Gujarat High Court

Ganpatbhai Kanjibhai Jambukiya vs State Of Gujarat on 2 July, 2021

Bench: Sonia Gokani

     R/CR.A/434/2018                            IA ORDER DATED: 02/07/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


 CRIMINAL MISC.APPLICATION (MODIFICATION OF ORDER) NO. 1 of
                            2021
             In R/CRIMINAL APPEAL NO. 434 of 2018
==========================================================

BABUBHAI ALIAS NANO KANJIBHAI JAMBUKIYA Versus STATE OF GUJARAT ========================================================== Appearance:

for the PETITIONER(s) No. MR PARTH R KIKANI for the PETITIONER(s) No. MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the RESPONDENT(s) No. ==========================================================

CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI

Date : 02/07/2021

IA ORDER

1. The applicant is seeking modification of the order passed

by this Court dated 01.05.2018 in Criminal Misc. Application

No. 1 of 2018 in Criminal Appeal No. 434 of 2018. The

applicant is seeking to let him enter the agricultural land

bearing Revenue Block/Survey No. 261, 268, 306, 357, 358,

454, 585 at Village: Chharodiya, on the bank of river Bhadra,

Taluka: Dhandhuka, Distruct: Ahmedabad, for farming.

2. The applicant herein is the appellant no.3 in the Criminal

Appeal No. 434 of 2018 which has arisen from the judgment

and order of the learned 12th Additional District and Sessions

Judge, Ahmedabad (Rural) passed in Sessions Case No. 209 of

R/CR.A/434/2018 IA ORDER DATED: 02/07/2021

2016 where the Court delivered the judgment on 02.04.2018

and convicted the applicant and other co-accused under

Section 325 of the Indian Penal Code and further the has

acquittal the applicant and other co-accused under Section

307, 504, 506(2) and 114 of the Indian Penal Code.

2.1. The Criminal Appeal No. 434 of 2018 has been preferred

by the applicant and other co-accused wherein by preferring

Criminal Misc. Application No. 1 of 2018, request was made

for suspending the sentence. This Court passed an order of

suspension of sentence in favour of all the appellants on

01.05.2018.

2.2. The complainant filed an application for cancellation of

bail being Criminal Misc. Application No. 01 of 2019 in

Criminal Appeal No. 434 of 2018. This was rejected by the

Court on 02.08.2019, however, the applicant was directed to

stay out of Dhandhuka Taluka for a period of one year.

2.3. The applicant is aggrieved by his not being permitted to

enter the limit of Village: Chharodia, Taluka: Dhandhuka,

District: Ahmedabad till the criminal appeal is decided finally.

According to the applicant, the sole occupation of the

applicant is farming as he is a farmer and he is facing

financial loss since he is not permitted to enter the said land

R/CR.A/434/2018 IA ORDER DATED: 02/07/2021

for the agricultural purpose.

2.4. It is his say that his residence is only 5 kms away from

his agricultural land. No untoward incident has taken place

during the entire trial when the applicant was enlarged on

bail. Moreover, other co-convicts are permitted to carry-on

their respective professions, he therefore, has urged to delete

the said condition and allow him to enter the agriculture field.

5. This Court has issued rule on 01.04.2021 and today,

learned advocate Mr. Parth Kikani appearing for the applicant

and learned Additional Public Prosecutor Ms. Jirga Jhaveri

appearing for the State have been heard at length.

6. According to learned advocate Mr. Kikani, the entrance

of the agricultural land is around 5 kms away from his

residence. During the trial, he was permitted to enter into the

field which according to him is the only means of his

subsistence. He has no one in the family who can look after

the said land. When other two co-accused have been

permitted and have no fetters of such kind, let the applicant

also enjoy that liberty completely. He further has urged that

the strictest conditions be imposed but he be permitted to

enter his agricultural field.

R/CR.A/434/2018 IA ORDER DATED: 02/07/2021

7. This has been strongly objected to by learned APP Ms.

Jhaveri on the ground that the abutting boundaries are the

genesis of crime which has resulted into the conviction of the

present applicant. She has urged that so many complaints had

been filed every now and then the disputes in the

neighbourhood results into the law and order situation. She,

therefore, has fervently urged not to permit the applicant the

entrance to the agricultural field. She has also further urged

that the Court after due consideration has restricted his right,

when there was an occasion to deal with the application for

cancellation of bail at the behest of the complainant.

