HC dismisses lower court’s references

Ahmedabad: In an interesting development, the Gujarat high court has dismissed a reference by a city sessions judge seeking guidance on a law point. This is the second consecutive dismissal by the high court of the lower court’s reference this year with observation that the judge sent the issue to the high court though the law is very well settled.


First, a division bench of Justice Jayant Patel and Justice HB Antani refused to answer a question by additional chief judicial magistrate AY Dave of the CBI court. The CBI court had sought guidance on the issue whether objection raised by the co-accused can be taken into consideration on an accused’s application to turn an approver.
Suspended cop NK Amin proposed to become an approver, and other accused including DG Vanzara opposed Amin’s move. The CBI judge asked the high court whether other accuseds’ objection should be heard or not. The high court dismissed the reference stating that the law was very much clear on this aspect and the magistrate had not taken the authorities into consideration.
In a second such case, the bench of Justice Jayant Patel and Justice SR Brahmbhatt on Tuesday dismissed another reference made by former additional principal sessions judge PB Desai on whether an advocate can continue to represent his client in a criminal case even after the client’s demise.
In this case, one advocate Vinod Brahmbhatt was adamant to continue with a criminal proceeding even after his client Pankaj Modi passed away last year. Modi had filed complaint against AUDA officials along with his brother and mother for selling off a property without taking his consent. The accused objected to appearance of advocate Brahmbhatt and insisted that the role of public prosecutor begins because the court has already taken cognizance of the case.
To judge Desai’s request to guide on this aspect, the high court observed that the lower court did not consider the provisions of the criminal procedure, wherein the role of complainant’s advocate is precisely described. As per the recent amendment in Code, the role of complainant’s advocate has even reduced. “Merely because a complaint is filed by the complainant and upon his complaint, the cognizance is taken by the Court, the complainant would not be in a position to step into the shoes of the State but the role of the complainant would be to put the investigating machinery into the motion in accordance with law,” the bench observed while dismissing the reference.