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ORDER

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) =========================================================

and Date : 27/02/2012 (Per : HONOURABLE MR.JUSTICE JAYANT PATEL)
and
Date : 27/02/2012
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)

Appearance :

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

=========================================================

CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL

HONOURABLE MR.JUSTICE PARESH UPADHYAY

ORAL ORDER

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 regular bail.

3. We have heard Ms.Jadeja for the applicant and Ms.Shah, learned APP for the State.

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ORDER

4. It 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 13.9.2010 was passed by this Court, the matter was carried before the Apex Court and the Apex Court vide order dated 14.3.2011, observed for early hearing of the appeals. Thereafter, the matter was pressed for hearing before this Court. On 15.12.2011, this Court had passed the order for listing of all the appeals on 16.1.2012 and she submitted that since there are other co-accused who have preferred separate appeals before this Court, there is also appeal preferred by the State against acquittal and as number of advocates are appearing, for one reason or another, they are not remaining present and as a result thereof, the appeal of the appellant-applicant has not been finally heard. It has been submitted that under these circumstances, she may be permitted to address the Court on merits for suspension of sentence and regular bail since in her submission, the applicant by now is in jail for about last 8 years.

the applicant by now is in jail for about last 8 years. 5. We may state

5. We may state that the present applicant, at the first instance, had preferred Criminal Misc. Application No.11454 of 2009 which came to be dismissed by this Court on merits vide order dated 2.12.2009. Thereafter, once again, the

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ORDER

very applicant had preferred another application being Criminal Misc. Application No.9880 of 2010 and the same came to be dismissed vide order dated 13.9.2010. In the said order, it was observed thus:

and Mr. K.P. Public Prosecutor for the State. It may be recorded that the J.C.
and Mr.
K.P.
Public Prosecutor for the State.
It
may
be
recorded
that
the
J.C. Upadhyay, JJ), after considering
1. The
present
application
is

filed

“The present application has been preferred by the applicant-convict for suspension of sentence and for regular bail against the judgment and the order dated 10.09.2009 passed by learned Sessions Judge in Sessions Case No. 78 of 2005 with 77 of 2005 with 121 of 2005.

We have heard Mr. Pardiwala appearing

with Mr. Popat at length for the petitioner

Raval, learned Additional

very

applicant had earlier preferred Criminal Application No. 11454 of 2009 in Criminal Appeal No. 1755 of 2009 for the very relief of suspension of sentence and for regular

bail and this Court (Coram: R.R. Tripathi &

the

merits of the matter, rejected the said application by passing the following order dated 02.12.2009:

by

Viramdevsinh Nonghubha Jadeja, who is original accused No.6.

2. Heard learned advocate Mr.Bhargav Bhatt for the applicant. Learned advocate for the applicant argued the matter at length and tried to convince this Court that there is a case for grant of bail and suspending the sentence imposed by the learned Additional Sessions Judge, Rajkot by a common judgment and order dated 19.09.2009 passed in Sessions Case No.78 of 2004, 77 of 2005 and 121 of 2005. Learned advocate for the applicant submitted that so far as the present applicant is concerned, there

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ORDER

is thinner evidence than the evidence

available against any other accused in the case. He submitted that according

to

against him

deposition of PW-72 and PW-73. Learned advocate for the applicant strenuously

is in the nature of

him, the only evidence available

tried to convince this Court that PW-73 is a 'got-up witness' and that can be

appreciated

deposition of PW-73 is perused. In this

regard, he invited it is clear eyewitness at all. for the reasons best known to
regard,
he invited
it
is
clear
eyewitness at
all.
for
the
reasons
best
known
to
prosecution, it
has decided
subsequent
stage
i.e.
taking
deceased to the hospital.
2.1

not

if

the

evidence

attention of this

Court to paragraph 52, 53, 56, 57 etc.

of the deposition and submitted that if the same are taken into consideration,

that PW-73 was not an

He submitted that

the

to

examine the persons who were present at the place of occurrence and also at a

the

The learned advocate for the

applicant also assailed the evidence of PW-72 – complainant – the father of the deceased. He vehemently submitted that the witness had impaired eye-sight, and while deposing in the Court room, he was not able to identify the person standing in the accused-dock, though the distance was only 10 to 15 feet. Not only that, the learned advocate for the applicant invited attention of the Court 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 Be that as it may, the question

which is required to be considered by

the Court at this stage is, 'whether a

person

fledged trial by the learned Additional

Sessions Judge, released bail'.

be

who

is

convicted

is

after full-

to

required

2.3 Learned advocate for the applicant

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ORDER

also invited attention of the Court to the relevant part of the judgment wherein the learned Judge has recorded the reasons for recording conviction of the present applicant. The learned advocate also put a question mark on the veracity of identification of the present applicant.

