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CR.MA/5341/2011 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 5341 of 2011
In
CRIMINAL
APPEAL No. 147 of 2006
=========================================================
KALU
ALASHIBHAI - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
THROUGH
JAIL for
Applicant(s) : 1,
MR KARTIK PANDYA, APP for Respondent(s) :
1,
RULE SERVED for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
and
HONOURABLE
MR.JUSTICE P.P.BHATT
Date
: 12/05/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. Rule
was issued on 25.04.2011 returnable on 29.04.2011. A certificate
dated 28.04.2011 was produced under the signature of Dr.S.Napoleon
Singh, wherein it is mentioned that:-
“….. Again he
was referred to Civil Hospital Ahmedabad, psychiatric Dept. for
follow up on 27/04/2011 and he was examined by Dr.M.N.Parikh (P
Psychiatric, H.O.U., Unit-I)
On examination:
Patient
pays fluctuating attention to the examiner.
Is
mute.
Occasionally
follows verbal commands.
Patient
does not answer relevantly, even with gestures.
He was advised
antipsychiatric medicines for 15 days and advised follow up after 15
days.
This certificate is
issued on the basis of available case papers at central jail
dispensary.”
2. On
29.04.2011, the Court asked Dr.S.Napoleon Singh to explain to the
Court the meaning of the remarks made in the certificate, viz.
“patient was found conscious and not fully oriented”.
The matter was then adjourned to 04.05.2011 so as to find out whether
the release of the convict will cause any burden to the family.
2.1 On
04.05.2011, the matter was adjourned to 11.05.2011. Along with
communication dated 01./03.05.2011, a statement of the convict was
produced. The Court, prima facie, found the conclusions mentioned by
the Doctor on the basis of the record, liable to be verified and
therefore, on 11.05.2011, the jail authorities were directed to
produce the convict before the Court.
3. Today,
the convict is present before the Court. The Court put various
question to him and he replied the same in detail. To the utmost
surprise of the Court, none of the observations made by Dr.M.N.Parikh
is noticed in the behaviour of the convict. This Court, in
interaction with the convict and taking into consideration his
response to the queries made by the Court, deemed it proper to
discuss the matter with Doctor as well as Jail Officer.
3.1 Dr.S.Napoleon
Singh along with Senior Jailor Shri Vankar remained present before
the Court. The matter was taken up in chamber.
3.2 Dr.S.Napoleon
Singh talked to the patient-convict on various points and then stated
that, ‘he is of the opinion that the observations made by
Dr.M.N.Parikh are not found to be present in the convict’. But them
he stated that, ‘this may be because of medication’.
3.3 Senior
Jailor Mr.Vankar also talked to the convict. He stated that it is
true that the convict does not talk to other inmates in jail, but the
convict does talk to him, may be because the other inmates brand him
as a ‘mental case’, by which he may getting disturbed.
3.4 The
convict stated that when he was at Jamnagar jail, he was not having
any problem which are faced by him in Ahmedabad Jail. Besides
everything, he is able to convey to this Court that while he was in
Jamnagar jail, it was convenient for his father and minor son, who is
aged 11 years to visit him. He stated that when he was arrested on
02.07.2003, at that time, his son was hardly 3 years old. He stated
that it is very inconvenient for his father and son to visit him in
Ahmedabad jail. He also conveyed to this Court that this not only
troubles them but to him as well. He is also able to remember and
convey to this Court that, once when his father and minor child were
coming to visit him in jail, while crossing the railway lines, his
father had fallen on the railway track and his life was saved by one
Army Personnel and when they narrated this incident to the convict,
he had sleepless night.
4. All
this narration is suggestive of the fact that the observations made
by Dr.M.N.Parikh, Psychiatric are not present in the conduct of the
convict. While this Court is not to record any finding about the
state of health of the convict, the Court will definitely like to
refer the case to the Civil Surgeon for being examined by a team of
experts. But, that exercise should be undertaken not at Ahmedabad,
but at some other station.
5. Taking
into consideration the fact that the convict was comfortable in
Jamnagar jail, his presence at Jamnagar will be causing less trouble
to the family, in turn it will give some psychological respite to the
convict, it is ordered that the convict be transferred from Ahmedabad
Central Jail to Jamnagar Jail, on his return from temporary bail
which is granted by this very order.
6. Taking
into consideration the facts of the case and taking into
consideration the fact that in the year 2006, he was granted furlough
and he had reported in time, but when he was granted furlough in the
year 2008, he absconded for 787 days, for which he has given an
explanation that, ‘as his wife had expired, his parents being aged,
there was nobody to take care of his child and therefore, he was
residing at his own place’, the Court is of the opinion that he can
be granted temporary bail.
7. Accordingly
the application is allowed. The applicant-convict is ordered to
be released on temporary bail for a period of 45 days from the
date of his release, on his executing a personal bond of Rs.5,000/-
(Rupees Five Thousand Only) to the satisfaction of the Jail
authorities.
In
view of the fact of his absconding, the convict shall mark his
presence at the ‘Bhatiya’ Police Chowki on every Monday between 08.00
am to 12.00 pm.
8. The
applicant shall surrender to the Jail authorities on expiry of the
temporary bail period.
9. Rule is made
absolute.
Taking
into consideration the aforesaid facts, Registry is directed to
notify the Criminal Appeal for final hearing in the week commencing
from 20.06.2011.
(Ravi
R.Tripathi, J.)
(P.P.Bhatt,
J.)
*Shitole
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