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CR.MA/7239/2008 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 7239 of 2008
In
CRIMINAL
APPEAL No. 1149 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.R.VORA
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
MOHAMMAD
HANIF ABDUL RAZZAQ SHAIKH - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
AFTABHUSEN ANSARI for Applicant
MR JAYANT M PANCHAL SPL.PP for
Respondents
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.R.VORA
and
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 23/06/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE M.R. SHAH)
RULE.
Mr.Jayant M. Panchal, learned Special Public Prosecutor waives the
service of notice of rule for the respondents.
Present
application has been filed by the applicant/ convict ? original
accused named Mohammad Hanif Abdul Razzaq Shaikh for releasing him
on temporary bail for a period of four weeks.
It
is submitted by the applicant in the application that the wife of
the applicant has recently died leaving behind her four minor
children having their age between 6 and 13 years and there is no one
at home who can take care of his children.
Mr.Panchal,
learned Special Public Prosecutor appearing for the respondents has
submitted that the applicant has been convicted for the offences
punishable under sections 3(1), 3(3) of the Prevention of Terrorism
Act (?SPOTA?? for short) read with secs.120-B and 307 of Indian
Penal Code, under sec.3 of the Prevention of Damages to Public
Property Act, under sec.4 of the Explosive Substances Act and under
sec.135(1) of the Bombay Police Act. It is submitted by him that
the applicant is also involved in another case under POTA which is
pending before the POTA Court.
He
has further submitted that the applicant has made false statement
in the application to the effect that there is nobody who can take
care of his children. It is submitted that the statement of the
brother of the applicant is recorded which is placed on record, and
as per the said statement, the minor children of the applicant are
being taken care of by the brother and sister of the applicant. It
is also submitted by Mr.Panchal, learned Special Public Prosecutor
that even the applicant has not disclosed true facts in the
application to the effect that earlier when the applicant was
released on temporary bail, he was released with police escort to
attend the funeral ceremony of his wife. It is submitted by him that
an order under sec.268 of the Code of Criminal Procedure is passed
against the applicant by which an order is passed for conducting
the trial of the accused in jail. By making above submissions, it
is requested to dismiss the present application.
Mr.Ansari,
learned advocate appearing on behalf of the applicant is not in a
position to dispute the statement made by the brother of the
applicant to the effect that the brother and sister of the
applicant are taking care of the children of the applicant. He has
also submitted that there is no deliberate intention on the part of
the applicant to suppress the fact that earlier the applicant was
released with police escort to attend funeral ceremony of his wife.
At
the outset, it is required to be noted that the applicant has been
held guilty and convicted for the offences punishable under sections
3(1), 3(3) of the Prevention of Terrorism Act read with secs.120-B
and 307 of Indian Penal Code, under sec.3 of the Prevention of
Damages to Public Property Act, under sec.4 of the Explosive
Substances Act and under sec.135(1) of the Bombay Police Act, and
is sentenced to undergo R.I. for a period of 10 years vide
judgement and order dtd.15/5/2006. It is also required to be noted
that the applicant is also involved in another POTA Case which is
pending before the POTA Court and in that case he is not enlarged on
bail. It is also required to be noted that even an order has been
passed under sec.268 of the Code of Criminal Procedure by which it
is ordered to conduct the trial of the applicant in jail. Even
otherwise, as per the statement of the brother of the applicant
which is on record, the children of the applicant are being taken
care of by the brother and sister of the applicant. Therefore, the
statement of the applicant that there is nobody to take care of his
children is not correct.
For
the reasons stated hereinabove, the applicant cannot be released on
temporary bail. The application deserves to be dismissed and is
accordingly dismissed. Rule is discharged.
[J.R.
VORA, J.]
[M.R.
SHAH, J.]
rafik
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