vismay shah (bmw hit and run case, ahmedabad) judgment of gujarat high court of rejection of bail...

R/CR.MA/13488/2015 CAV ORDER

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO. 13488 of 2015

In CRIMINAL APPEAL NO. 864 of 2015

==========================================================

VISMAY AMITBHAI SHAH....Applicant(s)Versus

STATE OF GUJARAT....Respondent(s)==========================================================

Appearance:MR YOGESH S.LAKHANI, Senior Advocate with MR MAUNISH T PATHAK, ADVOCATE for the Applicant(s) No. 1MR RC KODEKAR, SPL.PUBLIC PROSECUTOR for the Respondent No. 1==========================================================

CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 20/07/2015

CAV ORDER

This is an application u/s.389 of Code of

Criminal Procedure seeking suspension of sentence

and releasing the applicant accused on bail as

he is taken in custody because of judgment of

conviction dated 13.7.2015 by the 2nd

Addl.Sessions Judge, Ahmedabad (Rural) in

Sessions Case no.41 of 2013. By impugned

judgment, the applicant has been convicted

u/ss.279, 427, 304 Part II of the Indian Penal

Code as well as Section 134(1) r/w.Sections 177

and 184 of the Motor Vehicles Act, 1988 for

driving his vehicle rashly and negligently so as

to result into death of two persons on 24.02.2013

in Ahmedabad City. That the Sessions Court has

awarded various punishments between 6 months to

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five years for different offences, and thereby,

maximum imprisonment awarded is five years with

total fine of Rs.31,000/-; whereas,u/s.357(3) of

the Code of Criminal Procedure, 1973, the accused

is directed to pay Rs.5 Lacs to both the families

of each victims. Thereby, total amount of

compensation awarded is Rs.10 Lacs. However,

there is no clarity on record that whether the

applicant has paid the amount of fine or not,

whereas compensation is to be paid within a

month, and therefore, it can be paid on or before

13.08.2015.

2. Since this application is u/s.389 of the

Cr.P.C., basic requirement of such section needs

to be taken into consideration. The bare reading

of the section makes it clear that, in general,

the Appellate Court may, for reasons to be

recorded by it in writing, order that the

execution of the sentence or order appealed

against be suspended and, also, if the convict is

in confinement, he be released on bail, or on his

own bond, pending any appeal preferred by him

against the judgment and order of conviction.

However, such powers can be exercised subject to

certain proviso viz. (1) the Appellate Courts;

before releasing on bail a convicted person, who

is convicted of an offence punishable with death

or imprisonment for life or imprisonment in terms

of not less than 10 years; shall give opportunity

to the public prosecutor for showing cause in

writing against such release and (2) in cases

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where a convict person is released on bail, it

shall be open to the public prosecutor to file an

application for cancellation of bail. Rest of the

provision of Section are not material at present.

Therefore, it becomes clear and obvious that

there are no specific reasons assigned by the

enactment for consideration of such an

application except giving an opportunity to the

public prosecutor to show cause only in cases

where sentence is for more than 10 years.

Thereby, though cases where conviction is for

imprisonment for a term less than 10 years, there

may not be a strict requirement to extend an

opportunity to the public prosecutor to show

cause that why bail should not be granted.

However,to avoid any technicality on such count,

by order dated 15.7.2015, rule was served upon

the State, though they have received advance

notice of the appeal as well as this application.

3. Therefore, the legal position can be summed-

up; relying upon the latest decision of the

Honble Supreme Court in the case of Atul

Tripathi v. State of U.P. reported in AIR 2014 SC

3062; as under:-

a. The appellate court, if inclined toconsider the release of a convict sentencedto punishment for death or imprisonment forlife or for a period of ten years or more, shall first give an opportunity to the public prosecutor to show cause in writingagainst such release.

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b. On such opportunity being given, theState is required to file its objections, if any, in writing.

c. In case the public prosecutor does not file the objections in writing, theappellate court shall, in its order, specifythat no objection had been filed despite the opportunity granted by the court.

d. The court shall judiciously considerall the relevant factors whether specifiedin the objections or not, like gravity ofoffence, nature of the crime, age,criminal antecedents of the convict,impact on public confidence in court,etc. before passing an order for release.

