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CR.A/1288/2004 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1288 of 2004
===================================
IDRISKHAN
YAKUBKHAN PATHAN - Appellant
Versus
THE
STATE OF GUJARAT - Opponent
===================================
Appearance
:
MR JB PARDIWALA for Appellant.
MR
KT DAVE, APP for Opponent.
===================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 08/01/2007
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
The appellant ?
original accused has filed this appeal under Section 34 (1) (4) of
the Prevention of Terrorism Act, 2002 (for short ‘POTA’) against the
order dated 07.07.2004 passed by the Designated Judge, Special Court
(POTA), Ahmedabad below Criminal Misc. Application No. 1727 of 2004
in Pota Case No. 08 of 2003 arising out of the complaints, namely, I
C.R. No. 184 of 2002 registered at Kagdapith Police Station, I C.R.
No. 116 of 2002 registered at Vejalpur Police Station and I C.R. No.
244 of 2002 registered at Satellite Police Station, for offences
punishable under Sections 120-B, 307, 337, 286 of IPC, read with
Sections 3, 4 & 6 of Explosive Substances Act and under Sections
3 (3), 4, 20, 21(2)(b) and 22(3) of the POTA. The appellant ?
original accused has prayed for quashing and setting aside the said
order and has further prayed for his release on bail in connection
with the said POTA case.
Mr. Jal Unwala,
learned advocate appearing for Mr. J. B. Pardiwala for the appellant
has made a statement at the bar that the appellant ? original
accused has been acquitted from the charge of offences levelled
against him in Pota Case No. 08 of 2003 and hence, this appeal has
become infructuous.
He has, however,
submitted that the appellant ? original accused has also filed
Criminal Appeal No. 1287 of 2004 against the order dated 07.07.2004
passed by the Designated Judge, Special Court (POTA), Ahmedabad
rejecting Criminal Misc. Application No. 1726 of 2004 seeking his
bail in connection with C.R. No. 06 of 2003 in Pota Case No. 12 of
2003 under Sections 120-B, 121, 121-A, 122, 123 of Indian Penal Code
and under Sections 3(1)(a)(b), 3(3), 4, 20, 21(2)(b), 22(2) of Pota
and under Sections 25(1)(b), (c), 27 & 29 of the Arms Act. He
has further submitted that the said appeal, through oversight, came
to be dismissed on 21.09.2004 by this Court, as the order was
intended to be passed in Criminal Appeal No. 1288 of 2004 and not in
Criminal Appeal No. 1287 of 2004. He has, therefore, submitted that
the appellant ? original accused is still in jail in connection
with Pota Case No. 12 of 2003 and he may be heard in respect of his
appeal preferred against rejection of his bail application in
connection with Pota Case No. 12 of 2003.
After having heard
learned advocate appearing for the appellant and Mr. K.T. Dave,
learned Additional Public Prosecutor appearing for the respondent ?
State of Gujarat, we are of the view that since the appellant ?
original accused has been acquitted from the charge of offences
levelled against him in Pota Case No. 08 of 2003, the present appeal
arising out of the order rejecting his bail application in Pota Case
No. 08 of 2003 has become infructuous and it no longer survives.
This appeal is accordingly dismissed as having become infructuous
and is of no survival value.
It is, however, open
for the appellant ? original accused to take appropriate
proceedings seeking his release on bail so far as Pota Case No. 12
of 2003 is concerned. It is relevant to observe here that while
dismissing Criminal Appeal No. 1287 of 2004 on 21.09.2004, this
Court has observed that since the trial has already commenced and
substantial part of the evidence is recorded, there was no reason to
accept the said appeal and grant the relief claimed therein. In
view thereof, on this short question, the said appeal was dismissed.
If these observations are made keeping in mind Pota Case No. 08 of
2003 and not Pota Case No. 12 of 2003, the appellant ? original
accused can take appropriate proceedings that may be advised.
Subject to the above
observation, this appeal is accordingly dismissed.
[A.
M. KAPADIA, J.]
[K.A.
PUJ, J.]
Savariya
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