Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 301 (RAJ)

Salman Khan v. Union Of India

2021-02-05

INDRAJIT MAHANTY, MANOJ KUMAR GARG

body2021
JUDGMENT 1. The present writ petition came to be filed by the petitioner namely, Salman Khan seeking the following relief: "(a) Declare Section 437A of Cr.P.C. as manifestly arbitrary, unreasonable, unfair unconstitutional and ultra vires on the vice of Article 14 and 21 of the Constitution of India, or to save it from unconstitutionality, to expound the scope thereof by construing the word "to appear" used therein with expansive meaning and also including "to appear through the medium of electronic video linkage/video conferencing "; (b) Permit the petitioner to appear before the Ld. Sessions Judge, Jodhpur in Appeal Nos. 18/2018 and 22/2017 filed by the Petitioner and the State, by way of video conferencing as per the convenience of the said Court, by waiving only his physical presence in Court; (c) Pass any other or further orders which this Hon'ble Court may deem fit and proper in the interest of justice." 2. The matter came up for admission on 04.02.2021. On that date, this Court was pleased to direct as follows: "Issue notice in relation to prayer (b). Learned counsel for the petitioner is directed to serve a copy of the petition a long with annexures upon Mr. Farzand All, learned Additional Advocate General in course of today. Matter be listed tomorrow, i.e., 05.02.2021." 3. Shri Farzand AN, learned AAG appearing for the State has submitted that no lawful ground exists for granting relaxation under Section 437A of the Cr.P.C. since it reposed the authority in the appellate court to ensure the appearance of an accused convict in course of the appeal. 4. Learned counsel for the petitioner submits that he does not press the prayer TV of the present writ application and limits his prayer to prayer 'B' only and states that the term "to appear" as found from Section 437A of the Cr.P.C. has an expansive meaning and should also include the appearance through the medium of electronic video linkage/video conferencing. 5. Heard learned counsel for the respective parties. 6. 5. Heard learned counsel for the respective parties. 6. After perusing Section 437A of the Cr.P.C, it is clear therefrom that before disposal of an appeal, the appellate court shall require the accused to execute bail bonds with sureties, to appear before the higher court as and when such court issues notice in respect of any appeal or petition filed against the judgment of the respective court and for such purpose bail bonds shall be in force for six months. 7. In the facts of the present case, it is clear therefrom that the petitioner was arraigned as an accused in three separate cases under the Wild Life (Protection) Act for three different incidents alleged to have occurred between a period of six days: (a) FIR No.162/1998 dated 11.10.1998 registered at Police Station Mathania, Jodhpur for alleged incident dated 26.09.1998 of hunting a deer (Criminal Case no.207/1999); (b) FIR No.163/1998 dated 11.10.1998 registered at Police Station Mathania, Jodhpur for alleged another incident dated 28.09.1998 of hunting a deer (Criminal Case No.206/1999); and (c) FIR No.93(26)/1998 dated 02.10.1998 registered with the Forst Department for alleged incident of hunting, which alledgedly took place on the intervening night of 01.10.1998 and 02.10.1998 (Criminal Case no.66/2011). 8. In two FIRs i.e. FIR No.162/1998 and 163/1998 resulting in Criminal Cases No.207/1999 and No.206/1999 respectively, the petitioner has been acquitted by this Court vide two separate judgments and orders both dated 25.07.2016, in S.B. Criminal Appeal No.53/2012 and S.B. Criminal Revision Petition No.905/2007, by reversing the sentence and conviction order passed by the trial Court and the learned Sessions Judge respectively. The SLPs filed there against by the State of Rajasthan are pending before the Hon'ble Supreme Court. 9. For the purpose of the present case, it is material to note herein that in the FIR No.93(26)/1998 dated 02.10.1998 resulting in Criminal Case No.66/2011, the petitioner was convicted and sentenced to simple imprisonment for 5 years and fine of Rs.10,000/- vide order dated 05.04.2018. Challenging the said conviction, the petitioner appears to have filed Appeal No.18/2018 which is pending before the learned Sessions Judge, Jodhpur District. It also appears that during the pendency of the said appeal i.e. 18/2018, the sentence was suspended and the petitioner was enlarged on bail upon furnishing a personal bond of Rs.50,000/- along with two sureties of Rs.25,000/- each, vide order dated 07.04.2018. 10. It also appears that during the pendency of the said appeal i.e. 18/2018, the sentence was suspended and the petitioner was enlarged on bail upon furnishing a personal bond of Rs.50,000/- along with two sureties of Rs.25,000/- each, vide order dated 07.04.2018. 10. It is also relevant to note here that a further FIR No.180/1998 dated 15.10.1998 was also simultaneously registered against the petitioner at Police Station Luni under the Arms Act and vide judgment and order dated 18.01.2017, the petitioner has been acquitted by the trial court in the said case. The appeal has been filed by the State of Rajasthan and the same is pending before the learned Sessions Judge, Jodhpur District. 11. In other words, during the pendency of the aforesaid two appeals namely, Appeal No. 18/2018 (petitioner's appeal) and 22/2017 (State's appeal), the petitioner has been appearing regularly through his counsel and has been seeking exemption from personal appearance from time to time. 12. It further appears that vide order dated 14.09.2020, the learned Sessions Judge recorded appearance of the learned counsel for the petitioner and learned Public Prosecutor and while allowing exemption for the personal appearance of the petitioner for the day, the learned Sessions Judge was pleased to direct that on the next date i.e. 28.09.2020, the petitioner shall remain present and submit bail bonds under Section 437A of the Cr.P.C. Thereafter the appeals have been adjourned on various dates due to the ongoing Covid-19 Pandemic. It is asserted that the next date of hearing fixed is 06.02.2021 and the petitioner is required to be personally present on the said date. 13. In view of the aforesaid circumstances noted hereinabove, the petitioner's counsel has submitted that for the purpose of executing the bail bonds or any other purpose as the learned Sessions Judge may require, the petitioner may be permitted to appear through the medium of electronic video linkage/video conferencing. These submissions have been made keeping in view the present Covid-19 Pandemic as well as the fact that the petitioner being a well known public personality, his personal presence attracts horde people and it always creates a situation where the public order is at risk. These submissions have been made keeping in view the present Covid-19 Pandemic as well as the fact that the petitioner being a well known public personality, his personal presence attracts horde people and it always creates a situation where the public order is at risk. It is also stated by the petitioner's counsel that hundreds of Armed Police have to be provided on each occasion when the petitioner appears before the appellate court and consequently, it would assist the State prosecution as well as the appellate court if the petitioner's personal presence is exempted and he is allowed to appear through the electronic video linkage/video conferencing. 14. In these circumstances as noted hereinabove, balancing out the interest of the petitioner (convict) and the rights and requirements of the appellate court, we direct as follows: (1) The petitioner (convict) is permitted to appear before the learned Sessions Judge, Jodhpur District in Appeal No.18/2018 and 22/2017 filed by the petitioner and State respectively, by way of video conferencing as per the convenience of the Sessions Court by waiving the requirement of physical presence in Court. (2) We further direct that the petitioner shall remain present in person before the appellate court on the date fixed for pronouncement of judgment in both the aforesaid appeals. 15. With the aforesaid observations and directions, the writ petition stands disposed of.