(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The present application has been preferred by the applicant for suspension of sentence and regular bail.
We have heard Mr.Saiyed for the applicant and Mr.Pandya, learned APP for the State.
It is an undisputed position that when the appeal came to be initially filed and considered by this Court at the time of admission, simultaneously, the very applicant together with the other co-convict had preferred Criminal Misc. Application No.2976/10 in Criminal Appeal No.500/10 for suspension of sentence and regular bail.
This Court (Coram : A.L.Dave & Bankim Mehta, J.J.) vide order dated 09.04.2010 had passed the following order -
"Heard learned advocate Ms Shah for the applicants and learned APP Mr Parikh for the respondent - State.
2. Ms Shah has taken us through those pieces of evidence which are relevant, according to her, particularly, the evidence of PW-1, PW-4, PW-5 and the Doctor's evidence. PW-1, PW-4 and PW-5 claim to be the eye-witnesses. PW-1 and PW-4 have not supported the prosecution case and they do not speak of presence of PW-5. Ms Shah, therefore, contended that presence of PW-5 may be treated as doubtful. The prosecution case hangs mainly on evidence of PW-5 and, therefore, would call for a close scrutiny. Ms Shah submitted further that PW-5 in his evidence has indicated that they saw the accused persons walking down to the place, whereas as per the other evidence of the prosecution, the accused persons came to the spot on a motor-cycle. Apart from that, according to Ms Shah, PW-5 has improved and exaggerated the version while deposing before the Court and the version given by him while giving the statement. PW-5 has not given the names of the assailants nor details about the incident while giving history to the Doctor. Ms Shah submitted that the evidence led by the prosecution becomes doubtful on positioning of the assailants and the victim considering the entry and exit wounds caused by the pallets or bullets. The evidence of the eye-witnesses could be disproved in light of this medical evidence. She, therefore, submitted that the sentence imposed by the trial Court may be suspended and the applicants be admitted to bail pending the appeal.
3. The application is opposed by the learned APP.
4. All the arguments canvassed by Ms Shah relate to the merits of the case and call for appreciation of evidence, which can be done at the final hearing stage of the appeal and not at this stage of suspension of sentence and grant of bail. It would otherwise result into preempting the decision in the appeal. The applicants were not on bail during the trial. Under the circumstances, we are not inclined to entertain this application.
5. Incidentally, the jail report indicates that the applicant No.2 is involved in as many as six other cases, one of which relates to the offence under the Arms Act. Two offences are punishable under Section 332 of IPC whereas the other offences are under the Prisons Act and Section 188 of IPC. The conduct of the applicants is reported to be bad in the prison. The chances of the applicants getting involved in the other offence after being released on bail following suspension of sentence cannot be ruled out and, therefore, also this Court is of the view that no case is made out for suspension of sentence and grant of bail.
6. The application, therefore, stands rejected. Notice is discharged."
In view of the aforesaid, the present application being a successive bail application, deserves to be rejected. However, Mr.Saiyed, learned counsel appearing for the applicant additionally attempted to contend that the case of the applicant herein was not duly argued or segregated when the earlier order dated 09.04.2010 came to be passed. Therefore, it was submitted that this Court may once again consider the said aspects. He additionally contended that there are certain physical ailments occurred during the period when the applicant remained in jail of multiple lipomas over the body and therefore, he submitted that keeping in view the said aspect, this Court has also released the applicant on temporary bail subsequently, vide order dated 09.12.2011 passed in Criminal Misc. Application No.16520/11 and it was submitted that the period to surrender is expiring on 13.02.2012 and in the meantime, the present application has been preferred for suspension of sentence and regular bail. Therefore, in the submission of the learned counsel for the applicant, such being change in the circumstance, this Court may consider the matter for suspension of sentence and regular bail.
As such, the perusal of the order dated 09.04.2010 passed by this Court, reproduced hereinabove, shows that the matter was argued fully for suspension of sentence and regular bail and the matter also came to be considered by the Court accordingly. The reason being that the evidence of various prosecution witnesses have been referred to by the Court while considering the submissions. Therefore, it cannot be said that the case was not considered separately for accused no.1 or accused no.2 as sought to be canvassed. In any case, we are not sitting in appeal over the order dated 09.04.2010 passed by this Court earlier for suspension of sentence and regular bail.
The attempt made to canvass the change in circumstance is also misconceived inasmuch as when the applicant has already been released on temporary bail, such can hardly be said as change in circumstance. If such a type of sickness or any other physical ailment of such type is considered as change in circumstances, it will result into allowing the convicts whose appeals are pending to reopen the question of suspension of sentence and regular bail which in our view cannot be permitted. Hence, there is no reason to reconsider the aspect on merits for suspension of sentence and regular bail which came to be rejected vide order dated 09.04.2010.
Under the circumstances, the present application is meritless and hence, dismissed.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) *bjoy Top