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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 2404 of 2012 In CRIMINAL APPEAL No. 1755 of 2009

========================================================= VIRAMDEVSINH NOTHUBHA JADEJA - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) =========================================================
Appearance : MS GAYATRI B JADEJA for 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 re ular bail. !. "e have heard Ms.#ade$a for the applicant and Ms.Shah, learned APP for the State.

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%. &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, hearin observed for early hearin of the appeals. ,hereafter, the *atter was pressed for before this )ourt. -n 1..12.2(11, this of all have )ourt, State )ourt had passed the order for listin since there there is are other co-accused before by

the appeals on 1/.1.2(12 and she sub*itted that who the preferred separate also appeals this

appeal

preferred

a ainst 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 re ular bail since in her sub*ission, the applicant by now is in $ail for about last 1 years. .. "e *ay state that the present applicant, at the first instance, by had preferred )ri*inal vide Misc. order the Application 2o.11%.% of 2((' which ca*e to be dis*issed dated this )ourt on ,hereafter, *erits once 2.12.2(('. a ain,

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very applicant had preferred another application bein dated )ri*inal Misc. Application 2o.'11( of 2(1( 1!.'.2(1(. &n the said order, it was and the sa*e ca*e to be dis*issed vide order observed thus3
4,he present application has been preferred by the applicant-convict for suspension of sentence and for re ular bail a ainst the $ud *ent and the order dated 1(.('.2((' passed by learned Sessions #ud e in Sessions )ase 2o. 51 of 2((. with 55 of 2((. with 121 of 2((.. "e have heard Mr. Pardiwala appearin with Mr. Popat at len th for the petitioner and Mr. 6.P. Raval, learned Additional Public Prosecutor for the State. &t *ay be recorded that the very applicant had earlier preferred )ri*inal Application 2o. 11%.% of 2((' in )ri*inal Appeal 2o. 15.. of 2((' for the very relief of suspension of sentence and for re ular bail and this )ourt 7)ora*3 R.R. ,ripathi 8 #.). 9padhyay, ##:, after considerin the *erits of the *atter, re$ected the said application by passin the followin order dated (2.12.2(('3 1. ,he present application is filed by ;ira*devsinh 2on hubha #ade$a, who is ori inal accused 2o./. 2. <eard learned advocate Mr.=har av =hatt for the applicant. Learned advocate for the applicant ar ued the *atter at len th and tried to convince this )ourt that there is a case for rant of bail and suspendin the sentence i*posed by the learned Additional Sessions #ud e, Ra$>ot by a co**on $ud *ent and order dated 1'.('.2((' passed in Sessions )ase 2o.51 of 2((%, 55 of 2((. and 121 of 2((.. Learned advocate for the applicant sub*itted that so far as the present applicant is concerned, there

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is thinner evidence than the evidence available a ainst any other accused in the case. <e sub*itted that accordin to hi*, the only evidence available a ainst hi* is in the nature of deposition of P"-52 and P"-5!. Learned advocate for the applicant strenuously tried to convince this )ourt that P"-5! is a ? ot-up witness? and that can be appreciated if the evidence @ deposition of P"-5! is perused. &n this re ard, he invited attention of this )ourt to para raph .2, .!, ./, .5 etc. of the deposition and sub*itted that if the sa*e are ta>en into consideration, it is clear that P"-5! was not an eyewitness at all. <e sub*itted that for the reasons best >nown to the prosecution, it has decided not to e+a*ine the persons who were present at the place of occurrence and also at a subse0uent sta e i.e. ta>in the deceased to the hospital. 2.1 ,he learned advocate for the applicant also assailed the evidence of P"-52 @ co*plainant @ the father of the deceased. <e vehe*ently sub*itted that the witness had i*paired eye-si ht, and while deposin in the )ourt roo*, he was not able to identify the person standin in the accused-doc>, thou h the distance was only 1( to 1. feet. 2ot only that, the learned advocate for the applicant invited attention of the )ourt to the deposition of that witness in detail, wherein it is recorded that the defence counsel who was seated in the second row, was not identified by the witness. 2.2 =e that as it *ay, the 0uestion which is re0uired to be considered by the )ourt at this sta e is, ?whether a person who is convicted after fullfled ed trial by the learned Additional Sessions #ud e, is re0uired to be released bail?. 2.! Learned advocate for the applicant
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also invited attention of the )ourt to the relevant part of the $ud *ent wherein the learned #ud e has recorded the reasons for recordin conviction of the present applicant. ,he learned advocate also put a 0uestion *ar> on the veracity of identification of the present applicant. 2.2 Learned advocate for the applicant invited attention of the )ourt to the lie-detection test, which is referred to by the learned Additional Sessions #ud e in para raph 11% of the $ud *ent at pa e 121. &t is recorded that, ?all the ten accused were sub$ected to liedetection test and the present applicant is the only one who is certified to have iven correct answers. <e sub*itted that, that fact should have been ta>en into consideration by the learned Additional Sessions #ud e in ri ht perspective and should not have recorded the conviction of the present applicant. <e sub*itted that this factor is re0uired to be ta>en into consideration atleast at this sta e for releasin the present applicant on bail. 2.! Learned advocate for the applicant relied upon decision of the <onourable the Ape+ )ourt in the case of 6ash*ira Sin h ;s.State of Pun$ab reported in A&R 1'55 S) 21%5. ,he learned advocate sub*itted that as was considered by the <onourable the Ape+ )ourt, the nature of the evidence available a ainst the applicant is re0uired to be considered while considerin the case of the applicant for rant of bail. ,he law laid down by the <onourable the Ape+ )ourt is bindin provided the )ourt co*es to the conclusion that it is applicable to the facts of the case on hand. !. Learned replyin
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A.P.P. Mr.Se$pal besides the contentions raised by the

