Jasminbhai Bharatbhai Kothari vs State Of Gujarat
2021 Latest Caselaw 5296 Guj

         R/CR.A/417/2019                                             IA ORDER



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     CRIMINAL MISC.APPLICATION (TEMPORARY BAIL) NO. 6 of 2021
                In R/CRIMINAL APPEAL NO. 417 of 2019
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JASMINBHAI BHARATBHAI KOTHARI THRO SAMPURNA @ SONALBEN JASMINBHAI KOTHARI Versus JAIL SUPERINTENDENT ========================================================== Appearance:

for the PETITIONER(s) No. MS GAYATRIBA B JADEJA for the PETITIONER(s) No. MS JIRGA JHAVERI, APP for the RESPONDENT(s) No. ==========================================================

CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA and HONOURABLE MR. JUSTICE N.V.ANJARIA

Date : 29/04/2021

IA ORDER (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Heard learned advocate Ms.Gayatriba Jadeja for the applicant and learned Additional Public Prosecutor Ms.Jirga Jhaveri for the respondents.

2. By this application filed in the proceedings of pending Criminal Appeal No.417 of 2019, the applicant has prayed for grant of temporary bail for 30 days.

2.1 The applicant has been undergoing rigorous imprisonment having been convicted and sentenced to life imprisonment pursuant to judgment and order dated 03rd November, 2018 by learned District Judge, Bhavnagar in Sessions Case No.105 of 2013. The applicant came to be convicted for offences under Section 302 of the Indian Penal Code, 1860 and

R/CR.A/417/2019 IA ORDER

Section 25(1)(B)(a) of the Arms Act.

3. The ground urged for temporary bail is that the mother of the applicant, 68 years old, requires medical treatment and for that the attendance of the applicant is required. It is stated that the mother who has been suffering from Chronic Obstructive Pulmonary Diseases was admitted to hospital during the last two weeks of March, 2021 and that she has again been admitted to one Trisha Multi Specialty Hospital from 06th April, 2021 to 09th April, 2021. It is stated that she has breathing difficulty and the doctor has advised to purchase breathing machine. According to the applicant, the breathing machine costs about Rs.01,15,000/- and that the financial arrangement is needed to be made for that purpose. Medical papers are annexed by the applicant to support the plea.

4. Learned advocate for the applicant submitted that since there is no male member in the family, release of the applicant may be permitted. It was submitted that economic condition of the applicant is not well, therefore he could not arrange further treatment of the mother in the hospital. Yet another ground was urged by learned advocate for the applicant by submitting that uncle of the father died on 06th April, 2021, whose post-death rites are also required to be performed. Learned advocate for the applicant submitted that a sympathetic view may be taken.

          R/CR.A/417/2019                                              IA ORDER



4.1           It was further submitted on behalf of the

applicant that the applicant had been absconding for 318 days when earlier granted temporary bail. It is stated by the applicant that application for regularisation for late surrender is filed before this Court, which Special Criminal Application No.2705 of 2021 is kept for orders by the Court. Learned advocate for the applicant highlighted the reasons stated in paragraph-10 of the present application as to why the applicant could not surrender for 318 days.

4.2 On the other hand, learned Additional Public Prosecutor opposed the prayer by submitting that no cogent ground exists.

5. This Court called for jail report of the applicant-convict which was produced by learned Additional Public Prosecutor.

5.1 As far as the grounds mentioned in the application are concerned, we are hardly convinced about the reason that the applicant's release could be granted for after-death ceremony of father's uncle. As far as the ground of mother's illness is concerned, the same is sought to be supported by producing medical papers. However, when the jail record is perused, it is reflected therein that when the applicant was released on temporary bail for 14 days on the ground of payment of school fees of the children in the year 2019, he did not surrender for 333 days and remain absconded for 318 days. He was at

R/CR.A/417/2019 IA ORDER

that time released for 15 days from 01st June, 2019 to 16th June, 2019 pursuant to order dated 30th May, 2019 passed by this Court in Criminal Miscellaneous Application No.9 of 2019. The applicant remained absconded from 16th June, 2019 to 29th April, 2020. The applicant was arrested by the police and thereafter was lodged in the jail.

5.2 Prior to this also, there was an instance of applicant having absconded for few days when he was temporarily released in the year 2017. While the abscondence of 318 days is sought to be justified on the stock grounds, we are hardly concerned with the grounds. What has to weigh for the purpose of considering the plea of temporary bail is the conduct of the applicant-convict. The convict who has history of long abscondence, cannot be trusted to be granted temporary bail when otherwise also the ground put- forth, did not persuade the Court.

6. Yet another aspect could be noticed from the jail record. Another case under the Prohibition Act came to be registered against him and the F.I.R. was filed against him in the year 2020 with Rajula Police Station. The applicant was not granted bail in respect of this offence. What is noticeable is that this offence appears to have been committed during the period when the applicant absconded as above for 318 days between June, 2019 to April, 2020. This reflect the criminal antecedent and history of the applicant.

         R/CR.A/417/2019                                         IA ORDER



6.1          In      view       of    history       of   abscondence             and

further the applicant having found to have committed offence during the period of abscondence, we are not inclined to grant temporary bail to the applicant. About plea of mother's illness raised by the applicant, we observe that the jail authorities may assist the applicant in securing medical treatment for his mother through the governmental schemes as may be prevalent.

7. For all the aforesaid reasons, the Court is not inclined to consider the prayer for granting temporary bail. This application is accordingly rejected.

(R.M.CHHAYA, J)

(N.V.ANJARIA, J) ANUP