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2022 DIGILAW 221 (GUJ)

Manishbhai Dudabhai Baraiya v. State of Gujarat

2022-02-07

B.N.KARIA

body2022
JUDGMENT : B.N. Karia, J. ORAL ORDER IN CR. A. 313 of 2022 1. By way of present appeal, the present appellant has challenged the judgment and order dated 20.01.2022 passed by the learned Special (POCSO Court), 5th Additional Fast Track Court, Surat in Special Case (POCSO) No. 187 of 2018, wherein the appellant was charged for the offence punishable under Sections 354(A)1-(i)(ii), 354(c), 354(D)(1)(i) and 506 of the Indian Penal Code and Sections 11(1)(2) and 12 of the Protection of Children from Sexual Offences Act, 2012 and the appellant has been tried for the said offence and at the conclusion of the trial, the learned Special (POCSO Court) convicted the appellant for three years regular imprisonment. 2. Heard leaned advocate for the appellant. 3. It is submitted by learned advocate for the appellant that the FIR is late by 11/12 days and an FIR was registered by the father of the prosecutrix against the appellant regarding some scuffle. It is further submitted that in furtherance of that scuffle, the present FIR was registered and there are no independent witnesses. It is further submitted that the locality is densely populated and the prosecution could have easily examined any independent witness and the alleged incident occurred in an apartment having 3 apartments on the same floor. It is further submitted that as per the prosecution case, one chit was given to the prosecutrix containing a phone number of the accused, however, no chit was ever produced during the trial. It is further submitted that there was no panchnama of the spot of incidence. 4. Issue requires consideration. 5. Admit. Learned APP waives service of admission for and on behalf of the respondent-State. ORAL ORDER IN CR.M.A. 1 of 2022 6. Rule. Learned APP waives service of notice of Rule for and on behalf of the respondent-State. 7. By preferring present application, applicant has prayed for the following relief(s): "(A) YOUR LORDSHIPS be pleased to allow this application in the interest of justice. (B) YOUR LORDSHIPS be pleased to allow this application by enlarging the applicant on bail or suspend the sentence pending criminal appeal against the impugned judgment/order passed by the Ld. Special (POCSO Court), 5th Additional Fast Track Court, Surat, Special Case (POCSO) No. 187/2018 dated 20.01.2022 on appropriate terms and conditions in the interest of justice. (B) YOUR LORDSHIPS be pleased to allow this application by enlarging the applicant on bail or suspend the sentence pending criminal appeal against the impugned judgment/order passed by the Ld. Special (POCSO Court), 5th Additional Fast Track Court, Surat, Special Case (POCSO) No. 187/2018 dated 20.01.2022 on appropriate terms and conditions in the interest of justice. (C) YOUR LORDSHIPS be pleased to pending, admission, and hearing and till final disposal of the present Criminal Appeal this Hon'ble Court be pleased to enlarge the appellant on Bail/sentence may be suspended in the interest of justice. (D) YOUR LORDSHIPS be pleased to grant such other and further relief(s) as deemed fit in the interest of justice." 8. Heard learned advocate for the applicant and learned APP for the respondent-State. 9. It is submitted by learned advocate for the applicant that the FIR is late by 11/12 days and an FIR was registered by the father of the prosecutrix against the applicant regarding some scuffle. It is further submitted that in furtherance of that scuffle, the present FIR was registered and there are no independent witnesses. It is further submitted that the locality is densely populated and the prosecution could have easily examined any independent witness and the alleged incident occurred in an apartment having 3 apartments on the same floor. It is further submitted that as per the prosecution case, one chit was given to the prosecutrix containing a phone number of the accused, however, no chit was ever produced during the trial. It is further submitted that there was no panchnama of the spot of incidence. It is further submitted that the applicant has all chances of succeeding in appeal and looking to the pendency of appeal and backlog of cases, this appeal is not likely to be taken up for hearing in near future and hence, just because of this reason, the applicant, who has strong prima facie case on merits, may not suffer behind the bars and hence, sentence be suspended during the pendency of criminal appeal. 