BHAVANI SHANKAR KRIPALDAS MAHESHWARI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Service of rule is waived by Ms. B.R. Gajjar, ld. APP for the State. The petitioner herein seeks his release on bail during pendency of this appeal by virtue of S. 389 of Code of Criminal Procedure, 1973.

(2.) By order dated December 20, 1999 notice came to be issued for the purpose of enabling the State Government to canvass any case for not releasing the present petitioner on bail during the pendency of criminal appeal no. 358 of 1993. The State has not presented any such case except that the petitioner has actually undergone 9 years and 3 months of sentence out of the life sentence awarded to him and that he has yet not completed 11 years of sentence as per one of the categories to be noticed in order dated 29.7.1999 rendered by the Division Bench of this Court (Coram : J.N. Bhatt and H.R. Shelat, JJ) in Criminal Miscellaneous Application No. 2418 of 1999. That submission on behalf of the State has been replied by saying that remission of two years which the petitioner earned pursuant to order passed by His Excellency the Governor of Gujarat under Article 161 of the Constitution of India on the occasion of 50th Anniversary of the Independence of India needs be added so that the petitioner might deserve release on bail during the pendency of hearing of the appeal which is not likely to take place in near future.

(3.) It is not in dispute that Criminal Appeal No. 358 of 1993 has not been listed for final hearing and there are many appeals ahead of this appeal for hearing pending before the Court. It is also not in dispute that the petitioner stood convicted and sentenced for life on account of homicidal death of his wife, whereas other members of his family who were charged for the same offence were acquitted and the said acquittal appeal being Criminal Appeal No. 1240 of 1993 is also pending, although they are not in confinement. It has also been submitted that the prosecution case was one of circumstantial evidence which resulted into conviction of the petitioner whereas other family members of the petitioner were acquitted. Mr. Solanki appearing for the petitioner submitted that the defence of the present petitioner was that the wife of the petitioner Pushpaben committed suicide when none of the family members was present at home. We hasten to add here that we do not want to go into the merits of the matter in either of the two appeals. What is important to note from these brief facts is that the State has not come out with any circumstance which would call for any special consideration against the petitioner's release on bail on account of passage of time as per one of the categories appearing in the order passed by the Division Bench in Miscellaneous Criminal Application No. 2418 of 1999.