Gujarat High Court
Noorban vs State on 23 April, 2010
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
Gujarat High Court Case Information System
Print
SCR.A/6322010/2010 5/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 632 of 2010
=========================================
NOORBAN
ABDUL KHRUDUSH SHIKH - Petitioner
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================
Appearance :
MR
PRADIP D BHATE for Petitioner(s) : 1,
MR. H.L.JANI, ADDITIONAL
PUBLIC PROSECUTOR for Respondent :1
None for Respondent(s) : 2 -
3.
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 23/04/2010
ORAL
ORDER
The present Application has been filed by the Petitioner wife for the prayer that her husband convict prisoner Abdul Khuddush may be granted parole for 30 days for engagement of the daughter and son.
The convict prisoner husband of the Petitioner has been convicted for the TADA Case in TADA Case No. 144 of 1993 for the offence under Sections 302, 120, Arms Act 25(1)(C), 27 as well as for offence under Section 5 and 27 of the TADA Act and after his conviction he had preferred Appeal before the Hon'ble Apex Court being Criminal Appeal No. 13-14 of 2003, which also came to be rejected.
Learned Advocate Mr. Pradip D. Bhate for the Petitioner submitted that the husband of the Petitioner is in jail for 17 years and has not enjoyed any parole except the temporary bail granted by the Hon'ble Apex Court once.
Learned APP Mr. H.L.Jani submitted that the convict prisoner would be entitled for parole after the sentence is awarded as per the Bombay Parole Rules, 1959. He submitted that the convict prisoner is also involved in another TADA case No. 176 of 1993 for the offence registered being I-CR No. 731 of 1992 with Ellisbridge Police Station and infact the Order under Section 268(1) of Cr.P.C. was issued by the Government. He submitted that after his conviction in TADA Case No. 144 of 1993, Appeal was preferred before the Hon'ble Apex Court and the judgment and order passed by the designated TADA Court is confirmed. Learned APP Mr. H.L.Jani therefore submitted that this Court would not have jurisdiction to entertain any such application. He further submitted that it is not correct that the husband of the Petitioner has not been released any time, for which he referred to the certificate produced at Exh.15 giving the days when he was released on temporary bail during trial. It also refers to the details of temporary bail granted by the Hon'ble Apex Court for a period from 2.5.2005 to 28.5.2005. Therefore, learned APP submitted that since it is a case with regard to the engagement ceremony, there is no justification considering the gravity of the offence and also the fact that the order dated 23.4.2010 has been passed on the application for grant of parole by the competent authority, which is placed on record. He referred to the order passed by the Home Department dated 23.4.2010. Referring to the details regarding his involvement and the report of the Deputy Commissioner of Police, Zone-IV, Ahmedabad City, apprehending that if he is released he may indulge in such activity again and it is not desirable to grant parole.
Before the submissions are appreciated, few facts are required to be noted that the husband of the Petitioner has been convicted in TADA Case No. 144 of 1993 and the judgment of the designated Court, Ahmedabad has been confirmed by the Hon'ble Apex Court in the Appeal. There is another TADA Case being TADA Case No. 176 of 1993 also. The Notification under Section 268(1) of Cr.P.C. has also been issued by the Home Department, State of Gujarat considering the gravity of the offence that the convict prisoner has been involved in the aforesaid cases for indiscriminate firing and the group murder. It is in the background of these facts and the order passed by the competent authority dated 23.4.2010 placed on record, the Court is required to consider the present Application.
In the present Application, it has been averred that the decision is not taken with regard to the grant of parole, which grievance would not survive in view of the order passed and placed on record today. Therefore, once his application for parole is decided, the Court is required to consider whether the Court has jurisdiction to entertain the present Application and whether the Court has jurisdiction as sought to be canvassed. The provisions of Section 378 of Cr.P.C. makes it very clear that the High Court, pending the Appeal, can suspend or can pass the order for temporary bail. It is not in dispute that as it was a TADA Case against the impugned judgment of the designated Court, Appeal was preferred before the Hon'ble Apex Court and the Hon'ble Apex Court has confirmed the judgment and order of the designated Court. Therefore, as per the provisions of the special statute - TADA or the Cr.P.C., there is no occasion for this Court to exercise the jurisdiction under Cr.P.C. Further, as the judgment of the designated Court, Bhadra, Ahmedabad is confirmed by the Hon'ble Apex Court, no case / proceedings can be said to be pending. Therefore, if the order of sentence is confirmed by the Hon'ble Apex Court and the convict prisoner is undergoing the sentence, whether this Court could suspend the sentence or pass any order.