10. Learned APP for the respondent-State has objected in granting the prayer of suspending the sentence imposed by the Sessions Court submitting that ample evidence was produced by the prosecution and therefore, the applicant cannot be released on bail. Hence, it is requested by learned APP for the respondent-State to dismiss this application. 11. 10. Learned APP for the respondent-State has objected in granting the prayer of suspending the sentence imposed by the Sessions Court submitting that ample evidence was produced by the prosecution and therefore, the applicant cannot be released on bail. Hence, it is requested by learned APP for the respondent-State to dismiss this application. 11. Having heard learned advocate for the applicant as well as learned APP for the respondent-State and perused the material on record as well as contentions raised by the applicant, it appears that the Trial Court has convicted the present applicant and imposed three years of regular imprisonment along with fine for the offence punishable under Sections 354(A)1-(i)(ii), 354(c), 354(D)(1)(i) and 506(2) of the Indian Penal Code and Sections 11(1)(2) of the Protection of Children from Sexual Offences (POCSO) Act, 2012. It also appears that as per the submissions made by learned advocate for the applicant, he has deposited fine amount of Rs. 15,000/- before the Trial Court. Admittedly, the applicant was released on bail during the entire trial and there is nothing on record that liberty granted by the Trial Court was misused by the applicant and the appeal is preferred by the present applicant challenging the impugned judgment and order passed by the POCSO Court. There would not be possible to hear the appeal finally in near future looking to the pendency of the cases before this Court. Learned Division Bench of this Court, in Criminal Misc. Application No. 15020 of 2017 in Criminal Appeal No. 1177 of 2016, has held as under: "33. We have applied the test of the principles enunciated by the Supreme Court in the judgments discussed hereinabove, to the facts and circumstances of the present case, while keeping all aspects of the matter including the nature of the offence and its possible social implications in mind, vis-a-vis the liberty of the convicted applicant. The sentence imposed upon the applicant is for a limited duration, namely, imprisonment for seven years. Though the criminal appeal preferred by him has been admitted, there does not appear to be any likelihood that it would be heard and disposed of in the near future. The learned Special Public Prosecutor has submitted that the SIT has sought approval from the State Government to challenge the acquittal of the applicant under Section 302 of the IPC and also to prefer an appeal for enhancement of the sentence. The learned Special Public Prosecutor has submitted that the SIT has sought approval from the State Government to challenge the acquittal of the applicant under Section 302 of the IPC and also to prefer an appeal for enhancement of the sentence. Such an appeal has not been filed so far but if filed in future, it would have to be heard along with the criminal appeal preferred by the applicant. There would be other appeals of convicted persons and all appeals would be heard together, as is the usual practice. The expeditious disposal of the appeals(s), therefore, cannot be said to be a possibility that can be banked upon, with any amount of certainty." 12. Considering the aforesaid facts and circumstances of the present case, the prayer made by the applicant requires to be accepted. 13. For the aforesaid reasons, present application stands allowed. Prayers made in Paragraphs-12(B) and (C) are allowed and the sentence imposed by the learned Special (POCSO Court), 5th Additional Fast Track Court, Surat in Special Case (POCSO) No. 187 of 2018 vide the judgment and order dated 20.01.2022 shall be suspended pending hearing and final disposal of the main Criminal Appeal and the applicant is ordered to be released on bail on furnishing personal bond of Rs. 10,000/- (Rupees Ten thousand only) with solvent surety of the like amount to the satisfaction of the trial court and on the following conditions: [a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injurious to the interest of the prosecution; [c] surrender passport, if any, to the lower court within a week; [d] not leave India without prior permission of the concerned Trial Court; [e] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court; Rule is made absolute accordingly. Registry is directed to send a copy of this order to the concerned Jail Authority as well as learned Sessions Court concerned through fax or email forthwith.