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CR.MA/8804/2008 3/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 8804 of 2008
=========================================================
SABBIR
@ KALU BIHARI @ REHMATALI @ RAJJAKBHAI FALUDAWALA
Versus
STATE
OF GUJARAT
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Appearance :
MR
IM MUNSHI for Applicant.
MR HL JANI, ADDL. PUBLIC PROSECUTOR for
Respondent.
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CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 09/07/2008
ORAL
ORDER
Rule. Mr. H.L.
Jani, learned Additional Public Prosecutor waives service of rule on
behalf of the respondent State. At the request of the learned
counsel appearing for the parties, this application is taken up for
hearing today.
By filing this
application, the applicant has prayed for regular bail under section
439 and 436A of the Code of Criminal Procedure, 1973 in respect of
Sessions Case No. 90 of 2005 pending before the City Civil &
Sessions Court, Ahmedabad which is in connection with DCB Police
Station C.R. No. I-13 of 2002 for offences punishable under section
202, 120(B) and 119 of the Indian Penal Code and 25(1)(A)(A), 27,
29(A)(B) of the Arms Act and sections 3,4 and 5 of the Explosive
Substance Act.
Learned advocate
for the applicant submitted that the learned Judge has not considered
the order dated 23.10.2007 passed by the High Court in Criminal
Revision Application No. 277 of 2007 wherein it is observed that the
trial Court may proceed with the case but in view of the fact that
the revision application is pending before this Court, it is expected
that the trial Court would not conclude the trial. Learned advocate
submitted that because of the inordinate delay caused by the
prosecution, the matter has not proceeded and as a result of it, the
applicant has suffered a lot. It is submitted that the applicant has
remained in judicial custody for a long period and therefore, even
considering the long period the applicant has remained in judicial
custody, the applicant is required to be released on bail. Learned
advocate further submitted that considering the provisions of section
436A and 439 of the Code of Criminal Procedure, it is a fit case to
release the applicant on regular bail as prayed for in the
application.
On the other
hand, learned Additional Public Prosecutor, Mr. H.L. Jani, placing
reliance on the order dated 14.05.08 passed by learned Additional
Principal Judge, Court No.2, Ahmedabad submitted that defence
witnesses were not examined by the defence side and, therefore, delay
was caused in concluding the trial. He further submitted that there
was no fault on the part of the prosecution in causing the delay.
Learned advocate placed reliance on the aforesaid order dated
14.05.08 passed in Criminal Misc. Application in Sessions Case No. 90
of 2005, a copy of which is produced at pages 22-23 of the present
compilation, more particularly paragraph 2 of the order, in support
of his submission that depositions of the witnesses and panch
witnesses were over, and the matter is at the argument stage. In
view of the aforesaid facts and circumstances, there is no reason to
interfere with the order of rejection passed by the learned Sessions
Judge and the application deserves to be dismissed.
Heard learned
advocate Mr. Munshi for the applicant and Mr. Jani, learned APP for
the State at length and in great detail. I have also perused the
averments made in the application as well as the aforesaid reasoned
order passed by the learned Additional Principal Judge, Ahmedabad.
In paragraph 2 of
the order dated 14.05.2008, the learned Judge has observed as under:
?SHaving
considered the rival submissions, I find considerable merits in the
submissions of Shri. Prajapati, L. Addl. P P for the State. The
defence witnesses were sought to be examined in terms of the
statement of accused recorded under section 313 of Criminal Procedure
Code which was recorded on 21.11.2007. Subsequent thereto, in
numerable dates of hearing have passed on which there was no progress
on account of the fact that defence witnesses have not been examined
for one reason or other. In my opinion, therefore, no ground exists
at least at this juncture, as would entitle the applicant to grant of
bail, more particularly, in light of the grave and serious charges he
faces. Hence, application stands rejected.??
In view of the
aforesaid, it becomes clear that the defence witnesses were not
examined, and therefore the delay was caused in conclusion of the
trial, and there was no fault on the part of the prosecution in
prolonging the trial.
It is strongly
contended by learned advocate for the applicant that in view of the
stay is granted by this Court in Criminal Revision Application No.
277 of 2007 which is pending before this Court, the Sessions Case
could not proceed and there is no fault on the part of the defence
side in causing the delay in proceedings. This submission also is
bereft of any merit. If stay operates because of the pendency of
Criminal Revision Application, then it is for the applicant to move a
proper application to get the stay vacated so as to see that the
trial proceeds. The said grievance can neither be ventilated nor
redressed in the present proceedings.
Learned advocate
vehemently argued that in view of the provisions of section 436A of
Cr.P.C., the applicant is required to be released on bail.
Section 436A of
Cr.P.C. reads as under:
?S436A. Maximum
period for which an undertrial prisoner can be detained.- Where a
person has, during the period of investigation, inquiry or trial
under this Code of an offence under any law (not being an offence for
which the punishment of death has been specified as one of the
punishments under that law) undergone detention for a period
extending upto one-half of the maximum period of imprisonment
specified for that offence under that law, he shall be released by
the Court on his personal bond with or without sureties.??
There cannot be
any dispute about the provisions contained in section 436A of Cr.P.C.
However, the explanatory clause to the said section states that the
period of detention passed due to delay in proceeding caused by the
accused shall be excluded. Considering the said explanatory clause
vis-a-vis the observations made by the learned Additional that ?Sin
numerable dates of hearing have passed on which there was no progress
on account of the fact that defence witnesses have not been examined
for one reason or other??, the benefit of this section cannot be
given to the applicant. In the present case, the trial is almost
concluded and the matter is at the stage of arguments. In the
circumstances, in my considered view, no interference is called for.
It is also
observed by the learned Judge in the aforesaid order dated 14.05.08
that on earlier occasions, regular bail applications have been
rejected by the City Sessions Court as well as the High Court and
even applications of similar nature seeking bail have also been
rejected by the predecessor City Sessions Judge and no relief for
bail was granted. In the circumstances also, I do not find any
substance in the present application.
Save and except
the above mentioned submissions, no other submissions have been
canvassed by the learned advocate for the applicant.
In view of the
above facts and circumstances and for the foregoing reasons, this
application is thoroughly misconceived and without any substance, and
no interference is called for with the reasoned order passed by the
learned trial Judge.
In the result,
this application is rejected. Rule is discharged.
mathew [H.B.ANTANI,
J.]
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