R_CR.MA_24

7/27/2019 R_CR.MA_24

1/11

CR.MA/2404/2012 1/11 ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION No. 2404 of 2012In

CRIMINAL APPEAL No. 1755 of 2009

=========================================================VIRAMDEVSINH NOTHUBHA JADEJA - Applicant(s)

Versus

STATE OF GUJARAT - Respondent(s)

=========================================================Appearance :

MS GAYATRI B JADEJAfor Applicant(s) : 1,MS CM SHAH APP for Respondent(s) : 1,

=========================================================CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL

and

HONOURABLE MR.JUSTICE PARESH UPADHYAY

Date : 27/02/2012

ORAL ORDER

(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)

1.Rule. Learned APP, Ms.Shah, waives service of

rule on behalf of respondent-State.

2.Present application has been preferred by the

applicant for suspension of sentence and reular

bail.

!."e have heard Ms.#ade$a for the applicant and

Ms.Shah, learned APP for the State.

1 of 11

CRIMINAL MISC.APPLICATION/2404/2012 07/09/2013 02:12:06 PM

7/27/2019 R_CR.MA_24

2/11

CR.MA/2404/2012 2/11 ORDER

%. &t is undisputed position that present

application is the successive bail application

preferred by the applicant. Learned counsel for

the applicant-appellant, however, contended that

after the order dated 1!.'.2(1( was passed by

this )ourt, the *atter was carried before the

Ape+ )ourt and the Ape+ )ourt vide order dated

1%.!.2(11, observed for early hearin of the

appeals. hereafter, the *atter was pressed for

hearin before this )ourt. n 1.12.2(11, this)ourt had passed the order for listin of all

the appeals on 1/.1.2(12 and she sub*itted that

since there are other co-accused who have

preferred separate appeals before this )ourt,

there is also appeal preferred by the State

aainst ac0uittal and as nu*ber of advocates are

appearin, for one reason or another, they are

not re*ainin present and as a result thereof,

the appeal of the appellant-applicant has not

been finally heard. &t has been sub*itted that

under these circu*stances, she *ay be per*itted

to address the )ourt on *erits for suspension of

sentence and reular bail since in hersub*ission, the applicant by now is in $ail for

about last years.

."e *ay state that the present applicant, at the

first instance, had preferred )ri*inal Misc.

Application o.11%% of 2((' which ca*e to be

dis*issed by this )ourt on *erits vide order

dated 2.12.2(('. hereafter, once aain, the

2 of 11


7/27/2019 R_CR.MA_24

3/11

CR.MA/2404/2012 3/11 ORDER

very applicant had preferred another application

bein )ri*inal Misc. Application o.'( of 2(1(

and the sa*e ca*e to be dis*issed vide order

dated 1!.'.2(1(. &n the said order, it was

observed thus3

4he present application has been preferredby the applicant-convict for suspension ofsentence and for reular bail aainst the$ud*ent and the order dated 1(.('.2(('passed by learned Sessions #ude in Sessions

)ase o. 5 of 2(( with 55 of 2(( with 121of 2((.

"e have heard Mr. Pardiwala appearinwith Mr. Popat at lenth for the petitionerand Mr. 6.P. Raval, learned AdditionalPublic Prosecutor for the State.

&t *ay be recorded that the veryapplicant had earlier preferred )ri*inalApplication o. 11%% of 2((' in )ri*inalAppeal o. 15 of 2((' for the very reliefof suspension of sentence and for reularbail and this )ourt 7)ora*3 R.R. ripathi 8#.). 9padhyay, ##:, after considerin the*erits of the *atter, re$ected the saidapplication by passin the followin orderdated (2.12.2(('3

1. he present application is filed by;ira*devsinh onhubha #ade$a, who isoriinal accused o./.

2. ot by a co**on $ud*ent and orderdated 1'.('.2((' passed in Sessions)ase o.5 of 2((%, 55 of 2(( and 121

of 2((. Learned advocate for theapplicant sub*itted that so far as thepresent applicant is concerned, there

3 of 11


7/27/2019 R_CR.MA_24

4/11

CR.MA/2404/2012 4/11 ORDER

is thinner evidence than the evidenceavailable aainst any other accused inthe case. en into consideration,

it is clear that P"-5! was not aneyewitness at all. nown to theprosecution, it has decided not toe+a*ine the persons who were present atthe place of occurrence and also at asubse0uent stae i.e. ta>in thedeceased to the hospital.

2.1 he learned advocate for the

applicant also assailed the evidence ofP"-52 @ co*plainant @ the father of thedeceased. , thouhthe distance was only 1( to 1 feet.ot only that, the learned advocate forthe applicant invited attention of the)ourt to the deposition of that witness

in detail, wherein it is recorded thatthe defence counsel who was seated inthe second row, was not identified bythe witness.

2.2 =e that as it *ay, the 0uestionwhich is re0uired to be considered bythe )ourt at this stae is, ?whether aperson who is convicted after full-fleded trial by the learned AdditionalSessions #ude, is re0uired to bereleased bail?.

2.! Learned advocate for the applicant

4 of 11


7/27/2019 R_CR.MA_24

5/11

CR.MA/2404/2012 5/11 ORDER

also invited attention of the )ourt tothe relevant part of the $ud*entwherein the learned #ude has recordedthe reasons for recordin conviction of

the present applicant. he learnedadvocate also put a 0uestion *ar> onthe veracity of identification of thepresent applicant.

