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2006 DIGILAW 499 (GUJ)

MAGANBHAI BINDESHWARI PATEL v. STATE OF GUJARAT

2006-08-10

A.L.DAVE, BANKIM N.MEHTA

body2006
A. L. DAVE, J. ( 1 ) RULE. Mr. Prachchak, learned A. P. P. waives service of notice of rule on behalf of the State. This is an application preferred by the applicant under Section 389 (1) of the Criminal Procedure Code for suspension of sentence and his release on bail pending disposal of the appeal. The applicant has been convicted for the offences of murder punishable under Sections 302, 498-A and 294 (B) of the Indian Penal Code, by the learned Additional City Sessions Judge, Court No. 2, Ahmedabad vide judgment and order dated 2nd September, 2003, passed in Sessions CASE No. 121 of 2002, against which Criminal Appeal No. 1247 of 2003 has been preferred and is pending before this Court. 1. The applicant had earlier preferred application for suspension of sentence and release on bail bearing Misc. Criminal Application No. 9771 of 2003, which came to be disposed of by order dated 10/12/2003 which runs as under. Rule. Learned A. P. P. , Shri Prachchak waives service of Rule for the respondent-State. Shri Divetia for Shri Agrawal for the petitioner seeks permission to withdraw this Bail Application at this stage with liberty to file fresh Bail Application after the paper Book is ready. Permission granted. Dismissed as withdrawn. Sd/- Sd/- (B. J. Shethna, J) (J. R. Vora, J.)2. The applicant had preferred Criminal Misc. Application No. 14680 of 2005 for temporary bail which also came to be rejected by this Court by order dated 16/12/2005. The present application preferred by the applicant is, therefore, a successive one. ( 2 ) LEARNED Advocate, Mr. Agrawal, submitted that the applicant has been convicted for offence of murder and is sentenced to undergo imprisonment for life. He came to be arrested on 16/3/2002 and is in jail since then. He submitted that the appeal is not likely to be taken up in near future looking to the pendency of the appeals and the fact that the paper book is yet not ready. The applicant has a constitutional right under Article 21 of the Constitution of India for speedy justice which is violated and, therefore, this application may be entertained. Mr. Agrawal relied upon following decisions. Abdul Rehman Antulay etc. v. R. S. Nayak and Anr. reported in A. I. R. 1992 SC 1701 babu Singh and Ors. The applicant has a constitutional right under Article 21 of the Constitution of India for speedy justice which is violated and, therefore, this application may be entertained. Mr. Agrawal relied upon following decisions. Abdul Rehman Antulay etc. v. R. S. Nayak and Anr. reported in A. I. R. 1992 SC 1701 babu Singh and Ors. v. The State of Uttar Pradesh reported in A. I. R. 1978 SC 527 2. 1 Mr. Agrawal submitted that if at the end, the appeal is allowed, the appellant cannot be compensated for the period of incarceration in jail and therefore the sentence may be suspended by allowing this application and the applicant may be released on bail on such conditions as may be deemed, fit and proper. ( 3 ) LEARNED A. P. P. , Mr. Prachchak, has opposed this application. He submitted that this is a successive application for suspension of sentence and bail. No change in circumstance is indicated, except, afflux of time. Mr. Prachchak, submitted that the appeal is of the year 2003, whereas the Court is taking up matters which are much older where the convicts are also in jail. Mr. Prachchak, submitted that in light of decisions of the Apex Court as rendered in case of Surinder Singh Alias Shingara Singh v. State of Punjab, reported in 2005 (7) S. C. C. 387 and in case of Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and Another, reported in 2004 S. C. C. (CRIMINAL) 1977, the application may be rejected. ( 4 ) WE have taken into consideration rival side contentions. 1. There is no dispute about the fact that this is a successive application for suspension of sentence and bail. There cannot be any dispute about settled proposition of law that there is no bar or prohibition on preferring successive bail applications. 2. What is required to be examined is in what circumstances can a successive bail applications be entertained. In this regard, reference may be held to State of Maharashtra v. Captain Buddhikota Subha Rao, reported in A. I. R. 1989 SC 2292. Where the Apex Court observed that a successive bail application can be preferred only in case of change of circumstances and such change has to be substantial one which will have a direct impact on the earlier decision and not merely cosmetic change which may be of little or no consequence. 3. Where the Apex Court observed that a successive bail application can be preferred only in case of change of circumstances and such change has to be substantial one which will have a direct impact on the earlier decision and not merely cosmetic change which may be of little or no consequence. 