8. Having heard both the sides and also on noticing the

chronology of events in the instant case, this Court is

disinclined to accede to the request of the applicant.

9. It is to be noticed that the applicant is convicted under

Section 325 of the Indian Penal Code along with two of his

brothers. Further, the Court cannot be oblivious of the

Criminal Misc. Application (Cancellation of Bail) No. 01 of

2019 in Criminal Appeal No. 434 of 2018 where pending the

appeal, the application for cancellation of order of suspension

of sentence had been moved on account of violation of terms

and conditions where this Court chose not to enter into the

R/CR.A/434/2018 IA ORDER DATED: 02/07/2021

merits of the matter at the request of learned advocate who

appeared for the convict had urged that he was not interested

in entering the village. He also further had conveyed that the

difficulties arose as his agricultural field is in Village:

Chharodia whereas the remaining parcel of the field is in

Dhandhuka and hence, once he enters his agricultural field,

he would technically violate the conditions. He therefore, on

instruction, had conveyed to this Court that he would not be

entering the agricultural field at all. He also proposed that the

convict be permitted to install the CCTV at his residence so

that his ingress and egress can be monitored.

9.1. Apt would be to refer to some of the relevant paragraphs

of the order dated 02.08.2019 passed in Criminal Misc.

Application (Cancellation of bail) No. 01 of 2019 in Criminal

Appeal No. 434 of 2018 : -

"3. Without entering into the merits of the matter, learned Advocate, Mr. Timbalia, appearing for the appellant-convict has urged this Court that the appellant-convict is not interested in entering the village. However, the difficulties arises only on account of the fact that his agricultural field is in village Chharodiya, whereas, the remaining parcel of the field is in Dhandhuka. Therefore, as soon as he enters his agricultural field, he would be, technically, violating the one of the conditions imposed by this Court. Learned Advocate, Mr. Timbalia, on instructions has submitted that the appellant-convict will not enter his agricultural field, at all. He also proposes that the appellant-

convict be permitted to install CCTV at his

R/CR.A/434/2018 IA ORDER DATED: 02/07/2021

residence so that his ingress and egress can be monitored. He, further, has urged that any further strict conditions be imposed, which the appellant- convict would be abiding by and his appeal be also expedited.

4. Learned Advocate, Mr. Kheskani, appearing for the original complainant has urged that there are three villages in which the agricultural field of the appellant-convict is situated and he also has installed the three CCTV cameras at his residence. He is habituated of taking the law in his hands, and therefore, no strict condition would be preventing him from breaching the law. According to him, the appellantconvict should be prohibited from entering the Dhanduka Taluka and SIM and village Jaliya, both. He also, further, has urged that considering the situation and limited amenities being available at both the villages, i.e. Chharodiya and Jaliya, people often need to go to Dhandhuka, where, the appellant-convict is stationed.

5. So far as the breach of the condition of entering Chharodiya village is concerned, this Court notices that it is only the non-entering the village Chharodia alone, which is going to resolve the issue. Technically, since, the agricultural field of the appellant-convict is situated in Dhanduka and Jaliya both, if, he is permitted to enter the same, this dispute is likely to continue. This Court also notices from the chronology of the events, which have taken place and the initial complaint lodged by his brother and the volte face that he has taken subsequently, it would be in the fitness of the things to give the appellant-convict one more opportunity to mend his ways for which he is being directed to STAY OUT of the Dhandhuka Taluka for the period of ONE YEAR.

5.1 In the meantime, he shall be at liberty to make a request for early hearing of his appeal.

5.2 The police officers are also directed to ensure that any complaint in this regard, if, is made by the original complainant, they shall take prompt action and shall also ensure the safety of the witnesses.

R/CR.A/434/2018 IA ORDER DATED: 02/07/2021

Rule is made absolute, accordingly."

10. These are the sufficient details for the Court not to relax

the condition. The applicant must not forget that he is a

convict whose appeal is pending for consideration. Otherwise,

when he himself declared before this Court and was

instrumental in the Court imposing the condition for not

entering the agricultural field, this request on the ground of

the hardship can not be considered, as there are bound to be

certain fetters on the individual liberty on convict, once the

Court suspends the sentence. This is found to be the

reasonable fetter more particularly noticing the history of