CR.A/187720/2008 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1877 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE R.P.DHOLAKIA : Sd/- HONOURABLE MR.JUSTICE DN PATEL : Sd/- ======================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ======================================================= SHAHNAVAJ @ SHANU MOH'DBHAI GANDHI - Appellant(s) Versus STATE OF GUJARAT - Opponent(s) ======================================================= Appearance : MR BM GUPTA for Appellant(s) : 1, MR JM PANCHL SPL. PP for Opponent(s) : 1, ======================================================= CORAM : HONOURABLE MR.JUSTICE R.P.DHOLAKIA and HONOURABLE MR.JUSTICE DN PATEL CR.A/187720/2008 2/7 JUDGMENT Date : 09/09/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.P.DHOLAKIA) 1. The present Criminal Appeal under Section 34 of the Prevention of Terrorism Act has been preferred by the appellant-original accused no.21 for releasing him on regular bail in connection with DCB Crime Police Station, Ahmedabad I-C.R.No.6/2003 (POTA Case No.12/2003). 2. Heard learned counsel appearing for the respective parties and perused the records. 3. Learned counsel, Mr.Gupta has drawn our attention towards the order passed by the Hon'ble Supreme Court passed in Criminal Appeal No.757/2007 arising out of S.L.P. (Cri.) No.754/2007, more particularly, paragraph no.21 of the said order, wherein the Hon'ble Supreme Court has observed as under :- “In this view of the matter, we are of the opinion that the interest of justice shall be subserved if the learned Designated Judge is directed to conclude the trial as expeditiously as possible and preferably within six months from the date of communication of this order. With this observation, the appeals are dismissed.” CR.A/187720/2008 3/7 JUDGMENT 4. Learned counsel, Mr.Gupta has argued that in the aforesaid order, direction was given to complete the trial within six months, however, though six months have been passed, the trial is not yet completed. It is also argued that most of the important witnesses have been examined and, therefore, it is requested that the appellant may be released on bail. 5. Learned Special P.P., Mr.Panchal has drawn our attention that here in this case, the prosecution has already examined about 168 witnesses and now approximately 30-35 witnesses are to be examined and the Court is also taking care to deal with the matter as early as possible, for which, the concerned Judge is visiting and conducting the trial in the Central Jail itself and, hence, the trial will be completed as early as possible. 6. We have carefully gone through the confessional statement of the present appellant recorded under Section 32 of the POTA Act. 7. We have considered the Judgment delivered by the Hon'ble Supreme Court in the case of Afzalkhan @ Babu Murthuzakhan Pathan V/s. State of Gujarat CR.A/187720/2008 4/7 JUDGMENT reported in 2007 (3) GLR 2283, which is equivalent to (2007) 3 SCC (Cri) 563 arising out of the same Crime Register Number i.e. DCB Crime Police Station, Ahmedabad I-C.R.No.6/2003, wherein it has held by the Hon'ble Supreme Court in the case of co-accused that this is a very serious offence, which affects the society at large targeting the people, wherein foreign fund is involved and ultimately direction was given to dispose of Criminal Case by the Trial Court within a period of six months. It has been further held in paragraph nos.20 and 21 as under :- “20. In a case of this nature, it is very difficult to say at this stage as to whether they are parties to the larger conspiracy or not. In the evidence, it is alleged that one of the appellants had gone for training to Pakistan, another had provided money and he had been in possession of a large quantity of arms. A strong prima facie case has been made out against the appellants herein. Their release at this juncture may hamper the smooth conduct of trial since many witnesses are ye to be examined. One of the appellants hails from a different State. It may be difficulty to secure his presence, if released on bail at this crucial juncture. 21. In this view of the matter, we are of the opinion that the interest of justice shall be subserved if the learned Designated Judge is directed to conclude the trial as expeditiously as possible and preferably within six months from the date of communication of this order. With this observation, the appeals are dismissed.” CR.A/187720/2008 5/7 JUDGMENT 8. We have also considered the judgment delivered by the Hon'ble Supreme Court in the case of Devender Pal Singh V/s. State N.C.T. of Delhi & Anr. reported in AIR 2002 SC 1661, wherein it has been held by the Hon'ble Supreme Court that the confessional statement is a substantial piece of evidence. In the facts of the present case, the confessional statement of the present appellant is on record and thus there is a prima-facie case against the present appellant and the trial Court is proceeding with the matter on day-to-day basis. In this set of circumstances, we are not inclined to release the appellant on bail. 9. In view of the above, we are of the opinion that the Court below is conducting the matter as directed by the Hon'ble Apex Court. The Court below has also allotted three days in a week for conducting the matter. Over and above this, though this being serious offence having voluminous record, the Court below has already examined about 168 witnesses and now only 30-35 witnesses are to be examined and trial will be over in near future. No ground is made out for granting bail to the appellant. However, the Court below is hereby CR.A/187720/2008 6/7 JUDGMENT directed to complete the trial as early as possible. 10. It is to be noted by the Trial Court that whenever Sessions Cases are going on on a day-to-day basis like the present one and when sizeable number of prosecution witnesses are examined, application for bail by the accused cannot be entertained by the Trial Court, more particularly when it is a successive bail application. In this set of circumstances, the Trial Court ought to have rejected the successive bail application when the examination of the witnesses is going on. In the facts of the present case, as many as 168 prosecution witnesses have been examined and the trial is at its fag end and only 30-35 witnesses are to be examined and in a week, three days have been alloted by the trial Court for this very matter. 11. In view of the above, we hereby direct the trial Court that whenever most of the prosecution witnesses have been examined and when it is a successive bail application preferred by the accused in a serious case like the present one, the CR.A/187720/2008 7/7 JUDGMENT bail ought not to be granted and for the purpose of deciding the successive bail application, no detailed reasons are required to be given except that it is a successive bail application and it is required to be dealt with qua change in circumstances. 12. With this observation and direction, this Criminal Appeal stands disposed of. Notice is discharged. Sd/- Sd/- (R.P.DHOLAKIA, J.) (D.N. PATEL, J.) /patil