ITEM NO COURT NO.12 SECTION II-B S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS. Criminal Appeal No(s).

Transcription

1 ITEM NO COURT NO.12 SECTION II-B 1 S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Criminal Appeal No(s). 859/2018 KISHAN KHUBCHAND KORANI & ANR. Appellant(s) VERSUS THE STATE OF GUJARAT & ANR. Respondent(s) (IA 75169/2018-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA-75170/2018-EXEMPTION FROM FILING O.T.) WITH Crl.A. No /2018 (II-B) IA /2018-APPLICATION FOR EXEMPTION FROM FILING THE PLAIN COPY OF I/JUDGMENT AND TRIAL COURT JUDGMENT Crl.A. No /2018 (II-B) IA EXEMPTION FORM FILING C/C OF THE IMPUGNED JUDGMENT SLP(Crl) No. 8726/2018 (II-B) IA-18328/2018-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT SLP(Crl) No. 8835/2018 (II-B) IA /2018 FOR EXEMPTION FROM FILING O.T. IA /2018 FOR PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS) Crl.A. No /2018 (II-B) (IA No /2018-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA No /2018-GRANT OF BAIL IA No /2018-EXEMPTION FROM FILING O.T. AND IA No /2018-PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS) Diary No(s) /2018 (FOR ADMISSION and I.R. IA No /2018-CONDONATION OF DELAY IN FILING IA No /2018-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA No /2018-PERMISSION TO FILE SLP WITHOUT CERTIFIED/PLAIN COPY OF IMPUGNED ORDER Date : These matters were called on for hearing today. CORAM : HON'BLE MR. JUSTICE A.M. KHANWILKAR HON'BLE MR. JUSTICE AJAY RASTOGI

2 2 For Appellant(s) Mr. V. Giri, Sr. Adv. Mr. Nikhil Goel, AOR Ms. Naveen Goel, Adv. Mr. Jay M. Thakker, Adv. Mr. Rahul r. Dholakia, Adv. Mr. S.B. Upadhyay, Sr. Adv. Mr. Pawan Upadhyay, Adv. Mr. Sarvjit Pratap Singh, Adv. Mr. Nishant Kr., Adv. Ms. Anisha Upadhyay, Adv. Mr. Binod Kr. Behera, Adv. Ms. Swati Smita Pati, Adv. Ms. Sharmila Upadhyay, AOR *Mr. Basant R., Sr. Adv. Ms. Archana Pathak Dave, AOR Mr. Sunil Mehta, Adv. Mr. Ashwin Kumar D.S, Adv. Ms. Surbhi Mehta, AOR Mr. Mahesh Jethmalani, Sr. Adv. Ms. Rashmi Singhania, AOR Mr. Samandri Goud, Adv. Mr. Bhakti Vardhan Singh, AOR Mr. Krutin Joshi, Adv. Mr. Pushpinder Singh, Adv. Mr. Amit Kumar Pathak, Adv. For Respondent(s) Mr. Tushar Mehta, S.G. Ms. Hemantika Wahi, AOR Mr. R.C. Kodekar, av. Ms. Vishakha, Adv. Ms. Aparna Bhat, AOR Mr. Tipoo N., Adv. Mr. P. Ramesh Kumar, Adv. Ms. Shivangi Singh, Adv. UPON hearing the counsel the Court made the following O R D E R Criminal Appeal 859/2018 Re.: Appellant No.1/Accused No.20 (Kishan Khubchand Korani) Heard learned counsel for the parties. This Court while considering the application

3 3 for exemption from surrendering on concerning the accused-appellant No.1 referred to paragraphs 3 and 4 of the High Court order dated , granting bail on medical grounds. Upon perusal of the record, we find that the High Court had suspended the sentence qua the accused-appellant No.1 (Kishan Khubchand Korani) for the reasons recorded in paragraphs 3 and 4 of the order dated as under:- xxx xxx xxx 3. On the other hand, Mr. R.C. Kodekar, learned Special Public Prosecutor for the respondent has placed on record the verification report issued by the Chief R.M.O., The Gujarat Cancer & Research Institute which indicates that the cause stated in the application is genuine. As per the certificate issued by the Chief R.M.O., the Gastrointestinal stromal tumor was primary diagnosis, subsequently, the applicant developed metastasis in liver for which he was operated in Apollo Hospital. Now, he has developed metastasis in residual liver. This is due to systematic spread of the tumor which is considered as hematogenous spread. The certificate further states that GIST is a disease which can still spread due to microscopic tumor embolus and that the development of compression fracture at L1 vertebra may affect the lower limb movement of the patient. It is further stated that to the best of the knowledge of the authorities, treatment for cancer as has been suggested cannot be provided at the jail hospital. 4. A perusal of the record of the case reveals that since the applicant is suffering from cancer, he is required to be provided constant medical treatment and the cancer has spread to a great extent. The facts stated in the application have been verified and are supported by the certificate