2.2 Learned advocate for the applicantinvited attention of the )ourt to thelie-detection test, which is referredto by the learned Additional Sessions#ude in pararaph 11% of the $ud*entat pae 121. &t is recorded that, ?all

the ten accused were sub$ected to lie-detection test and the presentapplicant is the only one who iscertified to have iven correctanswers. en intoconsideration by the learned AdditionalSessions #ude in riht perspective andshould not have recorded the convictionof the present applicant. en into consideration atleast atthis stae for releasin the presentapplicant on bail.

2.! Learned advocate for the applicantrelied upon decision of the

7/27/2019 R_CR.MA_24

6/11

CR.MA/2404/2012 6/11 ORDER

learned advocate for the applicant,invited attention of the )ourt to thefact that the present applicant isfacin another trial for an offence

punishable under Section !(2 of the&P).

!.1 At this $uncture the learnedadvocate for the applicant invitedattention of the )ourt that in thatcase, the trial )ourt has ranted bailto the present applicant, but, theapplicant is not able to have thebenefit of the sa*e only because theapplicant is convicted in the present

case.

!.2 =e that as it *ay, the )ourt is ofthe considered opinion that at thisstae all these aspects cannot be oneinto and cannot be considered for rantof bail, in liht of the fact that theapplicant is convicted under Sections!(2 and 12(7=: of the &P) after full-fleded trial.

%. in the *atter.

7/27/2019 R_CR.MA_24

7/11

CR.MA/2404/2012 7/11 ORDER

*atter *ay be e+a*ined on *erits. e avery strict view of the *atter whilee+ercisin the power for suspension ofsentence and for releasin the convict on

bail, and the seriousness of the offence andthe nature of the cri*e have to be ta>eninto consideration. Reference *ay be *adeto the decision of this )ourt dated2(.(%.2((' in )ri*inal Misc. Application o.12'! of 2(( as well as the decision of the

7/27/2019 R_CR.MA_24

8/11

CR.MA/2404/2012 8/11 ORDER

when the learned Sessions #ude has believedpartly the deposition of eye witness who isthe father of the deceased, it cannot besaid that the view is perverse on the face

of it, which would ta>e away the substratu*of the case of the prosecution andattractin the power of this )ourt forsuspension of sentence. &f the evidence ofthe eye witness is otherwise believable asnatural, offence under section !(2 wouldstand proved aainst hi* and conse0uentlythe accused who has been convicted foroffence punishable under section !(2 forhatchin conspiracy with others and foractively playin the role in shootin the

deceased would not fall in the case ofe+traordinary cateory callin forsuspension of sentence and for releasin hi*on reular bail. he aforesaid is coupledwith the circu*stances that earlier, this)ourt has declined the application forsuspension of sentence and for reularbail, as observed earlier.

=efore partin, we would li>e to

observe that once an application forsuspension of sentence and for reular bailhas been re$ected by this )ourt, if theapplicant or convict is arieved by thesaid decision, re*edy *ay be availablebefore the hiher foru*D however, to *ovesi*ilar application for the sa*e prayer andentertainin thereof by the )ourt would callfor consu*ption of ti*e of the )ourt, whichotherwise could have been spared for otherlitiants or convicts who are lanuishin in

$ail for a lon ti*e waitin for their turnto co*e for final hearin. "e would saythat substantial ti*e is consu*ed forhearin of the *atter since the learnedadvocate addressed the )ourt at lenth on*erits of the *atter. &nspite of the sa*e,we have heard hi* on *erits and have passedthis order on *erits as apparent fro* therecord. "e only observe that the practiceof *ovin bail application aain and aainafter so*e ti*e deserves to be deprecatedwith a view to see that ti*e of the )ourtcan be invested for other litiants orconvicts who are awaitin for their turn to

8 of 11


7/27/2019 R_CR.MA_24

9/11

CR.MA/2404/2012 9/11 ORDER

co*e up for final hearin of their *atter."e leave the *atter at that stae.

&n view of the above, we find that it

is not a case where discretion is re0uiredto be e+ercised for suspension of sentenceand for releasin the applicant on bailpendin the appeal.

7/27/2019 R_CR.MA_24

10/11

CR.MA/2404/2012 10/11 ORDER

days. &earned '.(.(. submitted that the #tatehas also filed ac$uittal appeals against si)other accused persons and they are alsore$uired to be heard alongwith the present

group of appeals. It was, therefore, suggested atthe bar that if, after the winter%break, all theappeals were listed together and heard on day%to%day basis at least in the second session of theCourt, hearing could be commenced andcompleted within the month of "anuary, 2012itself. *n the other hand, piecemeal argumentson this side of the winter%break would not serveany purpose and unnecessarily hinder hearingof other urgent matters re$uired to be disposedon priority basis. 'ccordingly, by consent, all theappeals with other connected appeals areordered to be listed for final hearing on16.01.2012.

.hereafter, all appeals are already listed for

hearin.

'."e *ay state that final hearin of the appeals

are bein heard and the *atters are notified as

per ae of the *atter. All the roup of the

present *atters are also on =oard today and the

*atter can be heard finally. en into consideration and the

10 of 11


7/27/2019 R_CR.MA_24

11/11

CR.MA/2404/2012 11/11 ORDER

appeals of each co-convict cannot be sereated

as souht to be canvased. At the sa*e ti*e, when

the appeals are already listed on =oard, they

are to be heard finally and the learned advocate

have to conduct the *atter si*ultaneously with

all the co-appellant toether with the appeals

of other co-convict as well as appeal of the

State aainst the order of ac0uittal for other

oriinal co-accused.

1(.9nder the circu*stances, when the appeals are

already on the final hearin =oard on today, we

are not inclined to e+ercise the discretion for

suspension of sentence and reular bail *ore

particularly, when the present application is by

way of successive bail application.

Documents

R_CR.MA_24