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CR.MA/13821/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 13821 of 2010
In
CRIMINAL
APPEAL No. 2333 of 2006
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
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 ?
=========================================================
RAHIMKHAN
@ FIROZKHAN BADARKHAN PATHAN,THRO' KUBRABIBI W/O - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
AFTABHUSEN ANSARI for
Applicant(s) : 1,
MR JAYANT PANCHAL, SPL PUBLIC PROSECUTOR for
Respondent(s) : 1,
None for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 29/11/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE A.M.KAPADIA)
Rule.
Mr. Jayant Panchal, learned Special Public Prosecutor 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 prisoner Rahimkhan @ Firozkhan Badarkhan
Pathan, who, by judgment and order dated 23.11.2006 rendered in POTA
Case No.6 of 2004 by the learned Special Judge, POTA, City Sessions
Court, Ahmedabad has been convicted for the offence punishable under
Section 120-B of the Indian Penal Code, under sections 3(2), 3(3)
and section 4 read with section 3(3) of POTA and under section 3 of
the Explosive Substances Act and sentenced to rigorous imprisonment
for 10 years, has filed this application, praying to enlarge him on
temporary bail for a period of 3 weeks, to enable him to attend
‘Hakika’ ceremony of his son and marriage ceremony of his nephew,
which is to be scheduled on 5.12.2010.
We
have considered the submissions advanced by MR. Aftabhusen Ansari,
learned advocate for the applicant and Mr. Jayant Panchal, learned
Special Public Prosecutor for the respondent – State of
Gujarat. We have also perused the averments made in the application
along with annexures annexed therewith and also gone through the
jail remarks sheet as well as police report along with statements of
the witnesses recorded by the police officers.
Upon
perusal of the jail remarks sheet, we have noticed that the
applicant has undergone total period of 3 years 11 months and 5 days
imprisonment as against the imprisonment for 10 years. So far as
police report is concerned, it is inter alia stated therein that if
the applicant is released on temporary bail, then in all
probability, he shall be likely to be flee away and absconded. That
apart, so far as the marriage of the nephew is concerned, in all
there are 8 male members including the present applicant.
Therefore, presence of the applicant is not absolutely indispensable
at the time of performing of the marriage ceremony of his nephew.
So far as ‘Hakika’ ceremony is concerned, it can be performed at any
time prior to marriage of the son whose ‘Hakika’ ceremony is
scheduled. Therefore, the said ceremony can be postponed even for
number of years till the marriage of the son. It is also required
to be noted that application has not been enlarged on bail on any
occasion. It may be noted that the application has enjoyed furlough
leave on three occasions. Therefore, there is no difficulty even to
perform the ‘Hakika’ ceremony when he will be granted next furlough
leave by the police authority. Therefore, according to us,
applicant’s presence is not at all required at the time of
performing the marriage of the nephew as other seven brothers of the
applicant are already outside the jail and the ‘Hakika’ ceremony can
be performed at any time prior to the marriage of the son and which
can be performed earlier also when he will be granted next furlough
leave.
In
view of this, we are not inclined to release the applicant on
temporary bail for a period of 3 weeks on the grounds stated by the
applicant in the application.
For
foregoing reasons, the application fails and it is accordingly
rejected. Rule
is discharged.
The
communication sent by the Assistant Commissioner of Police (Crime
Branch), Ahmedabad City addressed to the Special Public Prosecutor,
Gujarat High Court along with report submitted by the PSI, Crime
Branch, Ahmedabad City addressed to the Assistant Commissioner of
Police (Crime Branch), Ahmedabad City along with statements of the
witnesses shall be taken on record of the case.
(A.M.KAPADIA, J.)
(BANKIM.N.MEHTA, J.)
shekhar/-
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