Mohd. Siddique @ Ganti Rafikbhai VorA. Vs. State of Gujarat. - Court Judgment

Excerpt:
[markandey katju ; gyan sudha misra, jj.] - code of civil procedure (c.p.c.) 1908 - section 151 - saving of inherent powers of court -- this appeal has been filed against the impugned judgment and order dated 21.5.2004 passed by learned single judge of the patna high court in civil revision no. 945 of 2002. while the aforesaid partition suit was pending, the defendants smt. pushpa biswas and apurva kumar biswas executed a general power of attorney on 31.7.1992 in favour of umesh chandra and dr. sanjeev kumar mishra and the same was registered. pushpa biswas and apurva kumar biswas cannot be allowed to say that their own act of signing the compromise petition was collusive and fraudulent. the high court has observed that defendants nos. 2 and 2a viz., pushpa biswas and apurva kumar biswas..........trial against the present petitioner, cannot be presumed, at this stage. only on the ground that the petitioner was not available to face the trial for 13 long years, this application requires to be rejected.5. one of the prime consideration before the court, while examining a bail application shall be, whether the accused, if released, would be available for trial. in the present case, since, this vital condition fails, the request of the petitioner for grant of bail cannot be accepted.6. in the result, this petition is dismissed.

Judgment:
1. Petitioner seeks regular bail in connection with the FIR, bearing I-C.R. No.198 of 1997, registered with Dani Limda Police Station, for the offences punishable under Sections-302, 120(B), 201, 202 and 114 of the Indian Penal Code, Section-135(1) of the Bombay Police Act and Sections-25(1)(A) and (B) of the Arms Act. The complaint was filed on 23.11.1997. The petitioner, however, could be arrested only on 28.07.2010. The petitioner, therefore, remained absconding for a period of about 13 years.

2. Under the circumstances, the petitioner cannot be expected to come back to face the trial, if released on bail. Only on this ground, I am not inclined to accept the request of the petitioner.

3. Learned Counsel for the petitioner submitted that the other accused have been acquitted by the trial Court and such acquittals have been upheld by the High Court.

4. This is, however, an entirely different aspect of the matter. Since, in the cases of the other accused persons, the decisions have been rendered on the basis of the evidence on record. What will be the outcome of the trial against the present petitioner, cannot be presumed, at this stage. Only on the ground that the petitioner was not available to face the trial for 13 long years, this application requires to be rejected.

5. One of the prime consideration before the Court, while examining a bail application shall be, whether the accused, if released, would be available for trial. In the present case, since, this vital condition fails, the request of the petitioner for grant of bail cannot be accepted.

6. In the result, this petition is DISMISSED.