4. It is also necessary to record here that the

victims families are chasing the trial and

thereby they have also come forward to seek

appearance in the present appeal and application

so as to oppose the admission of the appeal and

application for bail. However, though it is

permissible, at present, to avoid further delay

in proceeding bail application, their request to

file appearance is refused with liberty to

support the learned Sp.P.P. in objecting the

application. During the course of submissions, it

is disclosed by them that they are also

preferring appropriate proceeding seeking

enhancement of sentence. Thus, when Special P.P.

and learned advocate for victims families are

opposing the bail application, it is certainly in

compliance of the first three conditions of the

above referred decision of Atul Tripathi (supra),

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though in my view,it is necessary only if

sentence is more than 10 years, whereas in the

present case, it is only five years. Applicant

has also filed compilation of relevant evidence,

copies of which is provided to other side.

5. Submissions by the learned senior counsel

Mr.Yogesh Lakhani appearing with learned advocate

Mr.Maunish Pathak for the applicant may be

summarized as under:-

5.1 The trial Court has adopted a strange

method to conclude negative findings against the

applicant that since his blood sample was not

tested for couple of days, it cannot be said that

he was not in a drunken condition, though there

is no such evidence on record that applicant has

consumed alcohol at the time of incident.

5.2 This is not a case of accident by a

vehicle with pedestrian or an occupant of

footpath, but it is an accident between two

moving vehicles and, thereby, there are

altogether different facts and evidence, and

thus, the position and situation than the well-

known cases of Sanjeev Nanda and Alister Anthony

Pereira both reported in (2012)8 SCC 450 and

(2012)2 SCC 648 respectively. Thereby, when

nature and result of the incident in the given

case is better and with less calamity, when

conviction u/s.304 Part II of the IPC is

confirmed in such reported cases, there is no

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reason to convict the present application under

such section and that too for five years.

5.3 Nature of incident requires to be

considered in detail with evidence on record,

whereby it is proved that there is no knowledge

or intention to cause death of the victim, and

therefore, conviction u/s.304 Part II of the IPC

is unwarranted and at the most, it may be

u/s.304-A of the IPC, though the stand taken by

the applicant during the trial as well as in the

appeal is of total innocence, both for the

incident and even for his identity as a driver of

the vehicle in question at the relevant time.

5.4 The investigation was not proper

inasmuch as when speed of applicants vehicle was

taken into consideration, the speed of other

vehicle being motorcycle involved in the incident

was not examined at all and no evidence has been

collected to confirm the speed of motorcycle and,

thereby, even the negligence of the victims while

driving their vehicle on road, which ultimately

resulted into their own death, is not considered.

5.5 Even the fact regarding violation of

Motor Vehicle Rules by the victim has been

ignored inasmuch as none of them have worn helmet

at the time of the incident.

5.6 Even the speed of applicants car was

not scrutinized properly and evidence on record

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regarding speed of the car is without any

scientific test, and therefore, decision on speed

and thereby conviction is based upon presumption

alone.

6. In addition to factual submissions as above,

the applicant is relying upon following

decisions:-

(1) Alister Anthony Periera Vs. State of

Maharashtra reported in (2012)2 SCC 648 from

which the learned senior counsel has read out

paragraphs 74 to 79 and 97 submitting that the

incident in the present case cannot be considered

as an offence u/s.304 Part II of the IPC, as

there was no knowledge or intention on the part

of the applicant about the result of such

incident. What is emphasised by learned senior

counsel is to the effect that when fact of the

case is different inasmuch as there is no death

of pedestrian or occupants of footpath and that

too in huge numbers and when the accident is

between two moving vehicles, there is no reason

for confirming conviction u/s.304 Part II of the

IPC.

