RAJENDRA BHARATBHAI RAVAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard Mr.B.B. Naik, learned counsel appearing with Mr.D.P. Kinariwala and Mr.C.B. Gupta for the applicant. This is an application praying for bail under Section 389 of the Code of Criminal Procedure, 1973. The applicant is a convict who has been sentenced for 10 years' rigorous imprisonment for the offence punishable under Section 304-I of the Indian Penal Code. Some of the co-accused have been awarded lesser punishment. They were on bail pending trial and it is submitted by Mr.Naik that this Court, considering the quantum of punishment imposed to those accused, have enlarged them on bail.

(2.) All the accused have been held guilty for the offence punishable under Section 304-I read with Section 34 of the Indian Penal Code. The accused no.3-Vijay Balubhai Naidu, who has been awarded sentence of five years has been refused bail because he is found involved in one another grave offence by the Court when the bail plea of orig.accused no.3 was considered.

(3.) Mr.Naik, learned counsel appearing for the applicant, has taken us through the facts of the case and has attempted to point out that the incident in question has occurred in the area which can be said to be the area of accused persons and there is no adequate evidence as to the intention of the accused and, therefore, the learned trial Judge by passing a reasoned order has acquitted all the accused from the charge of offence punishable under Section 302 of the Indian Penal Code. If the opponent-State is even intending to file any appeal against the judgment and order of acquittal on account of the acquittal of the accused persons from the charge of offence punishable under Section 302 of Indian Penal Code, it would not be a matter of much relevance and the Court should exercise discretionary jurisdiction vested with the Court, especially when the Court has admitted the appeal on 04th October, 2006 and there is no scope to hear and dispose of the appeal in a reasonable period of time. Mr.Naik has drawn attention of the Court towards the number of pending appeals and it is submitted that at present though two Benches are taking up the appeals against the judgment and order of conviction, the appeals filed in the year 2002-03 are being heard; even in the case of sentence of fixed period. When the accused is not found guilty of the offence punishable under Section 302 of the Indian Penal Code, the Court should liberally exercise jurisdiction, pending hearing and final disposal of the appeal, and the substantive sentence should be placed under suspension. The accused is ready and willing to abide by any condition that may be imposed by this Court. According to Mr.Naik, the appellant has a fairly arguable case and he should not be kept in prison for more than reasonable period. He is in prison since August, 2001. Even for the sake of argument if it is accepted that the judgment and order of conviction and sentence passed by the trial Court was a good and sustainable order, even then the accused when has undergone more than 50% of sentence, ignoring the period of remission for which he may be entitled, the Court when has admitted the appeal, considering the strength of the case of the applicant, should exercise discretionary jurisdiction vested with it in favour of the applicant-accused. While developing this argument, Mr.Naik has taken us through the observations made by the Apex Court in the case of Supreme Court Legal Aid committee v. Union of India, reported in 1994 AIR SCW 5115. We have considered the relevant paragraph nos.15 to 18 of the judgment and the directions issued by the Apex Court enumerated in paragraph no.15. The Apex Court has made these observations in reference to Articles 21, 14 and 19 of the Constitution of India and the cases pending against the undertrial were not the facts of the grievance brought before the Apex Court by the Supreme Court Legal Aid Committee representing the undertrial prisoners. The status of the present applicant cannot be equated with the undertrial prisoners because now there is no presumption of innocence against the present applicant. Of course, the ratio of the decision in the case of Bhagwan Rama Shinde Gosai, reported in 1999 SCC (Cri.) 553, is able to give some force to the arguments advanced by Mr.Naik, where the Apex Court has observed that when a suspension of substantive sentence is prayed for pending appeal by the applicant-accused, such a prayer should be considered liberally, unless there is any statutory restriction. Such discretion should be exercised in cases where sentence is of limited period. But according to us in the case of Bhagwan Rama (supra), the High Court has not even shown any inclination to hear the appeal of the applicant expeditiously. According to us, when the Apex Court found that in this situation a very valuable right of appeal would be rendered fruitless by aflux of time. The period of imprisonment in the case of Bhagwan Rama (supra) was also 10 years and the accused was held guilty for the offence punishable under Section 392 read with Section 397 of the Indian Penal Code; but in the present case, the Court has admitted the appeal very recently on 04th October, 2006. Now more than one Bench is dealing with the appeal against the judgment and order of conviction and it is possible to see that the registry is directed to prepare the paper-book as expeditiously as possible. When the accused was not on bail pending trial, the yardstick would be somewhat different when it comes to a question of granting bail under Section 389 of the Code of Criminal Procedure, 1973. On plain reading of the decision in the case of Bhagwan Rama (supra), it is not possible for us whether he was on bail pending trial or not. It is likely that he may be in prison pending trial because he had remained in jail for pretty long time. According to Mr.Naik, when the present applicant-accused had remained in jail as an undertrial because of protraction of trial for a long period and the scope of protraction of hearing of the appeal tilts the balance in favour of the applicant and, therefore, the Court should exercise discretion.