The Hon'ble Apex Court in case of Usmanbhai Dawoodbhai Memon and Ors. v/s. State of Gujarat, AIR 1988 SC 922 has observed that the High Court has no jurisdiction to entertain the bail application for the offence alleged under the TADA Act. Similarly, the Full Bench of the High Court of Gujarat in case of Latif Chhmtumiya Shaikh v/s. State of Gujarat and Others, 2000 (3) GLH 601, while considering the scope of the powers of the High Court with regard to the Prisoners (Bombay Furlough and Parole) Rules, 1959 has discussed on this aspect and it has been specifically observed, when the Court can order the suspension of execution of sentence or can release the convict on bail pending the Appeal under Section 389 of Cr.P.C. In the facts of the present case, as discussed above, the provisions of Cr.P.C. cannot be invoked as Section 389 will not have any application, particularly when the judgment and order of the designated TADA Court, Ahmedabad has been confirmed by the Hon'ble Apex Court and the sentence of the convict prisoner (husband of the Petitioner) is confirmed. Therefore, the High Court has no occasion to exercise these powers as no Appeal can be said to have been pending before it. The Rules of parole will come into play after the conviction is recorded and no Appeal is pending. The Hon'ble Full Bench of the High Court in case of Latif Chhmtumiya Shaikh v/s. State of Gujarat and Others (supra) has also referred to the aspect of propriety of exercise of discretion under Articles 226 and 227 of the Constitution of India and the High Court has quoted in paragraph 25 referring to the judgment of the Hon'ble Apex Court in case of Kartar Singh v. State of Punjab, 1994 (2) JT 423 as follows:
25. The Apex Court in case of Kartar Singh v. State of Punjab reported in 1994 (2) JT 423 pointed out as under:
388.
Though the High Courts have very wide powers under Article 226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the judicial consideration and well established principles. The legislative history and the object of TADA Act indicate that the special Act has been enacted to meet challenges arising out of terrorism and disruption. Special provisions are enacted in the Act with regard to the grant of bail and appeals arising from any judgment, sentence or order (not being an interlocutory order) of a Designated Court, etc. The overriding effect of the provisions of the Act (i.e. Section 25 of TADA Act) and the Rules made thereunder and the non obstante clause in Section 20(7) reading, Notwithstanding anything contained in the Code..... clearly postulate that in granting of bail, the special provisions alone should be made applicable. If any party is aggrieved by the order, the only remedy under the Act is to approach the Supreme Court by way of an appeal. If the High Courts entertain bail applications invoking their extraordinary jurisdiction under Article 226 and pass orders, then the very scheme and object of the Act and the intendment of the Parliament would be completely defeated and frustrated. But at the same time it cannot be said that the High Courts have no jurisdiction. Therefore, we totally agree with the view taken by this Court in Abdul Hamid Haji Mohammed that if the High Court is inclined to entertain any application under Article 226, that power should be exercised most sparingly and only in rare and appropriate cases in extreme circumstances. What those rare cases are and what would be the circumstances that would justify the entertaining of applications under Article 226 cannot be put in strait-jacket. However, we would like to emphasise and reemphasise that the judicial discipline and comity of courts require that the High Courts should refrain from exercising their jurisdiction in entertaining bail applications in respect of an accused indicated under the special Act since this Court has jurisdiction to interfere and correct the order of the High Courts under Article 136 of the Constitution.
Therefore, as observed, the provisions of Cr.P.C. will not have any application in the facts of the case and even if it is accepted for the sake of argument that considering the facts, the jurisdiction of this Court under Article 226 and 227 of the Constitution of India is invoked, then again, it will have to be considered in light of the observations referred to hereinabove. This very issue has been considered by the Full Bench and the question no.2 was precisely on this aspect. Again, in this judgment, it has been observed:
28. In view of what is stated hereinabove, the High Court in exercise of its writ jurisdiction under Articles 226 and 227 of the Constitution of India ordinarily cannot suspend the sentence by granting parole, furlough or bail to an accused convicted of an offence under the TADA Act.
Thus, it is observed that the remedy is to approach the Hon'ble Apex Court, and if the High Court entertains such an application for parole, i.e. suspension of sentence, or if the High Court entertains the bail application invoking extraordinary jurisdiction under Article 226 and 227 of the Constitution of India, then, the very scheme and object of the Act and the intendment of the Parliament would be completely defeated and frustrated.
Therefore, without much elaboration, it would be suffice to say that even if it is accepted that it is not a matter of lack of jurisdiction under Article 226 / 227 of Constitution of India, still it would be a matter of propriety and judicial discipline, which has been discussed in the judgment of the Full Bench referring to the judgment of the Hon'ble Apex Court in Kartar Singh v. State of Punjab (supra).
Therefore, even if there is no lack of jurisdiction under Article 226 and 227 of the Constitution of India to examine in a given circumstances, whether the applicability of TADA is justified or not, is one aspect. However, in a case like this, where, after the trial has been over and the order and judgment recording conviction by the designated Court is confirmed by the Hon'ble Apex Court, there would be no justification to examine such an application for parole or bail by the High Court under Article 226 or 227 of the Constitution of India.
The Application made as per Parole Rules has been considered by the competent authority and the order has been passed dated 23.4.2010. It has been decided based on the opinion given by Deputy Commissioner of Police, Zone-IV, Ahmedabad City apprehending that if the convict is released even on parole, he is likely to indulge in similar act and it is not in the public interest.
Even on merits also the ground of engagement of the son and daughter would not justify releasing the husband of the Applicant on parole as per Parole Rules.
Under these circumstances, the present application deserves to be rejected and accordingly stands rejected. Rule discharged.
(Rajesh H. Shukla,J) Jayanti* Top