(2) State through PS Lodhi Colony, New Delhi

Vs.Sanjeev Nanda reported in (2012)8 SCC 450, the

learned senior counsel has relied upon discussion

in paragraphs 114 to 121 of such judgment

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submitting that even for the death of number of

persons by driving vehicle without license and in

drunken state, the Honble Supreme Court has

confirmed the conviction of two years only.

Therefore, when the offence even if considered to

be proved, may fall u/s.304-A of the IPC and

conviction of five years is improper and, hence,

when appeal is not going to be heard in near

future, applicant should be released on bail.

(3) For such submission, applicant is relying

upon the decision of Kiran Kumar Vs. State of

M.P. Reported in (2001)9 SCC 211.

(4) He is also relying upon the decision of

Bhagwan Rama Shinde Gosai & Ors. Vs. State of

Gujarat reported in (1999)4 SCC 421 and Angana &

Anr. Vs. State of Rajasthan reported in 2009(2)

GLH 37; whereas relying upon the order dated

31.3.2014 in Special Leave to Appeal (Criminal)

no.1699 of 2014 by the Honble Supreme Court

granting bail in favour of the applicant, pending

trial, it is submitted that bail is granted to

the applicant with strict condition that he shall

not drive any vehicle even two wheelers during

the pendency of Criminal Case against him, and

therefore, similar condition may be imposed, but

to release the applicant on bail. He is also

relying upon the judgment and order dated

8.5.2015 in Criminal Application no.592 of 2015

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in Criminal Appeal no.572 of 2015 by the High

Court of Bombay in the case of Salman Salim Khan

Vs. The State of Maharashtra submitting that

pending appeal, bail can be granted in such a

case.

7. As against that, learned Special Public

Prosecutor has argued at length submitting that

there are several reasons for rejecting such

application. His submissions are summarized as

under:-

7.1 Now, the applicant is found guilty

beyond reasonable doubt by Trial Court whose

decision is after evaluation of evidence and,

thereby, when there is least chance of setting-

aside of conviction, sentence cannot be

suspended.

7.2 Thereby, when there is least chance of

acquittal, bail cannot be granted and sentence

cannot be suspended only because of pendency of

appeal or the period if taken in hearing of such

appeal, since State is always ready to proceed

further in any such appeal at the earliest.

7.3 According to settled legal position,

suspension of sentence is not a matter of course

and bail can be refused in absence of any

exceptional circumstances for granting the same.

7.4 The applicant has failed to show any

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exceptional circumstance to grant the bail. On

the contrary, circumstances are against the

applicant inasmuch as the applicant has flouted

atleast two conditions of bail imposed by the

Honble Supreme Court while granting him bail.

Those two conditions in order dated 31.3.2014 are

as under:-

c) He shall not directly or indirectlymake any inducement, threat or promise to any person acquainted with the facts of the caseso as to dissuade him to disclose such factsto the Court or to any other authority;xxxx xxxx xxxxx xxxx

f) He will not dispute his identity asthe accused in the case;

7.5 So far as condition (c) is concerned,

though it is a regular condition of bail, it is

certainly a strict and serious condition whereby

every accused is always restrained from making

any inducement either directly or indirectly to

any person acquainted with the facts of the case,

so as to dissuade him to disclose such fact to

the Court or to any other authority. As against

that, it is submitted that in fact as soon as

applicant has been released on bail by such order

dated 31.3.2014, he has immediately induced two

key witnesses of the incident being PWs-11 and

12, namely, Lalitkumar Rajesh Gupta and Dinesh

Mafabhai Chaudhary. Thereby, though these

witnesses have categorically stated in their

statement before the police that they have seen

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the incident and the accused coming out of the

vehicle from the drivers seat and saying sorry

to the victims and injured at the relevant time,

they turned hostile during their evidence before

the Court. But, fortunately, since they have made

similar statement regarding identification of the

accused in a live telecast of one news-channel,

the prosecution has to call for the additional

evidence from such TV Channel and has to examine

as many as eight witnesses to prove that both the

eye-witnesses are not telling the truth before

the Court and while doing so, they have produced

as many as 14 other documentary evidences on

record. After such additional evidence pursuant

to approval of recording such additional evidence

by judgment and order dated 11.12.2014 in Special

Criminal Application no.5012 of 2014, the

prosecution has proved the involvement of the

accused beyond reasonable doubt, and therefore,

when Trial Court has issued notice to such eye-

witnesses being PWs-11 and 12 for not disclosing

truth before the Court on oath, now, there is an

evidence on record that present applicant has

induced such witnesses and tried to win over them

and, thereby tried to hide his identity as an

accused and driver of the vehicle in question.