2.2 that this factor is required this stage for applicant on bail. 2.3 Singh
2.2
that this
factor is
required
this stage
for
applicant on bail.
2.3
Singh

to

taken into consideration atleast

Learned advocate for the applicant

invited attention of the Court to the lie-detection test, which is referred to by the learned Additional Sessions Judge in paragraph 114 of the judgment at page 121. It is recorded that, 'all the ten accused were subjected to lie- detection test and the present applicant is the only one who is certified to have given correct answers. He submitted that, that fact should have been taken into

consideration by the learned Additional Sessions Judge in right perspective and should not have recorded the conviction of the present applicant. He submitted

be

at

releasing the present

Learned advocate for the applicant

relied upon decision of the Honourable

the Apex Court in the case of Kashmira

Vs.State of Punjab reported in

AIR 1977 SC 2147. The learned advocate

submitted that as was considered by the Honourable the Apex Court, the nature of the evidence available against the applicant is required to be considered while considering the case of the applicant for grant of bail. The law laid down by the Honourable the Apex

Court

is binding provided the Court

comes to

applicable to the facts of the case on hand.

the conclusion that it is

3. Learned

Mr.Sejpal besides

replying the contentions raised by the

A.P.P.

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ORDER

learned advocate for the applicant,

invited attention of the Court to the

fact that

facing another

punishable under Section IPC.

applicant is

an offence

the

the present

trial

for

302

of

3.1

At

this

juncture

the

learned

advocate

for

the applicant invited

attention of the Court that in to the present applicant, but, applicant is not able
attention
of
the
Court
that
in
to
the
present applicant, but,
applicant
is
not
able
to
have
3.2
the considered
opinion that
at
4. Having
found
no
grant
of
rejected. Rule is discharged.
the applicant,
it
is

bail, the application

that

case, the trial Court has granted bail

the

the

benefit of the same only because the applicant is convicted in the present case.

Be that as it may, the Court is of

this

stage all these aspects cannot be gone into and cannot be considered for grant of bail, in light of the fact that the applicant is convicted under Sections 302 and 120(B) of the IPC after full- fledged trial.

acceptable case for

is

5. At the request of learned advocate for

observed that

after six months, it will be open for the applicant to renew his request for bail. At the request of the learned advocate for the applicant. Registry is directed to expedite preparation of paper-book in the matter. ”

However, learned counsel appearing for

the

applicant

by

relying

upon

the

observations

made

in

paragraph

5

of

the

aforesaid order insisted for renewal of the

request for bail by the present application.

It

was

also

submitted

by

the learned

advocate

for

the

applicant

that

the

applicant is inviting a reasoned order in the present application for the suspension of sentence and for bail and, therefore, the

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ORDER

Hence we

have

appearing for the applicant on merits of the matter.

matter may be examined on merits.

the learned counsel

also

heard

settled that

releasing the accused on bail pending the

trial

sentence stand on slightly

different footing inasmuch as in the later, while suspending the sentence and releasing

It

is

by

now

well

and

releasing the

convict after

imposition of

very strict view of the exercising the into consideration. to the decision of this Court
very strict
view
of
the
exercising the
into consideration.
to the
decision
of
this
Court
Honourable Supreme Court
in
the
Vijay
Kumar
v.
Narendra and Ramji
364.

power for suspension

the convict on bail, the Court has to take a

matter while

of

sentence and for releasing the convict on

bail, and the seriousness of the offence and the nature of the crime have to be taken

Reference may be made

dated

20.04.2009 in Criminal Misc. Application No. 12893 of 2008 as well as the decision of the

of

Prasad

case

v/s. Rattan Kumar, reported in (2002) 9 SCC,

The contention of the learned counsel for the applicant even if considered, prima facie read with the judgment of the learned Sessions Judge, it does appear that the eye witness for involvement of the applicant is the father of the deceased himself and his presence is found as natural by the learned Sessions Judge while appreciating the evidence. Further, the said witness, who is an eye witness to the incident, has identified the applicant accused in the Court. The learned Sessions Judge based on the natural presence of eye witness PW. 72, found involvement of the applicant-accused to the incident of firing the deceased, has convicted the accused for offence punishable under section 302 of the IPC. The contention that the witness should be either wholly believable or wholly unbelievable or that even if partly disbelieved, there must be corroboration of the testimony, in our view, can be examined at the time of final hearing of the matter when evidence is to be appreciated or re-appreciated. Primafacie

