Gujarat High Court
Sabbir vs State on 9 July, 2008
Author: H.B.Antani
Bench: H.B.Antani
Gujarat High Court Case Information System
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CR.MA/8804/2008 3/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 8804 of 2008
=========================================================
SABBIR
@ KALU BIHARI @ REHMATALI @ RAJJAKBHAI FALUDAWALA
Versus
STATE
OF GUJARAT
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Appearance :
MR
IM MUNSHI for Applicant.
MR HL JANI, ADDL. PUBLIC PROSECUTOR for
Respondent.
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CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 09/07/2008
ORAL
ORDER
Rule. Mr. H.L. Jani, learned Additional Public Prosecutor waives service of rule on behalf of the respondent State. At the request of the learned counsel appearing for the parties, this application is taken up for hearing today.
By filing this application, the applicant has prayed for regular bail under section 439 and 436A of the Code of Criminal Procedure, 1973 in respect of Sessions Case No. 90 of 2005 pending before the City Civil & Sessions Court, Ahmedabad which is in connection with DCB Police Station C.R. No. I-13 of 2002 for offences punishable under section 202, 120(B) and 119 of the Indian Penal Code and 25(1)(A)(A), 27, 29(A)(B) of the Arms Act and sections 3,4 and 5 of the Explosive Substance Act.
Learned advocate for the applicant submitted that the learned Judge has not considered the order dated 23.10.2007 passed by the High Court in Criminal Revision Application No. 277 of 2007 wherein it is observed that the trial Court may proceed with the case but in view of the fact that the revision application is pending before this Court, it is expected that the trial Court would not conclude the trial. Learned advocate submitted that because of the inordinate delay caused by the prosecution, the matter has not proceeded and as a result of it, the applicant has suffered a lot. It is submitted that the applicant has remained in judicial custody for a long period and therefore, even considering the long period the applicant has remained in judicial custody, the applicant is required to be released on bail. Learned advocate further submitted that considering the provisions of section 436A and 439 of the Code of Criminal Procedure, it is a fit case to release the applicant on regular bail as prayed for in the application.
On the other hand, learned Additional Public Prosecutor, Mr. H.L. Jani, placing reliance on the order dated 14.05.08 passed by learned Additional Principal Judge, Court No.2, Ahmedabad submitted that defence witnesses were not examined by the defence side and, therefore, delay was caused in concluding the trial. He further submitted that there was no fault on the part of the prosecution in causing the delay. Learned advocate placed reliance on the aforesaid order dated 14.05.08 passed in Criminal Misc. Application in Sessions Case No. 90 of 2005, a copy of which is produced at pages 22-23 of the present compilation, more particularly paragraph 2 of the order, in support of his submission that depositions of the witnesses and panch witnesses were over, and the matter is at the argument stage. In view of the aforesaid facts and circumstances, there is no reason to interfere with the order of rejection passed by the learned Sessions Judge and the application deserves to be dismissed.
Heard learned advocate Mr. Munshi for the applicant and Mr. Jani, learned APP for the State at length and in great detail. I have also perused the averments made in the application as well as the aforesaid reasoned order passed by the learned Additional Principal Judge, Ahmedabad.
In paragraph 2 of the order dated 14.05.2008, the learned Judge has observed as under:
?SHaving considered the rival submissions, I find considerable merits in the submissions of Shri. Prajapati, L. Addl. P P for the State. The defence witnesses were sought to be examined in terms of the statement of accused recorded under section 313 of Criminal Procedure Code which was recorded on 21.11.2007. Subsequent thereto, in numerable dates of hearing have passed on which there was no progress on account of the fact that defence witnesses have not been examined for one reason or other. In my opinion, therefore, no ground exists at least at this juncture, as would entitle the applicant to grant of bail, more particularly, in light of the grave and serious charges he faces. Hence, application stands rejected.??
In view of the aforesaid, it becomes clear that the defence witnesses were not examined, and therefore the delay was caused in conclusion of the trial, and there was no fault on the part of the prosecution in prolonging the trial.
It is strongly contended by learned advocate for the applicant that in view of the stay is granted by this Court in Criminal Revision Application No. 277 of 2007 which is pending before this Court, the Sessions Case could not proceed and there is no fault on the part of the defence side in causing the delay in proceedings. This submission also is bereft of any merit. If stay operates because of the pendency of Criminal Revision Application, then it is for the applicant to move a proper application to get the stay vacated so as to see that the trial proceeds. The said grievance can neither be ventilated nor redressed in the present proceedings.
Learned advocate vehemently argued that in view of the provisions of section 436A of Cr.P.C., the applicant is required to be released on bail.
Section 436A of Cr.P.C. reads as under:
?S436A. Maximum period for which an undertrial prisoner can be detained.- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending upto one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties.??
There cannot be any dispute about the provisions contained in section 436A of Cr.P.C. However, the explanatory clause to the said section states that the period of detention passed due to delay in proceeding caused by the accused shall be excluded. Considering the said explanatory clause vis-a-vis the observations made by the learned Additional that ?Sin numerable dates of hearing have passed on which there was no progress on account of the fact that defence witnesses have not been examined for one reason or other??, the benefit of this section cannot be given to the applicant. In the present case, the trial is almost concluded and the matter is at the stage of arguments. In the circumstances, in my considered view, no interference is called for.
It is also observed by the learned Judge in the aforesaid order dated 14.05.08 that on earlier occasions, regular bail applications have been rejected by the City Sessions Court as well as the High Court and even applications of similar nature seeking bail have also been rejected by the predecessor City Sessions Judge and no relief for bail was granted. In the circumstances also, I do not find any substance in the present application.
Save and except the above mentioned submissions, no other submissions have been canvassed by the learned advocate for the applicant.
In view of the above facts and circumstances and for the foregoing reasons, this application is thoroughly misconceived and without any substance, and no interference is called for with the reasoned order passed by the learned trial Judge.
In the result, this application is rejected. Rule is discharged.
mathew [H.B.ANTANI,
J.]
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