(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) The present application has been preferred by the applicant-convict for temporary bail on the ground that he wants to see the well being of his newly born child and his wife who has been operated for caesarean.
Pursuant to the earlier order passed by this Court, learned APP based on the instructions received by her from Divisional Police Officer, Botad states that the wife of the convict was operated and the child is born but, as per the Doctor, child is healthy and the treatment can be provided as an outdoor patient.
It appears that earlier, the convict had made application for temporary bail through jail being Criminal Misc. Application No.1653 of 2012 and the same was not granted by this Court vide order dated 15.2.2012 but it was observed that convict may apply for temporary bail after the delivery of his wife. Under the circumstances, it may be a case to consider.
However, it is brought to our notice that the convict is undergoing sentence in respect of two cases. One is pursuant to the dismissal of the appeal by this court being Criminal Appeal No.741 of 2003 against which the Special Leave Petition was preferred before the Apex Court and the Apex Court has dismissed the Special Leave Petition on 18.12.2009. Therefore, the said case in which the sentence has been imposed upon him is over.
Whereas, the present appeal being Criminal Appeal No.234 of 2009 is from a different case and different crime and the said appeal is pending before this Court. The power for grant of temporary bail in Criminal Appeal No.234 of 2009, as the appeal is pending, can be considered by this Court but in a case where the appeal is dismissed, namely, Criminal Appeal No.741 of 2003 against which the Apex Court has also dismissed the Special Leave Petition and the judgment has become final, in normal circumstances, it would be for the convict who is undergoing the sentence to apply for parole, if there is genuine ground for such purpose.
However, as the observations were made earlier by this Court that the convict may apply for temporary bail after delivery to his wife and in view of this peculiar circumstances, the convict may be released for a limited period under the police escort. The learned counsel for the applicant has declared before the Court that the applicant is ready to bear the expenses of the police escort. Henceforth, if any genuine ground is there for temporary bail or parole, it will be required for the applicant to apply to the competent authority, who has power to sanction parole as well as to this Court in the respective matters. It is only after the parole and temporary bail both are granted, the jail authority would be required to act upon it.
Under the circumstances, subject to the aforesaid observations and directions, the applicant be permitted to see his wife and newly born child for a period of 2 days under the police escort at his cost of one armed ASI and 2 armed constables with the direction that it will be the duty of the Escorting Officer to see that upon the expiry of the period of 2 days the applicant is lodged with the jail authority. After the amount of cost is deposited the aforesaid directions shall be implemented. It is also observed and directed that henceforth, the applicant will be required to apply for parole in a case where the sentence is being undergone by him for which no proceedings are pending and in this Court for temporary bail in Criminal Appeal No.234 of 2009, provided such case is made out for such purpose. It is also observed that as and when such applications are made, the matter shall be independently examined in accordance with law.
The office shall place the copy of the present order as and when any application for temporary bail is filed in Criminal Appeal No.234 of 2009 by the applicant.
Application allowed to the aforesaid extent. Rule made absolute. Direct service.
(JAYANT PATEL, J.) (PARESH UPADHYAY, J.) (ashish) Top