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2022 DIGILAW 67 (GUJ)

Amarsang Ramaji Rajput v. State of Gujarat

2022-01-12

B.N.KARIA

body2022
JUDGMENT : B.N. Karia, J. 1. Rule. Learned APP waives service of notice of Rule for and on behalf of the respondent-State. 2. By preferring present application, applicants have prayed to release the applicants on bail during the pendency of this Revision Application by suspending the sentence imposed by learned Additional Sessions Judge, Deesa at Banaskantha in Criminal Appeal No. 28 of 2018 dated 15.09.2021 and order dated 30.03.2018 in Criminal Case No. 409 of 2015 passed by learned Magistrate Court, Dantiwada and further prayed to enlarge the applicants. 3. Heard learned advocate for the applicants and learned APP for the respondent-State. 4. It was submitted by learned advocate for the applicants that there is no prima facie case to show that the applicants had committed any of the offences as alleged in the complaint and therefore, the applicants were all throughout on bail and have not misused the liberty and have not fled from the trial. It is further submitted that the judgment and order is bad in law and not tenable in the eyes of law. It was further submitted that revision is not likely to be heard in short future and there is no possibility of hearing revision in near future and if the sentence will not be suspended, the applicants will be compelled to remain in prison though they are innocent and they are able to prove their innocence and convincing the Court. Hence, it was requested by learned advocate for the applicants to release the applicants on bail during the pendency of this Revision Application by suspending the sentence imposed by learned Additional Sessions Judge, Deesa at Banaskantha in Criminal Appeal No. 28 of 2018 dated 15.09.2021 and order dated 30.03.2018 in Criminal Case No. 409 of 2015 passed by learned Magistrate Court, Dantiwada. 5. Per contra, learned APP for the respondent-State has objected the submissions made by learned advocate for the applicants arguing that sufficient evidence was available with the prosecution which was rightly considered by the learned Sessions Court, and therefore, it cannot be evaluated at this stage. It was further submitted that there is no case of the applicants to accept the prayer for suspensions of sentence as prayed for. Hence, it was requested by learned APP for the respondent-State to dismiss present application. 6. It was further submitted that there is no case of the applicants to accept the prayer for suspensions of sentence as prayed for. Hence, it was requested by learned APP for the respondent-State to dismiss present application. 6. Having heard learned advocate for the applicants as well as learned APP for the respondent-State, it appears that being aggrieved by the judgment and order dated 15.09.2021 passed by learned Additional Sessions Judge, Deesa at Banaskantha in Criminal Appeal No. 28 of 2018 and the order dated 30.03.2018 passed in Criminal Case No. 409 of 2015 by learned Magistrate Court, Dantiwada, applicants have preferred Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973. The applicants are convicted by the impugned judgment and order for the offence punishable under Sections 354 and 114 of the Indian Penal Code. During the pendency of the trial, as per the submissions, the applicants were released on bail. It also appears that on 23.11.2021, as per the judgment of the District and Sessions Court, Deesa at Banaskantha, the applicants are surrendered before the concerned authority. As per the submissions made by learned advocate for the applicants, there is no prima facie case to show that the applicants have committed an offence as alleged in the complaint and there is nothing on record that liberty granted to the applicants was misused by them or any complaint was filed thereafter. Revision Application preferred by the present applicants would take reasonable time for final disposal and till then, custody of the applicants would not be required. The applicants are convicted for two years simple imprisonment under Section 354 read with Section 114 of the IPC along with fine of Rs. 2,000/- only and in default to pay the amount of fine, further two months simple imprisonment was awarded. 7. 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. 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. 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." 8. Considering the punishment of two yeas awarded by the Sessions Court, the prayer made by the applicants requires to be accepted. 9. For the aforesaid reasons, present application stands allowed. The judgment and order dated 15.09.2021 passed by learned Additional Sessions Judge, Deesa at Banaskantha in Criminal Appeal No. 28 of 2018 as well as judgment and order dated 30.03.2018 passed by learned Magistrate Court, Dantiwada in Criminal Case No. 409 of 2015 shall be suspended pending hearing and final disposal of the captioned Revision Application and the applicants are ordered to be released on bail on furnishing personal bond of Rs. 10,000/- (Rupees Ten thousand only) by each of the applicants with solvent surety of the like amount by each of the applicants 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. Direct service is permitted. 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.