI DESAI & 1 - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ============================================================== Appearance : MR UA TRIVEDI for Applicant(s) : 1 - 2.

MR HM PRACHCHHAK, APP for Respondent(s) : 1, ================================================================== CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA Date : 05/10/2005 ORAL JUDGMENT

1. By filing instant petition under Section 397 read with Section 401 of the Code of Criminal Procedure ('the Code' for short), the petitioners – original 2/14 JUDGMENT accused No.1 and 3 seek to challenge the order dated 24.6.2004 recorded below application Exhs.3, 7 & 8 in Sessions Case No.162 of 2004 by the learned Additional Sessions Judge, Court No.8, City Sessions Court, Ahmedabad, by which application filed by the petitioners at Exh.7 came to be rejected. 2. The petitioners are original accused No.1 and 3 in a supplementary chargesheet submitted by Amraiwadi Police Station, Ahmedabad, for the offence registered C.R.No. I-151 of 2000 for commission of alleged vide offences under Sections 120-B, 303, 34, 212 and 201 of the Indian Penal Code as well as under Section 135 of the Bombay Police Act.

2.1 According to the case of prosecution, one Amthabhai Sankabhai Desai was murdered on 27.3.2000, and in connection with the said offence, one Gova @ Nagji Rabari along with seven other accused persons have been prosecuted. In the said chargesheet, present petitioner along with two other persons were shown as absconding in the first chargesheet which is filed against Govaji Nagji Rabari and seven other accused.

Subsequently, the petitioners came to know that they 3/14 JUDGMENT have also been implicated in the said offence, therefore the petitioner No.2 approached the Sessions Court, Ahmedabad, for obtaining anticipatory bail as, according to him, he has falsely roped into the offence by the police. While deciding the said application filed by the petitioner No.2 seeking anticipatory bail, the learned Additional Sessions Judge came to the conclusion that the only offence charged against the petitioner No.2 was under Section 212 of the Indian Penal Code ('IPC' for short), and, as the said offence is a bailable offence, application for anticipatory bail was not maintainable. The petitioner No.2 therefore appeared before the learned Magistrate having jurisdiction over the Police Station and obtained an order of regular bail. The petitioner was arrested on 24.7.2000 i.e., after three days from the date of filing first chargesheet for the offence. Subsequently, the petitioner No.1 was also released on bail.

2.2 The first chargesheeted accused was committed to the Court of Sessions, Ahmedabad, and it was numbered as Sessions Case No.72/2002, whereas, the case against the present petitioners and two other accused was never committed to the Court of Sessions. According to the 4/1