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learned advocate for the applicant, invited attention of the )ourt to the fact that the present applicant is facin another trial for an offence punishable under Section !(2 of the &P). !.1 At this $uncture the learned advocate for the applicant invited attention of the )ourt that in that case, the trial )ourt has ranted bail to the present applicant, but, the applicant is not able to have the benefit of the sa*e only because the applicant is convicted in the present case. !.2 =e that as it *ay, the )ourt is of the considered opinion that at this sta e all these aspects cannot be one into and cannot be considered for rant of bail, in li ht of the fact that the applicant is convicted under Sections !(2 and 12(7=: of the &P) after fullfled ed trial. %. <avin found no acceptable case for rant of bail, the application is re$ected. Rule is dischar ed. .. At the re0uest of learned advocate for the applicant, it is observed that after si+ *onths, it will be open for the applicant to renew his re0uest for bail. At the re0uest of the learned advocate for the applicant. Re istry is directed to e+pedite preparation of paper-boo> in the *atter. A <owever, learned counsel appearin for the applicant by relyin upon the observations *ade in para raph . of the aforesaid order insisted for renewal of the re0uest for bail by the present application. &t was also sub*itted by the learned advocate for the applicant that the applicant is invitin a reasoned order in the present application for the suspension of sentence and for bail and, therefore, the
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*atter *ay be e+a*ined on *erits. <ence we have also heard the learned counsel appearin for the applicant on *erits of the *atter. &t is by now well settled that releasin the accused on bail pendin the trial and releasin the convict after i*position of sentence stand on sli htly different footin inas*uch as in the later, while suspendin the sentence and releasin the convict on bail, the )ourt has to ta>e a very strict view of the *atter while e+ercisin the power for suspension of sentence and for releasin the convict on bail, and the seriousness of the offence and the nature of the cri*e have to be ta>en into consideration. Reference *ay be *ade to the decision of this )ourt dated 2(.(%.2((' in )ri*inal Misc. Application 2o. 121'! of 2((1 as well as the decision of the <onourable Supre*e )ourt in the case of ;i$ay 6u*ar v. 2arendra and Ra*$i Prasad vBs. Rattan 6u*ar, reported in 72((2: ' S)), !/%. ,he contention of the learned counsel for the applicant even if considered, pri*a facie read with the $ud *ent of the learned Sessions #ud e, it does appear that the eye witness for involve*ent of the applicant is the father of the deceased hi*self and his presence is found as natural by the learned Sessions #ud e while appreciatin the evidence. Curther, the said witness, who is an eye witness to the incident, has identified the applicant accused in the )ourt. ,he learned Sessions #ud e based on the natural presence of eye witness P". 52, found involve*ent of the applicant-accused to the incident of firin the deceased, has convicted the accused for offence punishable under section !(2 of the &P). ,he contention that the witness should be either wholly believable or wholly unbelievable or that even if partly disbelieved, there *ust be corroboration of the testi*ony, in our view, can be e+a*ined at the ti*e of final hearin of the *atter when evidence is to be appreciated or re-appreciated. Pri*afacie
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when the learned Sessions #ud e has believed partly the deposition of eye witness who is the father of the deceased, it cannot be said that the view is perverse on the face of it, which would ta>e away the substratu* of the case of the prosecution and attractin the power of this )ourt for suspension of sentence. &f the evidence of the eye witness is otherwise believable as natural, offence under section !(2 would stand proved a ainst hi* and conse0uently the accused who has been convicted for offence punishable under section !(2 for hatchin conspiracy with others and for actively playin the role in shootin the deceased would not fall in the case of e+traordinary cate ory callin for suspension of sentence and for releasin hi* on re ular bail. ,he aforesaid is coupled with the circu*stances that earlier, this )ourt has declined the application for suspension of sentence and for re ular bail, as observed earlier. =efore partin , we would li>e to observe that once an application for suspension of sentence and for re ular bail has been re$ected by this )ourt, if the applicant or convict is a rieved by the said decision, re*edy *ay be available before the hi her foru*D however, to *ove si*ilar application for the sa*e prayer and entertainin thereof by the )ourt would call for consu*ption of ti*e of the )ourt, which otherwise could have been spared for other liti ants or convicts who are lan uishin in $ail for a lon ti*e waitin for their turn to co*e for final hearin . "e would say that substantial ti*e is consu*ed for hearin of the *atter since the learned advocate addressed the )ourt at len th on *erits of the *atter. &nspite of the sa*e, we have heard hi* on *erits and have passed this order on *erits as apparent fro* the record. "e only observe that the practice of *ovin bail application a ain and a ain after so*e ti*e deserves to be deprecated with a view to see that ti*e of the )ourt can be invested for other liti ants or convicts who are awaitin for their turn to
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co*e up for final hearin of their *atter. "e leave the *atter at that sta e. &n view of the above, we find is not a case where discretion is to be e+ercised for suspension of and for releasin the applicant pendin the appeal. <ence the application is re$ectedA. that it re0uired sentence on bail present

