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2017 DIGILAW 1530 (GUJ)

Jigneshbhai Maganbhai Barot v. State of Gujarat

2017-09-04

P.P.BHATT

body2017
ORDER : P.P. BHATT, J. 1. The present application is filed under Section 389 of the Code of Criminal Procedure, 1973 by the applicant-convict for suspension of sentence imposed upon him vide judgment and order dated 09.02.2016 passed by the learned Sessions Judge, Anand in Sessions Case No. 33/2013, whereby the learned Sessions Judge, Anand has convicted the applicant- convict for the offence punishable under Section 307 read with Section 114 of the Indian Penal Code and sentenced to undergo rigorous imprisonment of five years with fine of Rs. 20,000/- in default of payment of fine, to undergo further period of two years simple imprisonment and for the offence punishable under Section 323 read with Section 114 of the Indian Penal Code, sentenced to undergo simple imprisonment of six months with fine of Rs. 500/- in default of payment of fine, to undergo further period of two months simple imprisonment. 2. Heard the learned advocate for the applicant as well as learned APP for the respondent- State. 3. The learned advocate for the applicant by referring the evidence adduced before the learned Trial Court submits that there is no prima facie case against the applicant-convict, however, the learned Trial Court has convicted the present applicant for the alleged offences. It is also submitted that the appeal preferred by the applicant is admitted by this Court and the applicant is having good case on merits and likely to succeed in the appeal, but chances of early final hearing of present criminal appeal on account of pendency of old criminal appeals are very less. It is further submitted that the applicant is having responsibility to look after and maintain his family and further he is not likely to run away or abscond and his presence can be secured at the time of final hearing of the appeal. It is also submitted that he will abide by the terms and conditions that may be imposed by this Court and shall not commit any breach. It is further submitted that the applicant has no objection if the fine amount of Rs. 20,500/- is given to the victim, who has suffered loss on account incident. It is also submitted that he will abide by the terms and conditions that may be imposed by this Court and shall not commit any breach. It is further submitted that the applicant has no objection if the fine amount of Rs. 20,500/- is given to the victim, who has suffered loss on account incident. It is also upon instruction stated that the applicant will not claim refund if the said amount at any point of time in future even in the event of succeeding in appeal, but it is submitted that such concession may not be construed as admission of guilt. Therefore, the applicant may be enlarged on bail by suspending the sentence imposed by the learned Trial Judge. 4. Learned Additional Public Prosecutor appearing on behalf of the respondent-State while opposing the present application submits that there is sufficient evidence against the applicant, and therefore, looking to the gravity of offences, the applicant may not be enlarged on bail. 5. Regard being had to the above submissions and considering the material placed on record and considering the chances of having early final hearing of present criminal appeal on account of pendency of criminal appeals as also considering the fact that the applicant has no objection if the fine amount deposited by him is disbursed in favour of the victim-injured, this Court is of the view that in the facts and circumstances of the case, discretion is required to be exercised in favour of the applicant. Hence, the present application is allowed and the order of sentence imposed by the learned Sessions Judge, Anand in Sessions Case No. 33/2013 dated 09.02.2016 shall remain under suspension till the final hearing and disposal of the main appeal. The applicant is ordered to be released on bail on his executing a personal fresh bail bond and surety in the sum of Rs. 10,000/- (Rupees Ten Thousand only) to the satisfaction of the Trial Court on the following terms and conditions that the applicant: (a) shall deposit the passport, if any, with the Trial Court, within a week. (b) shall not leave the State of Gujarat without prior permission of the Sessions Judge concerned. (c) shall not take undue advantage of his liberty or abuse his liberty and maintain law and order. (b) shall not leave the State of Gujarat without prior permission of the Sessions Judge concerned. (c) shall not take undue advantage of his liberty or abuse his liberty and maintain law and order. (d) shall furnish latest and permanent address of residence to the Investigating Officer and absent the Court at the time of execution of the bond, and shall not change the residence without prior permission of this Court. (e) without prejudice to his rights and contentions, the fine amount of Rs. 20,500/- deposited by the applicant be disbursed in favour of the victim-injured by an account payee cheque after proper verification. 6. The withdrawal of the amount shall not be construed as admission of guilt on the part of the applicant as the amount is being deposited without prejudice to his rights and contentions. However, it is clarified that the applicant shall not claim refund of the said amount in the event of his acquittal in future. If the above condition as volunteered by the applicant will not be followed or fulfilled, the bail granted in favour of the applicant shall stand automatically cancelled without any reference to the Court. 7. Rule is made absolute accordingly. Direct Service is permitted.