4 4 issued by The Gujarat Cancer & Research Institute. In the aforesaid premises, considering the condition of the applicant, which reveals that he is not in a position to perform his routine activities and that the jail authorities would not be in a position to provide him proper medical treatment, the court is inclined to exercise discretion in favour of the applicant. However, it is clarified that this court has not gone into the merits of the impugned judgment and order and this order granting bail is made only on medical grounds and shall not be treated as a precedent. xxx xxx xxx The medical condition of the accusedappellant No.1 remains the same. It is submitted that, in fact, it has worsened over a period of time, as is noticed from the medical record referred to in Crl.M.P. No of Besides, there is nothing to show that the appellant No.1 had jumped any condition of bail as specified in paragraph 5 of the High Court order dated , which reads thus :- (a) (b) (c) (d) He shall not take undue advantage of his liberty or misuse his liberty. He shall not act in a manner injurious to the interest of the prosecution. He shall maintain law and order. As and when he leaves the State of Gujarat for medical treatment, the concerned police authority shall be duly intimated about the same.

5 5 (e) (f) He shall surrender his passport, if any, to the lower Court within a week and if does not possess any passport, then he shall make a declaration to that effect before the trial Court. If during the pendency of the criminal appeal, any change in his residential address, permanent or temporary, takes place, then the applicant shall intimate the same to the trial court as well as the concerned police station. The accused-appellant No.1 is willing to abide by these conditions, if granted bail during the pendency of the appeal. In view of the above, we grant bail to accused-appellant No.1 (Kishan Khubchand Korani) to the satisfaction of the trial court on the same conditions as imposed by the High Court noted above during the pendency of this appeal. Ordered accordingly. Criminal Appeal No. 859/2018 Re.: Appellant No.2/Accused No.41 Manoj Sindhi, s/o Renumal Kukrani) Heard learned counsel for the parties. This Court while considering the application for exemption from surrendering on concerning the accused-appellant No.2 referred to paragraphs 3 and 4 of the High Court order dated

6 , granting bail on medical grounds. 6 Upon perusal of the record, we find that the High Court had suspended the sentence qua the accused-appellant No.2 Manoj Sindhi) for the reasons recorded in paragraphs 3 and 4 of the order dated as under: xxx xxx xxx 3. Mr. P.G. Desai, Senior Advocate, learned counsel appearing with Mr. R.C. Kodekar, learned Special Public Prosecutor for the respondents has placed on record a report of the Assistant sub-inspector, SIT, Godhra Riot Cases, Gandhinagar alongwith a report of the Inquiry Committee dated of the Civil Hospital, Ahmedabad indicating that the applicant is not in a position to move his right side limbs, does not sit or turn around or hold his head. The report further reveals that the applicant is required to use a catheter and is on treatment for diabetes in the form of Insulin injections, on antibiotics for urinary tract infection, antihypertensives, antiepileptics and dual antiplatelets and that the MRI of the brain indicates that there is a marginal increase in the size of few white matter lesions with appearance of few new lesions which show signs of progression of a new disease. The report also shows that the applicant requires assistance to carry out his daily routine activities. 4. From the submissions advanced by the learned counsel for the respective parties and the medical case papers produced on record, it appears that considering the ailments with which the applicant is suffering from, his condition is not likely to improve. Having regard to the fact that the applicant is suffering from Paralysis

7 7 and is disabled to the extent of 80% and is not in a position to carry out his day to day activities on his own, the court is inclined to exercise discretion in favour of the applicant and enlarge him on bail during the pendency of the appeal. xxx xxx xxx The medical condition of the accusedappellant No.2 remains the same. It is submitted that, in fact, it has worsened over a period of time, as is noticed from the medical record referred to in Crl.M.P. No of Besides, there is nothing to show that the appellant No.2 had jumped any condition of bail as specified in paragraph 5 of the High Court order dated , which reads thus :- (a) (b) (c) (d) He shall not take undue advantage of his liberty or abuse his liberty; He shall maintain law and order; He shall surrender his passport, if any, to the lower court within a week and if he does not possess any passport, then he shall make a declaration to that effect before the trial court; If during the pendency of the criminal appeal any change in his residential address, permanent or temporary, takes place, then the applicant shall intimate the same to the trial court as well as the concerned Police Station. The accused-appellant No.2 is willing to

8 8 abide by these conditions, if granted bail during the pendency of the appeal. In view of the above, we grant bail to accused-appellant No.2 Manoj Sindhi) to the satisfaction of the trial Court on the same conditions as imposed by the High Court noted above during the pendency of this appeal. Ordered accordingly. Crl.A. Nos /2018 Learned counsel for the State prays for one week time to file response to Crl. Misc. Application No /2018 in Crl. Appeal Nos of 2018 filed by the Umeshbhai Surabhai Bharwad (A-17). List on 13 th December, Crl.A. Nos /2018 & /2018 and SLP(Crl) Nos. 8726/2018, 8835/2018 List on 13 th December, Diary No(s) /2018 Permission to file special leave petition is granted. Application for exemption from filing impugned judgment is allowed.

9 9 Delay condoned. Leave granted. Issue notice on prayer for interim relief. Tag with Criminal Appeal No.859 of List on 13 th December, Learned counsel for the appellant is permitted to serve the standing counsel for the State. (NEETU KHAJURIA) COURT MASTER (SAROJ KUMARI GAUR) COURT MASTER * Appearance slip not given