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2004 DIGILAW 363 (GUJ)

Nimaichandra nittal v. STATE OF GUJARAT

2004-06-06

B.J.SHETHNA, J.R.VORA

body2004
B. J. SHEHTNA J. ( 1 ) RULE. Learned APP, Mr. Desai waives service of rule for respondent-State. ( 2 ) THIS second bail application filed by the applicant-accused after a period of less than 9 months from the rejection of his earlier application for bail as not pressed on 28. 7. 2003. by another Division Bench of this court. ( 3 ) LEARNED counsel Mr. Patel relying on the Judgment of the Honble Supreme Court in case of TAKHT SINGH AND ORS. V/s. STATE OF M. P. REPORTED IN 2003 SCC (CRI.) 800 submitted that the petitioner has remained in jail in all for a period of 4 years and that there is no possibility of his appeal being heard early. Therefore, he may be released on bail. He also submitted that except him there is no one to maintain his fanily, including his old widow mother. He also submitted that he has got an artistic hand, therefore, to keep such person in jail means ruining the brilliant career of a person in jail. He, therefore, submitted that he may be released on bail till final disposal of his appeal. ( 4 ) IT is no doubt true that in Takht singhs case (supra) the Honble Supreme court released the accused on bail, who were convicted for the offence u/s. 302 r/u. S. 149 ipc and sentenced to suffer life imprisonment on the ground that first application filed by the accused before the high Court for suspension of sentence and bail was rejected by the High Court by observing that the accused can renew the prayer for bail after one year. However, when second bail application was filed after expiry of period of one year the same was again rejected-by the High Court. That order was challenged before the Honble apex court and it was submitted that they were in jail for a period of over 3 years and 3 months and there was no possibility of early hearing of their appeal in the High Court, therefore, the accused be released on bail. Under the aforesaid circumstances, those accused were released on bail by the Honble apex court. It is a short order, therefore, we would like to reproduce the same as under :-"1. Leave granted. 2. The appellants have been convicted under Sections 302/149 IPC by the learned sessions Judge and have been sentenced to imprisonment for life. Under the aforesaid circumstances, those accused were released on bail by the Honble apex court. It is a short order, therefore, we would like to reproduce the same as under :-"1. Leave granted. 2. The appellants have been convicted under Sections 302/149 IPC by the learned sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the high Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief judicial Magistrate, Sehore. The appeal is disposed of accordingly. "it is true that in this case, the appellant-accused has remained as under trial prisoner for a period of 2 years 11 months and 16 days and after the order of conviction and sentence dated 25. 6. 2003 passed by the Trial Court he remained in jail for a period of 10 months and 10 days. Thus, he has remained in jail for a period of 3 years and 9 months. However, in our considered opinion merely because the applicant-accused has remained in jail in all for a period of 3 years and 9 months that itself would not be a ground to release him on bail as submitted by Mr. Patel. In our considered opinion, the aforesaid judgment of the Honble apex court in Takht Singhs case (supra) will have no application for the reason that first bail application i. e. Criminal misc. Application No. 5584 of 2003 filed in above appeal for bail was rejected as not pressed by the Division Bench of this court (Coram : D. K. Trivedi and C. K Buch, J. J.) after hearing the learned counsel Mr. Patel for the applicant-accused at great length, which can be seen from the order which is produced at page 7 of this application. Patel for the applicant-accused at great length, which can be seen from the order which is produced at page 7 of this application. While rejecting first bail application Division Bench of this court had not reserved liberty to the applicant-accused to file second bail application after a period of one year which was done fay the Madhya Pradesh High Court in case of Takht Singhs case. We do not know on what ground Madhya Pradesh High court had rejected second bail application filed by the applicant-accused of that case as nothing has been stated in the order of granting bail by the apex court in Takht singhs case (supra ). Be that as it may. One thing which appears from the brief order passed by the Honble apex court in takht Singhs case is that the accused were convicted for the offence u/s. 302 r/u. 149 IPC. Whereas, in the instant case, the appellant- accused has been convicted for the offence u/s. 302 IPC. The appellant-accused was tried for committing murder of Sarmishthaben mohdikar working as nurse in the Dental hospital run by Dentist-complainant-Upen harivadan Diwanji on 10. 7. 2000 at 9. 00 a. m. in the Dental Hospital itself. Having considered oral as well as documentary evidence led by the prosecution, the learned trial Judge came to the conclusion that there was an ample evidence to prove that the accused had commined murder of sarmishthaben by giving knife blows on the chest, neck, back of deceased-Sarmishthaben. It has come on record of the case that the accused was having love affair with sarmishthaben. However, motive behind the murder was not established, but there was an evidence of eye witness. The accused pleaded case of alibi, which was not believed by the Trial Court in view of the thumping evidence led by the prosecution against him during the trial. However, motive behind the murder was not established, but there was an evidence of eye witness. The accused pleaded case of alibi, which was not believed by the Trial Court in view of the thumping evidence led by the prosecution against him during the trial. In that view of the matter, when the learned Trial Judge found the applicant accused guilty and convicted him for the major offence u/s. 302 IPC and that his appeal was admitted by the Division bench of this court, but rejected his bail application after hearing learned counsel for the applicant-accused at great length, then in our considered opinion it would be improper for this court to release the applicant-accused on bail within 9 months of rejection of his first bail application on the ground that he had completed more than 3 years in jail. The applicant-accused is hardly aged 35 years having widow mother to maintain. He may be an artist but all these factors, which in our considered opinion not at all relevant for releasing the accused on bail. ( 5 ) LAW on the point of grant of bail is now very well settled by catena of decisions of the apex court when the accused persons remained in jail and when the accused persons seeking bail during the trial The honble Supreme Court has laid down that the court has to consider not only the fact of the accused remaining in jail during the trial and the trial being prolonged, it has also to consider other aspects of the case viz. gravity of the offence, social status of the accused and the plight of the family members of the victim. In case of ramjiprasad V/s. RATTAN KUMAR jaiswal REPORTED IN (2002) 9 SCC 366 similar question was raised before the honble Supreme Court regarding grant of bail and the Honble Supreme Court held that normal practice in such type of cases where trial court found accused guilty for the offence u/s. 302 IPC and sentenced him to suffer life imprisonment, not to suspend the sentence. The sentence can be suspended and the accused can be released on bail only in exceptional cases. We have hereinabove set out the case against the applicant-accused in brief. The way and manner in which the accused committed murder compels us to reject bail application. ( 6 ) AT this stage, learned counsel Mr. The sentence can be suspended and the accused can be released on bail only in exceptional cases. We have hereinabove set out the case against the applicant-accused in brief. The way and manner in which the accused committed murder compels us to reject bail application. ( 6 ) AT this stage, learned counsel Mr. Patel submitted that hearing of this appeal may take some more time and the accused will have to remain in jail for a considerable time, therefore, at least his appeal be-either fixed early immediately after the vacation or it may be ordered to be expedited. In absence of any special ground, there is no question of granting this prayer. ( 7 ) IN view of the above discussion, both the prayers made in this application for releasing him on bail during the pendency and final disposal of the appeal and oral prayer made at the Bar for expediting and fixing early date of hearing are rejected. Accordingly this petition fails and is hereby rejected. Rule is discharged. .