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CR.MA/3421/2010 5/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3421 of 2010
In
CRIMINAL
APPEAL No. 1887 of 2008
=========================================
SEVLAM
SHASHI RAJARAM AMBALAL - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance
:
MR
AV NAIR for Applicant(s)
MR LB DABHI Ld. APP for Respondent(s) :
1,
=============================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 08/04/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
1. Rule.
Mr LB Dabhi learned APP waives service of rule on behalf of the
respondent-State.
2. The
present application has been preferred by the applicant-convict for
suspension of sentence and regular bail.
3. Heard
Mr AV Nair learned advocate for the applicant-convict.
4. Before
we proceed to consider the contentions raised by the learned
advocate for the applicant, the past conduct of the applicant
deserves to be recorded. At the time, when the appeal was admitted by
this court on 2.9.2008, the following has been recorded:
Learned
advocate for the appellant does not press the request for releasing
the appellant on bail during the pendency of Criminal Appeal. Hence,
the request stands dismissed as not pressed.
5. Thereafter,
Criminal Misc. Application No. 111/2009 was preferred for temporary
bail of 30 days on the ground that the mother of the applicant is
suffering from cardiac failure and the following order was passed by
this Court on 27.1.2009:
Realising
that the Court is not inclined to entertain the application
considering the two different medical certificates produced by the
applicant, learned Advocate for the applicant seeks permission to
withdraw this application. Permission is granted. The application is
rejected as withdrawn.
6. Again
another application being Criminal Misc. Application No. 3142/2009
was also preferred for temporary bail of 60 days by another advocate
and the same was considered on 17.4.2009 by this Court and the
following order was passed:
Pursuant
to the order passed by this Court on 20.3.2009, the Commissioner of
Police, Vadodary City, sent the Fax Message to the Superintendent of
Police, Madurai Rural, Madurai, seeking information regarding the
applicant. Today, learned APP has produced report received from the
Superintendent of Police, Sivagangal, which is taken on record. In
view of the said report, no case is made out to release the applicant
on temporary bail. Hence, this application is rejected. Rule
discharged.
7. Thereafter,
another application being Criminal Misc. Application No. 12569/2009
was also preferred for regular bail by suspension of the sentence and
the said application was heard on 26.11.2009 and the following order
was passed:
Learned
advocate Ms. SG Patel appearing for the applicant seeks permission to
withdraw this application for regular bail on instructions from her
client. Permission is granted. Petition is disposed of as
withdrawn.
8. It
appears that, thereafter, once again another application being
Criminal Misc. Application No. 13449/2009 was preferred by the
applicant for releasing him on temporary bail for a period of six
months by suspension of sentence on the ground of performance of his
marriage and making preparation of the marriage. The aforesaid
application came to be considered by this court on 2.12.2009 and the
following order was passed. The relevant paragraphs of which reads as
under:
4. The
Court is not able to restrain itself from recording the fact that the
present application is filed soon after withdrawing the earlier
application only on 26.11.2009. Today it is 02.12.2009. The Court
also is of the opinion that the prayer made in this application is
novel and hence, it is reproduced hereunder:-
15. [B] Your
Lordships may be pleased to pass order suspending sentence and
enlarge /release the applicant on temporary bail for 6 months [six
months] on the ground of performing his marriage and making
preparation for marriage and for going to honey-moon and for being
with his newly weeded wife sufficiently reasonable time, in
connection with the order of conviction dated 26.3.2008 passed by
Hon’ble the Additional Sessions Judge, Fast Track Court No.8, Baroda,
in Sessions Case No.70 of 2006, on such terms and conditions as may
be deemed just and necessary by this Hon’ble Court. (emphasis
supplied).
The
Court has come across such a prayer for the first time.
5. The
applicant has produced the relevant part of the judgment and order
passed by the learned Sessions Judge. Paragraph No.37 of the
judgment records as under:-
37. The
accused caused injuries to the complainant and after committing
offence of loot, he was trying to escape in Maruti. At that time,
police employees reached to the scene of offence; they too were
attacked with knife and with revolver. There was a public firing and
taking that into consideration along with the loot, under Section 397
of Indian Penal Code, the offence of causing grievous heart and death
was also attempted and therefore, the Court took the offence in its
right perspective, treating it to be a grave offence and imposed
punishment of 10 years’ R.I., fine of Rs.5,000/-, in default, 2
years’ S.I.
6. Learned
Additional Public Prosecutor invited attention of the Court to an
affidavit filed by one Talpada Rupalben Shantilal, aged 24 years,
residing at ‘Kuver Nivas’, Nr.Gujarati Shala, village-Mahudha, Tal.-
Mahudha, Dist.-Kheda. The averments made in one of the paragraphs of
the affidavit, if not contemptuous, are certainly unwarranted and
very dis-tasteful casting aspersion even to the learned Sessions
Judge, when it is stated that:-
The
applicant Sevalam Sashi is totally innocent person; only because
he is from out side Gujarat, the police had impleaded him in false
loot case and the Hon’ble Sessions court has also
punished him for 10 years imprisonment.
For last 4 years, I am not able to meet the applicant to my heart’s
satisfaction.
7. Taking
into consideration the nature of the offence and the gravity, which
is reflected from the contents of paragraph No.37 of the judgment,
the Court finds no substance in the application. Hence, the
application is rejected. Rule is discharged.
The
Court restrains itself from rejecting the application with costs.
9. Thereafter,
the present application has been preferred by the applicant-convict
for suspension of the sentence for releasing him on temporary bail.
It is hardly required to be stated that once the application was
considered on merits by this court vide order dated 2.12.2009 in
Criminal Misc. Application No. 13449/2009 referred to hereinabove,
and the Court having found that there is no substance in the
application even for temporary bail, it would not at all be a case
for grant of regular bail by suspension of the sentence.
10. The
contention of the learned for the applicant that the advocate of the
applicant did not remain present at the relevant point of time and
that observations were made by the Court in the order dated 2.12.2009
was for temporary bail, even if considered, it would not make out a
case for suspension of sentence and for releasing the applicant on
regular bail and the reason being that if this Court after
considering the merits of the matter has found that there is no case
to release the applicant on temporary bail, such ground would apply
with more vigore in the matter of regular bail.
11. In
the above view of the matter, we find that the present application is
nothing but a successive bail application. There is no material
change in the circumstances which may warrant the review of all the
earlier orders and to release the applicant on regular bail by
suspension of the sentence. As the ground
of merits are already considered by the Court on earlier occasion
more particularly in the order dated 2.12.2009, we find it proper not
to reiterate the same.
12. Learned
counsel for the applicant by relying upon the averments made in the
grounds (d), (e), (h) and (I), made an attempt to contend that court
may consider the case of releasing the applicant on regular bail. We
are afraid such can be considered to up-set the view already taken
by this court earlier. Further, even if, the contentions are
considered for the sake of examination, the same would not make out a
case for suspension of the sentence imposed for a grave offence
considering the facts and circumstances of the case. The another
pertinent aspect is that the applicant is originally resident of
Tamil Nadu State, Dist. Madurai and, therefore, if the applicant is
released on bail, it may not be possible for this Court also to have
a control over the applicant so as to secure his presence and the
same can be considered as an additional ground for rejecting the
prayer for regular bail.
13. In
view of the aforesaid, the application deserves to be rejected and
therefore, rejected. Rule is discharged.
(JAYANT
PATEL, J.)
(Z.K.SAIYED,
J.)
mandora/
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