R/CR.MA/17113/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF
SENTENCE) NO. 17113 of 2017
In CRIMINAL APPEAL NO. 907 of 2017
MAYANK @ MONU SURVINDARSING HARMANSING
KANWAR….Applicant(s)
Versus
STATE OF GUJARAT 1….Respondent(s)
Appearance:
MR ANAND BRAHMBHATT, ADVOCATE for the Applicant(s) No. 1
MR RUTURAJ NANAVATI, ADVOCATE for the Applicant(s) No. 1
HL PATEL ADVOCATES, ADVOCATE for the Respondent(s) No. 2
MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 24/08/2017
ORAL ORDER
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 07.06.2017 passed by the learned Special Judge
(Atrocity), City Sessions Court No.17, Ahmedabad, in Special
(ATRO) Case No. 6 of 2015 whereby the learned Special Judge
has convicted the applicant for the offence punishable under
Section 376 of the Indian Penal Code and sentenced him to
undergo ten years rigorous imprisonment with fine of
Rs.25,000/-, in default, to further undergo six months simple
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imprisonment as well as for the offence punishable under
Section 313 of the Indian Penal Code and sentenced him to
undergo five years rigorous imprisonment with fine of
Rs.20,000/-, in default, to further undergo six months simple
imprisonment.
2. Heard learned advocate for the applicant and the learned
advocate for the respondent No.2 as well as learned Additional
Public Prosecutor for the respondent No.1-State.
3. Learned advocate for the applicant submits that the
present applicant is convicted and sentenced by the learned
Special Judge, City Sessions Court No.17, Ahmedabad for the
offences punishable under Sections 376 and 313 of the Indian
Penal Code for a period of 10 years and 5 years respectively.
Out of which by now, the applicant has undergone more than
three and half years of sentence. It is submitted that the
learned Special Judge has also ordered to deposit fine amount
of Rs.45,000/- and in addition to fine amount, the applicant is
also directed to pay Rs.40,000/- towards compensation to the
prosecutrix under Section 357(1) of the Code of Criminal
Procedure, 1973. It is also submitted that the appeal preferred
by the applicant is admitted by this Court, but looking to the
pendency of old criminal appeals before this Court, chances of
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R/CR.MA/17113/2017 ORDER
having early final hearing of the appeal, are very less.
4. Learned advocate for the applicant upon instructions
states that the applicant has yet not deposited the fine amount
of Rs.45,000/-, but the said amount will be deposited before
the concerned Trial Court. It is also submitted that over and
above the fine amount, the applicant will deposit Rs.40,000/-
before the concerned Trial Court towards the compensation to
the prosecutrix. In total the amount of Rs.85,000/- is ordered to
be paid to the prosecutrix by the applicant towards fine
amount as well as compensation before his actual release.
It is further stated that the applicant has no objection, if
the fine amount as well as the amount towards compensation
be paid to the prosecutrix, but the said concession may not be
treated as admission of guilt on the part of the applicant. It is
also submitted that the applicant will not claim refund of the
aforesaid amount including fine amount even in case they
succeed in appeal.
5. Learned advocate Mr. Vijay H. Patel appearing for the
complainant submits that the nature of offence and social and
financial condition of the victim girl may be taken into
consideration before passing any order of releasing the
applicant on bail by suspending the sentence during the
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pendency of appeal. Therefore, necessary directions may be
given to deposit fine amount as well as compensation as
ordered by the learned Court below and in addition to that
necessary directions be also given to the State Authority to
pay compensation to the victim under the Victim
Compensation Scheme notified by the State Government.
6. Learned Additional Public Prosecutor for the respondent-
State while opposing the present application submits that the
learned Court below has recorded the findings on the basis of
evidence on record and there is no infirmity in the findings
recorded by the learned court below. However, if the Hon’ble
Court comes to the conclusion that discretion is required to be
exercised in favour of the applicant, then in that case, after
depositing of the amount of fine as well as compensation as
ordered by the learned Court below, the applicant may be
enlarged on bail. It is also submitted that in the event of
issuance of direction to pay additional compensation under
Victim Compensation Scheme, necessary order may be
passed.
7. Regard being had to the above submissions and
considering the material placed on record, as also considering
the possibility of final hearing of Criminal Appeal on account of
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pendency of Criminal appeals before this Court, in the facts
and circumstances of the case, this Court is of the view that
discretions 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 Special Judge
(Atrocity), City Sessions Court No.17, Ahmedabad in Special
(ATRO) Case No. 6 of 2015, dated 07.06.2017 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 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 shall maintain law and order;
(e) shall furnish latest and permanent address of
residence and contact number 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;
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(f) the applicant shall released on bail only after
depositing of Rs.85,000/- (Fine amount of
Rs.45,000/- as well as Rs.40,000/- towards
compensation)
(h) After deposit of the said amount of Rs.85,000/-
(Fine amount of Rs.45,000/- as well as Rs.40,000/-
towards compensation), the concerned Trial
Court shall disbursed the said amount forthwith in
favour of the prosecutrix by an Account Payee
cheque after proper verification. However, it is
clarified that the applicant will not claim refund of
the said amount in the event of their acquittal in
future. If the above conditions as volunteered by the
applicant are not complied with or fulfilled, the bail
granted in favour of the applicant shall stand
automatically cancelled without any reference to
the court.
(I) In view of facts and circumstances, if the victim girl
being rape victim is eligible and entitled to get
compensation under the Victim Compensation
Scheme, the competent authority under
Government notification shall take further
appropriate steps for providing Rs.3,00,000/- victim
compensation to the victim girl under the Gujarat
Victim Compensation (Amendment) Scheme, 2017,
announced by the Government of Gujarat vide
Notification dated 30.06.2017. The Learned Principal
Judge, who is Ex-officio Chairman of Legal Services
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Authority shall also co-ordinate with appropriate
authority of the State Government for sanction and
release of the said amount of Rs.3 lakhs. After
sanction and release of the said amount, the same
shall be invested by way of Fixed Deposit in
Nationalised Bank initially, for a period of three
years in the name of victim. The quarterly interest
accrued on the said deposit be given to the victim.
No loan or withdrawal of the said Fixed Deposit be
permitted without prior permission of the concerned
Trial Court.
8. Rule is made absolute accordingly. Direct service is
permitted.
(P.P.BHATT, J.)
NEHA
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