Gujarat High Court
Abdul Karim Alibhai Shaikh & vs State Of Gujarat on 16 March, 2017
Bench: S.R.Brahmbhatt, A.J. Shastri
R/CR.MA/5467/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 5467 of
2017
In
CRIMINAL APPEAL NO. 826 of 2016
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ABDUL KARIM ALIBHAI SHAIKH & 1....Applicants
Versus
STATE OF GUJARAT....Respondent
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Appearance:
MR HARSHIT S TOLIA, ADVOCATE for the Applicant Nos. 1 2
MR PARTH S TOLIA, ADVOCATE for the Applicant Nos. 1 2
MR. L. R. POOJARI, APP for the Respondent
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 16/03/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE A.J. SHASTRI)
1. By way of the present application the applicants herein has prayed for suspension of impugned judgment and order of sentence dated 7th May 2016 passed by the learned 7th Additional Sessions Judge, Bhavnagar in Sessions Case no.39 of 2013 and sought to be released on regular bail. The learned Sessions Judge by his judgment and order was pleased to hold the present applicants guilty for the offence punishable under Sections 302, 307, 143, 147, 148, 149, 504, 120 (B), 34 of I.P.C. and Sec. 135 of Gujarat Police Act in the following manner.
"(a) all the 5 accused including applicants herein are convicted and sentenced to suffer R.I. for life along Page 1 of 5 HC-NIC Page 1 of 5 Created On Sun Aug 13 21:58:25 IST 2017 R/CR.MA/5467/2017 ORDER with fine of Rs.50,000/ each and in default of payment of fine, they are directed to undergo further R.I. for a period of 6 months, for the offence punishable u/s. 302, 120(B) r/w. 34 of I.P.C.
(b) Further, all 5 accused are convicted and sentenced to suffer R.I. for a period of 10 years along with fine of Rs.10,000/ each and in default of payment of fine, they are directed to undergo further R.I. for a period of 6 months, for the offence punishable u/s. 307, 120(B) r/w. 34 of I.P.C.
(c) Further, the accused are convicted and sentenced to suffer R.I. for a period of 6 months along with fine of Rs.1,000/ each and in default of payment of fine, they are directed to undergo further R.I. for a period of 1 month, for the offence punishable u/S. 143 of I.P.C.
(d) Further, the accused are convicted and sentenced to suffer R.I. for a period of 1 year along with fine of Rs.1,000/ each and in default of payment of fine, they are directed to undergo further R.I. for a period of 2 months, for the offence punishable u/s.
147 of I.P.C.
(e) Further, the accused are convicted and sentenced to suffer R.I. for a period of 1 year along with fine of Rs.1,000/ each and in default of payment of fine, they are directed to undergo further R.I. for a period of 1 month, for the offence punishable u/s. 148 r/w. 149 of I.P.C.
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(f) Further, the accused are convicted and sentenced to suffer R.I. for a period of 1 year along with fine of Rs.1,000/ each and in default of payment of fine, they are directed to undergo further R.I. for a period of 2 months, for the offence punishable u/s. 504 of I.P.C.
(g) Further, the accused are convicted and sentenced to suffer S.I. for a period of 1 year along with fine of Rs.1,000/ each and in default of payment of fine, they are directed to undergo further S.I. for a period of 2 months, for the offence punishable u/s. 135 of Gujarat Police Act.
Substantive sentences are directed to run concurrently."
2. Mr. H. S. Tolia, learned advocate for the applicant nos.1 and 2 has stated that the main appeal is already admitted and the applicants were enlarged on bail and had remained all through out on the same during the trial of the offence and it is also not the case of prosecution that such liberty was in any manner misused by the applicants. Mr.Tolia, learned advocate for the applicant nos.1 and 2 has further contended that applicant no.1 is a senior citizen and accused no.2 is aged about 60 years and therefore, considering their age factor also since they were already on bail during the trial, may kindly be allowed to remain on bail. Mr.Tolia, learned advocate for the applicant nos.1 and 2 has further contended that on the contrary looking to the entire evidence on record, the prosecution has not established the guilt of applicant beyond reasonable doubt and there are fair chances of applicants being acquitted in the proceedings. Mr.Tolia, learned advocate further contended that in a cross case, all the accused were Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Aug 13 21:58:25 IST 2017 R/CR.MA/5467/2017 ORDER enlarged on bail by this court and therefore, also the present applicants be enlarged on bail. Mr.Tolia, learned advocate for the applicant nos.1 and 2 has further contended that the applicants are ready and willing to abide by the condition, which this Hon'ble Court may deem fit and ultimately prayed that since through out the proceedings they were on bail till the adjudication of present main appeal, they may be released by allowing the present application.
3. To oppose the stand taken by the learned advocate for the applicant nos.1 and 2, Mr.L.R.Poojari, learned Additional Public Prosecutor for the State has submitted that in case if the Court is inclined to exercise discretion in favour of the applicants in view of the fact of cross case accused position, the Court may not assign elaborate reasons and ultimately requested the Court to pass appropriate orders.
4. Having heard the learned advocates appearing for the respective sides and having perused the R. & P. of the case and considering overall facts and circumstances of the case, we deem it proper to suspend the sentence awarded against the applicants. Hence, the sentence imposed by the learned 7th Additional Sessions Judge, Bhavnagar in Sessions Case No.39 of 2013 dated 7th May 2016 is hereby suspended. The applicants shall be released on regular bail on executing fresh bond of Rs.25,000/ (Rupees Twenty Five Thousand only) each with one surety of like amount to the satisfaction of the trial court and subject to the following conditions.
(a) surrender passport, if any, to the lower Court within a week;
(b) not leave the India without prior
permission of the trial Court;
(c) furnish the present address of residence to
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the I.O. and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
(d) shall not enter into Bhavnagar District pending this appeal.
(e) The applicants are directed to remain out of Bhavnagar City area except for attending the trial, if any, and will not enter without express permission of the Court concerned and shall mark their presence at Sihor Police Station once in a month and this condition is imposed for a period of 6 months.
5. This discretion is exercised more particularly in view of the fact that all thorough the applicants were on bail and it is not the case that they have misused the liberty in any form.
6. Accordingly, in view of the aforesaid stipulations, the present application is disposed of. Rule made absolute. Direct service permitted.
(S.R.BRAHMBHATT, J.) (A.J. SHASTRI, J.) Rathod...
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