For the purpose, he is relying upon the

observation by the Co-ordinate Bench of this High

Court in such judgment dated 11.12.2014 that no

sooner the accused was ordered to be released on

bail, the most important eye-witness to the

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incident, and that too the first informant was

won-over and in the course of trial, he turned

hostile. Therefore, the High Court has allowed

the application by the father of the victim for

adducing additional evidence by calling the

relevant witnesses before whom PWs 11 and 12

have given a interview to a TV Channel stating

that how they had witnessed the incident and how

they confirmed that accused was driving the

vehicle at the time of incident.

7.6 In background of such factual details,

it is submitted that it amounts to breach of both

the conditions imposed by the Honble Supreme

Court for granting bail, which are reproduced

herein above.

7.7 So far as condition (f) regarding

identity is concerned, in addition to making an

attempt to win over the eye-witness to disprove

his identity, the applicant has not only taken

defence and plea of not driving the vehicle at

the relevant time, but had gone to the extent of

saying in his further statement u/s.313 of the

Cr.P.C. before the Court that he owns 3 to 4

vehicles, which are parked in his compound and

his family is consisting of 4 to 5 members and

whoever is in need of the vehicle may take away

any of the vehicle at any point of time and,

thereby, it is not certain that who was driving

the vehicle at the relevant time, but he was not

driving the vehicle in question at the relevant

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time and that evidence regarding his identity is

not sufficient to prove his guilt. Therefore, it

is submitted that this is nothing but breach of

condition of bail imposed by the Honble Supreme

Court, and therefore, there is no reason or

exceptional circumstance to release the applicant

on bail.

7.8 It is also submitted that conduct of the

applicant is required to be taken into

consideration inasmuch as after the incident,

instead of helping the injured and victim, either

by taking them to hospital or by calling

ambulance by dialing 108, or atleast informing

the nearby police station about the incident, the

applicant had run away from the place of incident

and though vehicle was owned by him and though

such vehicle was badly damaged and lying on road

at the place of incident, the applicant was not

available to take care of his vehicle or to

disclose that if he was not driving the vehicle

at the relevant time, then amongst his family and

drivers, who was driving the vehicle at the

relevant time. If such fact is not disclosed till

the statement u/s.313 is recorded, then, it is

certain that applicant is taking disadvantage of

procedural lacunae in investigating procedures

and advantage of judicial process. But, in any

case, he has certainly breached condition (f) of

Honble Supreme Courts order releasing him on

bail.

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7.9 So far as nature of incident is

concerned, it is submitted that the contention by

the applicant is not proper because the impact

had not resulted at the time when motorcyclist

had taken a right turn, but motorcycle was hit on

its back i.e. after the motorcycle had completed

its turn, and therefore, it is nothing, but an

attempt to misguide the Court. So far as speed is

concerned, it is submitted that the speed of the

vehicle was proved by Officer of F.S.L as well as

supplier of the vehicle, which is of BMW make

contending that their engine is equipped with

chips, which records the RPM and even thereafter

both the agencies have conducted speed test to

ascertain their result. Therefore, it cannot be

ignored. In any case, so far as speed is

concerned, it is submitted that there was

notification of local authority, restraining

over-speeding of the vehicle beyond 60 Kms. per

hour, and therefore, even if speed is somewhat

less than the report, it amounts to gross

negligence on the part of the applicant.

7.10 Learned Sp.P.P. is also relying upon

Rule 6(d) and 8 of the Rules of the Road

Regulations, 1989.

