(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) Rule.
Learned APP, Ms.Shah, waives service of rule on behalf of respondent-State.
Present application has been preferred by the applicant for suspension of sentence and regular bail.
We have heard Ms.Jadeja for the applicant and Ms.Shah, learned APP for the State.
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.
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 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:
"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 and Mr. K.P. Raval, learned Additional Public Prosecutor for the State.
It may be recorded that the 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 & J.C. Upadhyay, JJ), after considering the merits of the matter, rejected the said application by passing the following order dated 02.12.2009:
The present application is filed by Viramdevsinh Nonghubha Jadeja, who is original accused No.6.
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 is thinner evidence than the evidence available against any other accused in the case. He submitted that according to him, the only evidence available against him is in the nature of deposition of PW-72 and PW-73. Learned advocate for the applicant strenuously tried to convince this Court that PW-73 is a 'got-up witness' and that can be appreciated if the evidence - deposition of PW-73 is perused. In this regard, he invited attention of this Court to paragraph 52, 53, 56, 57 etc. of the deposition and submitted that if the same are taken into consideration, it is clear that PW-73 was not an eyewitness at all. He submitted that for the reasons best known to the prosecution, it has decided not to examine the persons who were present at the place of occurrence and also at a subsequent stage i.e. taking the deceased to the hospital.
2.1 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 who is convicted after full-fledged trial by the learned Additional Sessions Judge, is required to be released bail'.
2.3 Learned advocate for the applicant 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 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 that this factor is required to be taken into consideration atleast at this stage for releasing the present applicant on bail.
2.3 Learned advocate for the applicant relied upon decision of the Honourable the Apex Court in the case of Kashmira Singh 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 the conclusion that it is applicable to the facts of the case on hand.
Learned A.P.P. Mr.Sejpal besides replying the contentions raised by the learned advocate for the applicant, invited attention of the Court to the fact that the present applicant is facing another trial for an offence punishable under Section 302 of the IPC.
3.1 At this juncture the learned advocate for the applicant invited attention of the Court that in that case, the trial Court has granted bail to the present applicant, but, the applicant is not able to have the benefit of the same only because the applicant is convicted in the present case.
3.2 Be that as it may, the Court is of the considered opinion that at 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.
Having found no acceptable case for grant of bail, the application is rejected. Rule is discharged.
At the request of learned advocate for the applicant, it is 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 matter may be examined on merits. Hence we have also heard the learned counsel appearing for the applicant on merits of the matter.
It is by now well settled that releasing the accused on bail pending the trial and releasing the convict after imposition of sentence stand on slightly different footing inasmuch as in the later, while suspending the sentence and releasing the convict on bail, the Court has to take a very strict view of the matter while exercising the power for suspension 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 into consideration. Reference may be made to the decision of this Court dated 20.04.2009 in Criminal Misc. Application No. 12893 of 2008 as well as the decision of the Honourable Supreme Court in the case of Vijay Kumar v. Narendra and Ramji Prasad v/s. Rattan Kumar, reported in (2002) 9 SCC, 364.
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 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 natural, offence under section 302 would stand proved against him and consequently the accused who has been convicted for offence punishable under section 302 for hatching conspiracy with 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. We would say that substantial time is consumed for hearing of the matter since the learned advocate addressed the Court at length on merits of the matter. Inspite of the same, we have heard him on merits and have passed this order on merits as apparent from the record. 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 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 and for releasing the applicant on bail pending the appeal. Hence the present application is rejected".
It appears that thereafter, the matter was carried before the Apex Court and the Apex Court passed the order on 14.3.2011 as under:
"We have heard learned counsel appearing for the parties.
We are not inclined to grant bail to the petitioner at this stage. The Special Leave Petition is, accordingly, dismissed. However, we request the High Court to disposed of the appeal within six months from the date of communication of this Court. The time limit given by us shall be strictly observed".
When the appeals were taken up for hearing thereafter, on 15.12.2011, the following order was passed by this Court:
"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 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".
Thereafter, all appeals are already listed for hearing.
We may state that final hearing of the appeals 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 attempt cannot be countenanced for the simple reason that when judgment and the order of the learned Sessions Judge is common and when all appeals are listed for final hearing, the merits of the entire matter is to be taken into consideration and the 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.
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.
Application disposed of accordingly. Rule discharged.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) (ashish) Top