3. Now, therefore, the Court will have to examine whether there is any change in circumstances, which would call for taking a different view in the matter. The only ground which is pressed is the likely delay in hearing of the appeal resulting in violation of Article 21 of the Constitution of India. Reliance was placed on decision of the Apex Court in case of Abdul Rehman Antulay etc. v. R. S. Nayak and Anr. reported in A. I. R. 1992 SC 1701 in support of the said contention. There is no dispute about the fact that a speedy trial is a right which would come within the sweep of the said provision. But, we may examine what the Apex Court has stated on this right. In case of Surinder Singh alias Shingara Singh v. State of Punjab, reported in 2005 (7) S. C. C. 387, the Apex Court observed that speedy trial is a fundamental right implicit in the broad sweep and content of Article 21. The Apex Court took into consideration various pronouncements by the Apex Court including the case of Abdul Rehman Antulay (Supra) and observed that the Apex Court has repeatedly emphasized the fact that speedy trial is a fundamental right implicit in the broad sweep and content of Article 21 of the Constitution of India. The said article confers a fundamental right of every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by the law. If person is deprived of his liberty under a procedure which is not reasonable, fair or just, such deprivation would be violative of his fundamental right under Article 21 of the Constitution of India. The procedure so prescribed must ensure a speedy trial for determination of the guilt of such person. However, it was observed that some amount of deprivation of personal liberty cannot be avoided, but if the period of deprivation pending trial becomes unduly long, fairness assured by Article 21 would receive a jolt. The procedure so prescribed must ensure a speedy trial for determination of the guilt of such person. However, it was observed that some amount of deprivation of personal liberty cannot be avoided, but if the period of deprivation pending trial becomes unduly long, fairness assured by Article 21 would receive a jolt. The Apex Court, ultimately, came to a conclusion that the decisions of the Apex Court do not lay down any invariable rule for grant of bail on completion of a specified period of detention in custody and it is not possible to evolve a straitjacket formula. The Court must exercise its discretion having regard to all the relevant facts and circumstances of the case on its hands. ( 5 ) IN case of Vijaykumar v. Narendra and Anr. reported in 2002 (9) SCC 364 and in case of Ramji Prasad v. Rattan Kumar Jaiswal and Anr. reported in 2002 (9) SCC 366 , the Apex Court observed that normal practice in cases like murder is not to suspend the sentence. It is only in exceptional cases that the benefit of suspension of sentence can be granted. The Court has to take into consideration factors like the nature of the accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence and the desirability of releasing the accused on bail after he has been convicted for committing the serious offence of murder. ( 6 ) THE Apex Court reiterated this view in case of Kishori Lal v. Rupa and Ors. reported in 2004 SCC (CRIMINAL)2021 by observing that it is only in an exceptional case that benefit of suspension can be granted in cases involving conviction under Section 302 of the Indian Penal Code and set aside the order of the High Court impugned in that case by observing that the order does not meet with the said requirement. 1. The situation that emerges therefore, is, that there is no prohibition or bar on preferring of successive application, but, successive bail application can be entertained only where there is a substantial change in circumstance which would have direct impact on the previous order. Speedy trial is a fundamental right envisaged under Article 21 of the Constitution of India but reasonable restriction can be there. Speedy trial is a fundamental right envisaged under Article 21 of the Constitution of India but reasonable restriction can be there. In cases where conviction is for murder punishable under Section 302 of the Indian Penal Code, only in exceptional circumstances bail can be granted after taking into consideration the nature of the accusation, the manner in which the incident has occurred, etc. ( 7 ) IN the instant case, the applicant s earlier application was withdrawn. Withdrawal amounts rejection. At that time the liberty was reserved to move application after preparation of paper book. That stage has yet not come and therefore, if this application is considered as one in exercise of that liberty, it is premature. If this application is not considered in exercise of that liberty, this is a successive bail application preferred on the ground of anticipated delay in disposal of the appeal. No other exceptional circumstances are shown which would entitle the applicant to restoration of his liberty by suspending the sentence and granting him bail. On the contrary, the applicant is convicted for murder of his wife by ill-treating her and then setting her ablaze after pouring kerosene on her person. So far as delay part is concerned, we may observe that the applicant s appeal is of year 2003. We have already started taking up matters of 1999. As per present roaster more Benches are taking up criminal appeals for final hearing. The applicant is in jail since 16/3/2002 whereas there are convicts/appellants, who are in jail much prior that and, who are awaiting for their turn to come. This is an inevitable situation and is in accordance with procedure prescribed by law. In facts of the case, it cannot be considered as an unreasonable restriction which would violate the right envisaged under Article 21 of Constitution of India. Under the circumstances, we are of the view that the applicant s case does not merit acceptance. Application must fail and stands rejected. Rule is discharged.