7.11 Learned Sp.P.P. through learned advocate

appearing for the victims family is also relying

upon the observations of the Honble Supreme

Court made in the same judgments of Sanjeev Nanda

& Alister Periera (supra) contending that even in

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these two judgments, Honble Supreme Court has

nowhere said that in such cases, conviction

should be u/s.304A rather than Section 304 Part

II of the IPC and read-over certain paragraphs,

which includes paragraph 35 from AIR 2012 SC

3104, wherein definition of word reckless is

considered.

7.12 Learned Sp.P.P. is relying upon

following decisions:-

a. Bhagwan Rama Shinde Gosai & Ors. Vs. State of Gujarat reported in (1999)4 SCC 421; b. Kanaka Rekha Naik Vs. Manoj Kumar Pradhan & Anr.reported in AIR 2011 SC 799;c. Central Bureau of Investigation, New Delhi Vs.Roshan Lal Saini reported in (2012)12 SCC 390;d. Shiv Kumar Vs. State of NCT of Delhi reported in (2008)17 SCC 122 and;e. K.C.Sareen Vs. CBI, Chandigarh reported in (2001)6 SCC 584;

8. However, at present I am not deciding the

appeal finally, and therefore, it would not be

necessary and appropriate to discuss all the

above evidences in detail to arrive at any

specific determination or conclusion. At present,

I have to decide the bail application to

ascertain that whether in given facts and

circumstances, the applicant may be released on

bail by suspending the sentence or not. For the

same, reference to the decision of Honble

Supreme Court in the case of Kanaka Rekha Naik vs

Manoj Kumar Pradhan & Anr reported in (2011)4 SCC

596 is relevant, wherein Honble Supreme Court

has categorically held that when a convict person

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is sentenced to a fixed period of sentence and

when he files an appeal under any statutory

right, suspension of sentence can be considered

by the appellate Court liberally unless there are

exceptional circumstances, and the sentence of a

limited duration cannot be suspended, but every

endeavour should be made to dispose of the appeal

on merits at the earliest more so when a motion

for expeditious hearing of the appeal is made in

such cases. Thereby, though, it is observed that

otherwise, the very valuable right of appeal

would be an exercise in futility by efflux of

time, suspension of sentence, pending any appeal

by a convicted person and consequential release

on bail is not a matter of course and the

appellate Court is required to record reasons in

writing for suspending the sentence and release

of a convict on bail pending the appeal. In

concluding paragraph 14, the Honble Supreme

Court has opined that nature of allegations, the

findings recorded by the trial Court and the

alleged involvement of the accused ought to have

been taken into consideration for deciding as to

whether it is a fit case for suspending the

sentence awarded by the trial Court and his

release on bail during the pendency of the

appeal.

9. In State of Karnataka Vs. Krishnappa

reported in (2000)4 SCC 75, Honble Supreme Court

has held that the sentencing Courts are expected

to consider all relevant facts and circumstance

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bearing on the question of sentence and proceed

to impose a sentence commensurate with the

gravity of the offence. Courts must hear the loud

cry for justice by the society in cases of

heinous crimes of rape on innocent helpless girls

of tender years as in this case, and respond by

imposition of proper sentence. Public abhorrence

of the crime needs reflection through imposition

of appropriate sentence by the Court. There are

no extenuating or mitigating circumstances

available on the record which may justify

imposition of any sentence less than the

prescribed minimum to the respondent. To show

mercy in the case of such a heinous crime would

be travesty of justice and the plea for leniency

is wholly misplaced. The High Court in the facts

and circumstances of the case, was not justified

in interfering with the discretion exercised by

the Trial Court and our answer to the question

posed in the earlier part of the judgment is an

emphatic No.

10. In Sadha Singh and Anr. Vs.State of Punjab

reported in (1985)3 SCC 225, a three Judge Bench

of Honble The Supreme Court of India, has

observed in paragraph 7 that if someone is

enlarged on bail during the pendency of appeal

and when the appeal is dismissed sending him back

to jail is going to raise qualms of conscience in

the Judge, granting of bail pending appeal would

be counterproductive. One can preempt or

forestall the decision by obtaining an order of

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bail.

