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CR.MA/1347/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1347 of 2011
In
CRIMINAL
APPEAL No. 223 of 2007
=========================================
GOVAJI
MAFAJI - Applicant(s)
Versus
THE
STATE OF GUJARAT & 1 - Respondent(s)
=========================================
Appearance :
THROUGH
JAIL for Applicant(s) : 1,
MR. L.B.DABHI, APP for Respondent(s) :
1,
None for Respondent(s) :
2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 08/02/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
RULE.
Mr.
L.B.Dabhi, learned APP appears and waives service of notice of Rule
on behalf of the Respondent – State of Gujarat.
Having
regard to the facts of the case, the application is taken up for
hearing today.
The
Applicant – convict, who vide judgment and order dated
23.11.2006 rendered in Sessions Case No. 107 of 2006 by the learned
Additional Sessions Judge, Mehsana, has been convicted
for the offence punishable under Section 302, etc. of the Indian
Penal Code, has filed this Application through jail authority,
praying for suspension of sentence and to release him on regular
bail during the pendency and final hearing of the above numbered
Criminal Appeal. Alternatively, it is also prayed for expeditious
hearing of the above numbered Criminal Appeal.
Having
considered the submission advanced by Mr. L.B.Dabhi, learned APP for
the Respondent – State of Gujarat and upon perusal of the
judgment and order of conviction and sentence recorded against the
Applicant for the offence under Section 302 of IPC, we have noticed
that the case against the Applicant is based on testimony of minor
eyewitness Govindji and there is no reason to disbelieve his oral
testimony. Therefore, according to us, primafacie, the decision of
the trial Court convicting the Applicant under Section 302 IPC
cannot be regarded as erroneous at this stage.
The
Supreme Court in several recent decisions has cautioned the High
Courts that after conviction of an accused under section 302, the
relief of regular bail should not be granted by the High Courts.
Reference can be made to the decisions rendered in case of (1)
JADEJA AJITSINH NATUBHA AND ORS. Vs. STATE OF GUJARAT, 21 GLR 571,
(2) STATE OF HARYANA VS.HASMAT, (2004)6 SCC 175,(3) S.JEEVANANTHAM
VS. STATE THROUGH INSPECTOR OF POLICE, T.N. (2004) 5 SCC 230, (4)
STATE Represented By Inspector Of Police, Vigilance &
Anti-Corruption, Tiruchirapalli, T.N. Vs. V. JAYAPAUL (2004) 5 SCC
223 and (5) KISHORI LAL
Vs. RUPA AND OTHERS (2004) 7 SCC 638. Therefore, the prayer for
suspension of sentence and to release the Applicant convict on
regular bail during the pendency and final hearing of the above
numbered Criminal Appeal cannot be entertained.
So far as
alternative prayer for expeditious hearing of the above numbered
Criminal Appeal is concerned, this Court vide order dated 10.2.2010
rendered in Criminal Misc. Application No. 1263 of 2010 has turned
down the said prayer.
Seen
in the above context, none of the prayers can be granted.
For
the foregoing reasons, the application fails and accordingly it is
rejected.
Rule
is discharged.
(A.M.Kapadia,J)
(B.N.Mehta,J)
Jayanti*
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