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ORDER

when the learned Sessions Judge 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 take away the substratum of the case of the prosecution and attracting the power of this Court for suspension of sentence. If the evidence of the eye witness is otherwise believable as

section 302 would

stand proved against him and consequently the accused who has been convicted for offence punishable
stand proved against him and consequently
the accused
who
has
been convicted for
offence punishable under
hatching conspiracy with
section
302
for
others and
for
actively playing the role in shooting the
deceased would not fall in the case of
extraordinary category calling for
suspension of sentence and for releasing him
on regular bail.
The aforesaid is coupled
with the circumstances that earlier, this
Court
has declined
the application for
suspension of
sentence and
for regular
bail, as observed earlier.
Before parting,
we
would
like
to
observe that once an application for
suspension of sentence and for regular bail
has been rejected
by
this Court,
if
the
applicant or
convict
is aggrieved
by
the
said decision,
remedy
may
be available
before the higher forum;
however, to move
similar application for the same prayer and

entertaining thereof by the Court would call for consumption of time of the Court, which otherwise could have been spared for other litigants or convicts who are languishing in jail for a long time waiting for their turn

to come for final hearing.

that substantial time

since the learned

advocate addressed the Court at length on

merits of the matter.

we have heard him on merits and have passed this order on merits as apparent from the

We only observe that the practice

of moving bail application again and again after some time deserves to be deprecated with a view to see that time of the Court can be invested for other litigants or convicts who are awaiting for their turn to

We would say consumed for

is

hearing

of

the

matter

Inspite of the same,

record.

natural, offence under

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ORDER

come up for final hearing of their matter. We leave the matter at that stage.

In view of the above, we find that it is not a case where discretion is required

to be exercised for suspension of sentence

the

pending the appeal. Hence the present application is rejected”.

applicant on bail

and for releasing

passed the order on 14.3.2011 as under: “We have appearing for the parties. the petitioner
passed the order on 14.3.2011 as under:
“We
have
appearing for the parties.
the petitioner
at
this
stage.
six months
from
the
date
limit
given
by
us
observed”.
the appeals
were
taken
up
was passed by this Court:

6. It

appears that thereafter, the matter was

carried before the Apex Court and the Apex Court

heard learned counsel

We are not inclined to grant bail to

The

Special Leave Petition is, accordingly, dismissed. However, we request the High Court to disposed of the appeal within

of

communication of this Court. The time

shall be strictly

7. When

for hearing

thereafter, on 15.12.2011, the following order

“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 Mr.K.J.Shethna required hearing of the appeals on day-to-day basis for a number of

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ORDER

days. Learned A.P.P. submitted that the State has also filed acquittal appeals against six other accused persons and they are also required 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 January, 2012 itself. On 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 required to be disposed on priority basis. Accordingly, by consent, all the appeals with other connected appeals are ordered to be listed for final hearing on 16.01.2012” .

hearing. are being heard and the matters are notified as per age of the matter.
hearing.
are being heard and the matters are notified as
per age of the matter. All the group of the
present matters are also on Board today and the
matter
can
be
heard
finally. However, the
attempt
of
the
learned
advocate
for
the

appellant is that her matter be separated and

the appeals of other co-convict and the State

appeal against the order of acquittal be heard

subsequently. Such

be

that when

countenanced for

judgment and the order of the learned Sessions

Judge is common and when all appeals are listed

for final

the entire

matter is to be taken into consideration and the

attempt

cannot

the simple reason

hearing, the merits

of

8. Thereafter, all appeals are already listed for

9. We may state that final hearing of the appeals

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ORDER

appeals of each co-convict cannot be segregated as sought to be canvased. At the same time, when the appeals are already listed on Board, they are to be heard finally and the learned advocate have to conduct the matter simultaneously with all the co-appellant together with the appeals of other co-convict as well as appeal of the State against the order of acquittal for other original co-accused.

disposed of discharged.
disposed
of
discharged.

accordingly.

(JAYANT PATEL, J.)

10.Under the circumstances, when the appeals are already on the final hearing Board on today, we are not inclined to exercise the discretion for suspension of sentence and regular bail more particularly, when the present application is by way of successive bail application. However, it is observed that applicant shall cooperate for the final hearing of the matter.

Rule

11.Application

(ashish)

(PARESH UPADHYAY, J.)

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