11. In view of above facts and circumstances and

submissions by both the sides, what is required

to be considered at present is a simple issue

that whether there is an exceptional circumstance

on either side i.e. either to suspend the

sentence and thereby release the applicant on

bail or to refuse the same. The evidence on

record and submission referred herein above makes

it clear that in fact there is no exceptional

circumstance in favour of the applicant

appellant so as to immediately release him on

bail only because he has filed an appeal and only

on the ground that appeal may not be decided in

near future, more particularly, when, now,

business of Criminal Appeals have been assigned

to more than one Court even for final hearing,

whereby the jail appeals are given priority in

final hearing, and therefore, if parties are

ready to argue the appeals, there is no

difficulty in deciding such appeal at an early

date. Whereas, on the contrary, it has been

noticed that appeals are not being argued at the

earliest because of order of bail in favour of

the applicant and after long time, when appeals

are required to be argued, practically,

appellants are not available. In the present

case, both the sides have agreed that otherwise

they are ready and willing to proceed in the

appeal at the earliest, and therefore, reason for

granting bail assigned in the cases of Kiran

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Kumar & Bhagwan Rana (supra) are not material

and, hence, only because of such judgments, bail

cannot be granted without considering the settled

legal position for granting bail in any such

cases wherein in fact nature of case and other

issues are more relevant.

12. So far as exceptional circumstance in favour

of the prosecution is concerned, prosecution has

rightly pointed out and able to show with

relevant material that in fact applicant has

committed breach of condition of bail granted by

the Honble Supreme Court, and therefore, though

prosecution can pray for cancellation of his bail

pending trial, when trial is now completed and

applicant is convicted, now, he should not be

released on bail. There is certainly substance in

such submission which dis-entitles the applicant

to be released on bail. So far as other factual

submissions are concerned, since the appeal is

yet to be finally heard on its own merits, I am

avoiding detailed discussion and determination on

such factual aspects except observing that I am

not convinced by any of such arguments made on

factual basis by the applicant, which can be

treated as an exceptional circumstance in his

favour so as to release him on bail as prayed

for.

13. Therefore, the gravity of offence is serious

or severe when two young men were died, more so

due to non support by the applicant after the

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accident so as to take them to hospital, so also

the conduct of the applicant immediately after

the incident and also in flouting directions of

the Honble Supreme Court. Thus, the impact on

public confidence in Court considering the nature

of accident, its result and conduct of the

applicant, also goes against the applicant.

Hence, even if he is of young age and may not

have any criminal antecedent as proved on record

of this case, against these two neutral grounds,

when remaining three grounds goes against him, I

do not see any special or exceptional

circumstance so as to release the applicant on

bail by suspending his conviction as per impugned

judgment, where the trial Court has taken proper

care of each and all evidence and submissions

before it, so also the legal submissions.

Therefore, there seems to be very less chance of

acquittal. Then, the only care to be taken by the

appellate Court is to see that appeal is heard at

the earliest, for the purpose necessary

directions are being issued.

14. In view of above facts and circumstances,

when there is no exceptional circumstance in

favour of the applicant, as against that it is in

favour of the prosecution for not suspending the

sentence, I do not see any substance in the

application and, hence, the same deserves

dismissal. However, considering the verdict of

the Honble Apex Court in several cases, that if

sentence is not suspended, then, every endeavour

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should be made by the High Court to decide the

appeal at the earliest, it would be necessary to

direct the Registry to call for the R & P as well

as paper-book from the trial Court at the

earliest or at least before 10.8.2015 and to list

the appeal for expeditious hearing on receipt of

record and proceeding.

15. The observations and discussions in this

order is only for the purpose of deciding this

application at this stage and shall not be

considered against any litigant during the final

hearing of appeal, which will be certainly

decided on his own merits.

16. For the foregoing reasons, the Criminal

Misc.Application is dismissed with above

directions. Rule discharged.

(S.G.SHAH, J.) binoy

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vismay shah (bmw hit and run case, ahmedabad) judgment of gujarat high court of rejection of bail...

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