Mayank @ Monu Survindarsing … vs State Of Gujarat & on 24 August, 2017

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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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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