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CR.MA/12501/2008 2/ 2 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 12501 of 2008
In
CRIMINAL
APPEAL No. 1906 of 2006
========================================================
SANJAY
VINUBHAI PATEL - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
========================================================
Appearance :
MR
EE SAIYED for Applicant(s) : 1,MR HRIDAY BUCH for Applicant(s) :
1,
MR KC SHAH, APP for Respondent(s) :
1,
========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 17/11/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE A.L.DAVE)
This
is a successive bail application preferred by the applicant for
suspension of sentence and release on bail, mainly on the ground that
the trial Court committed an error in convicting the applicant for an
offence punishable under Section 395 of Indian Penal Code , while
acquitting the rest of the accused. In support of this application,
reliance is placed on the decision of the Apex Court reported in AIR
1998 SC 1220 Om Prakash & Anr. V/s.State of Rajasthan.
Learned
advocate Mr.Buch for the applicant submitted that the applicant is
sentenced to undergo rigorous imprisonment for 10 years, out of which
he has already undergone 3 years, and when the conviction under
Section 395 is not legally sustainable, the Court may reconsider the
question of suspension of sentence and the grant of bail.
Consciously,
we are not entering into the merits of the case against the
applicant, the earlier application of the applicant having been
rejected by earlier Bench on merits and as a consequence what
emerges is that the question of robbery with hurt cannot be
considered again at this stage by us for granting of bail. They have
to be accepted as held by the trial Court. The consequence would be
that even if as contended by the learned advocate for the applicant
is accepted, the offence would fall under Section 394 of the IPC,
which may be of lesser gravity, but which is punishable with
imprisonment for life. Involvement of the applicant in the offence
and finding thereon by the trial Court, still stand as it is. We are,
therefore, of the view that the successive application cannot be
entertained either on the question of law or on the question of fact.
The application therefore stands rejected. Notice is discharged.
(A.L.DAVE,
J.)
(J.C.UPADHYAYA,
J.)
(binoy)
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