/. &t

appears

that

thereafter,

the

*atter

was

carried before the Ape+ )ourt and the Ape+ )ourt passed the order on 1%.!.2(11 as under3 4"e appearin have heard learned for the parties. counsel

"e are not inclined to rant bail to the petitioner at this sta e. ,he Special Leave Petition is, accordin ly, dis*issed. <owever, we re0uest the <i h )ourt to disposed of the appeal within si+ *onths fro* the date of co**unication of this )ourt. ,he ti*e li*it iven by us shall be strictly observedA. 5. "hen the appeals were ta>en up for hearin order

thereafter, on 1..12.2(11, the followin was passed by this )ourt3

In spite of the appeals being listed for final hearing from time to time after previous order dated 11.10.2011, the appeals could not be taken up for final hearing due to absence of one or other learned advocates concerned or paucity of time in the Court due to other admission hearing of urgent nature. It was fairly stated on behalf of the appellants that arguments of few learned advocates to be led by learned senior counsel r.!.".#hethna re$uired hearing of the appeals on day%to%day basis for a number of

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days. &earned '.(.(. submitted that the #tate has also filed ac$uittal appeals against si) other accused persons and they are also re$uired to be heard alongwith the present group of appeals. It was, therefore, suggested at the bar that if, after the winter%break, all the appeals were listed together and heard on day% to%day basis at least in the second session of the Court, hearing could be commenced and completed within the month of "anuary, 2012 itself. *n the other hand, piecemeal arguments on this side of the winter%break would not serve any purpose and unnecessarily hinder hearing of other urgent matters re$uired to be disposed on priority basis. 'ccordingly, by consent, all the appeals with other connected appeals are ordered to be listed for final hearing on 16.01.2012. 1. ,hereafter, all appeals are already listed for hearin . '. "e *ay state that final hearin are bein per a e of the *atter. All the *atter atte*pt can of be the heard finally. of the appeals roup of the <owever, for the the

heard and the *atters are notified as

present *atters are also on =oard today and the learned advocate

appellant is that her *atter be separated and the appeals of other co-convict and the State appeal a ainst the order of ac0uittal be heard subse0uently. countenanced for Such the atte*pt si*ple cannot that be when reason

$ud *ent and the order of the learned Sessions #ud e is co**on and when all appeals are listed for final hearin , the *erits of the entire *atter is to be ta>en into consideration and the
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appeals of each co-convict cannot be se re ated as sou ht 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 to ether with the appeals of other co-convict as well as appeal of the State a ainst the order of ac0uittal for other ori inal co-accused. 1(.9nder the circu*stances, when the appeals are already on the final hearin suspension of sentence and =oard on today, we re ular bail *ore are not inclined to e+ercise the discretion for particularly, when the present application is by way of successive bail application. <owever, it is observed that applicant shall cooperate for the final hearin 11.Application dischar ed. (JAYANT PATEL, J.) of the *atter. of accordin ly. Rule

disposed

(PARESH UPADHYAY, J.)

(ashish)

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