Gujarat High Court
Surendrakumar @ Sunder Nandkishore ... vs State Of Gujarat & ... on 5 February, 2016
Author: M.R.Shah
Bench: M.R. Shah, Z.K.Saiyed
R/CR.A/388/2002 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 388 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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 or any order made thereunder ?
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SURENDRAKUMAR @ SUNDER NANDKISHORE AGGRAWAL....Appellant(s)
Versus
STATE OF GUJARAT & 1....Opponent(s)/Respondent(s)
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Appearance:
MR J M PANCHAL, ADVOCATE for the Appellant(s) No. 1
MR KJ SHETHNA, ADVOCATE for the Appellant(s) No. 1
MR JAL SOLI UNWALA, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
MS MOXA THAKKAR APP for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 05/02/2016
ORAL JUDGMENT
Page 1 of 4
HC-NIC Page 1 of 4 Created On Tue Feb 09 00:43:16 IST 2016 R/CR.A/388/2002 JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH)
1. Present Criminal Appeal is placed on Board by the Registry for orders, submitting that the appellant - original accused No.1 - Surendrakumar @ Sunder Nandkishore Aggrawal, who is main accused, who has been convicted for the offences under Sections 302, 34 and 201 of the Indian Penal Code and is sentenced to undergo life imprisonment with fine of Rs.1,50,000/-, in default, to undergo further 3 years imprisonment. He is absconding since 27.5.2002.
2. It is not disputed that pursuant to the impugned judgment and order passed by learned City Sessions Judge, Ahmedabad, passed in Sessions Case No.195 of 1998, the appellant herein - original accused No.1 has been convicted for the offences punishable under Sections 302, 34 and 201 of the Indian Penal Code and is sentenced to undergo life imprisonment. From the record, more particularly, the jail report, it appears that the appellant was arrested by the CID, Crime, Gandhinagar Zone on 11.12.1997 and by impugned judgment and order of conviction dated 31.1.2002, he has been convicted for the aforesaid offences. During the trial, the accused was not on bail. At the time of conviction also, he was in Central Jail, Sabarmati, Ahmedabad. However, it appears that after his conviction, the appellant - accused No.1 applied for parole to engage the lawyer to prefer the Appeal and after he was released on parole pursuant to the order passed by the Jail Authority and after he engaged the lawyer and preferred present Appeal, thereafter, he has not surrendered and he is absconding since 27.5.2002. Approximately more than 14 years have passed. It appears that all the efforts are made by Page 2 of 4 HC-NIC Page 2 of 4 Created On Tue Feb 09 00:43:16 IST 2016 R/CR.A/388/2002 JUDGMENT the State to nab and apprehend and arrest the appellant, however, all efforts seem to have been failed. Earlier, the Division Bench passed an order, while deciding appeal preferred by the other co-accused that the present appeal be heard only after the appellant herein - original accused No.1 is arrested or he surrenders. However, as observed above, since 14 years, the appellant - original accused is absconding and all the efforts are made to arrest him, however all the efforts have failed. Learned advocates appearing on behalf of the original accused have stated at bar that since May, 2002 and after filing of the present Criminal Appeal, they are not in contact with the appellant - original accused No.1. The Court cannot keep the matter pending for number of years.
3. In view of the above and considering the decision of the Full Bench of this Court (Niraj Devnarayan Shukla Vs. State of Gujarat, reported in 2015(0) AIJEL- HC 232845), more particularly, para 16 (Clause III), without entering into merits of the case, present Appeal is dismissed as this Court is satisfied that after exhausting possible efforts, the appellant - original accused No.1 could not be traced out and as the appellant - original accused No.1 is absconding since 27.5.2002 and therefore, accused No.1 has shown total disrespect to the judicial system, present Criminal Appeal is dismissed. However, it is observed that if subsequently, the appellant - original accused No.1 - convict surrenders or he is arrested, he may file for restoration of his Appeal for hearing the same on merits.
4. While dismissing the present Criminal Appeal on the ground of non-availability of convict, it is specifically observed Page 3 of 4 HC-NIC Page 3 of 4 Created On Tue Feb 09 00:43:16 IST 2016 R/CR.A/388/2002 JUDGMENT and directed that all efforts shall be continued by the investigating agency and State to arrest the appellant - original accused No.1 - convict.
5. With this, present Criminal Appeal stands dismissed with the aforesaid liberty.
(M.R.SHAH, J.) (Z.K.SAIYED, J.) YNVYAS Page 4 of 4 HC-NIC Page 4 of 4 Created On Tue Feb 09 00:43:16 IST 2016