R/CR.MA/2927/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
2927 of 2018
In CRIMINAL APPEAL NO. 441 of 2017
ANOPSINH DILIPSINH VAGHELA….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)
Appearance :
MR NABIL O BLOCH, ADVOCATE for the Applicant(s) No. 1
MR HS SONI, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1
CORAM HONOURABLE MS JUSTICE SONIA GOKANI
:
Date : 06/02/2018
ORAL ORDER
1. By way of present application preferred under
section 389 of the Code of Criminal Procedure,
1973, the applicant has prayed for regular bail
by suspending the sentence pending main appeal
being Criminal Appeal No.441 of 2017, in
connection with the judgment and order of
conviction and sentence dated December 31, 2016,
passed by the learned Special and Sessions Judge,
Jamnagar, in Sessions Case No.68 of 2014, whereby
the learned Judge convicted the applicant for the
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offence punishable under sections 363, 366 and
376(1) of the Indian Penal Code and also section
4 of the Prevention of Children from Sexual
Offences Act; and sentenced him to undergo
rigorous imprisonment for seven years and imposed
a fine of Rs.10,000/ and in default of payment
of fine, to undergo simple imprisonment for one
month.
2. This Court has heard Shri Nabil Baloch, learned
counsel appearing for the applicant, who has
urged that on couple of occasions, the applicant
was enlarged on temporary bail and no untoward
incident has taken place at such time. Further,
the conduct of the applicant inside the jail is
also good. It is urged that it is a case of love
affair, however, since the family of the
prosecutrix did not approve the same, the
criminal case came to be lodged against the
applicant. He has further urged that continuing
the applicant in jail would ruin his life as the
appeal is likely to take a long time. He has also
pointed out that the prosecutrix was nearing 18
years of age and it is unfortunate for the
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applicant that after the new amendment in the
provision of section 376 of the Indian Penal Code
qua giving of consent, whereby the age of the
prosecutrix has been enhanced to 18 years since
February 03, 2013 and thereby, has affected his
case adversely. He, thus, has prayed for
suspending the sentence.
3. Shri H.S. Soni, learned Additional Public
Prosecutor, has vehemently urged that the trial
Court has rightly appreciated the evidence on
record and arrived at the conclusion, however, he
has on the strength of the jail report has
confirmed that the period of imprisonment already
undergone is three years and his behaviour as a
prisoner is not questionable.
4. This Court has heard the learned advocates
appearing on behalf of the respective parties and
perused the judgment and order of conviction and
sentence and the role attributed to the
applicant. Considering the fact that this Court
has admitted the appeal preferred by the
applicant against the judgment and order of
conviction and sentence, coupled with the other
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facts and circumstances of the case, more
particularly the absence of any criminal
antecedents against the applicant and his having
spent considerable period nearing to 50% of the
total sentence, with his appeal not likely to be
taken up for final hearing in near future as well
as bearing in mind the decision of the Apex Court
in the case of Bhagwan Rama Shinde Gosai and
others v. State of Gujarat, reported in (1999) 4
SCC 421, this Court is inclined to suspend the
sentence as this is a fit case to exercise the
discretion and enlarge the applicant on regular
bail.
5. For the foregoing reasons, the present
application is allowed and by suspending the
sentence pending appeal, the applicant is ordered
to be released on regular bail in connection with
the judgment and order of conviction and sentence
dated December 31, 2016, passed by the learned
Special and Sessions Judge, Jamnagar, in Sessions
Case No.68 of 2014, on his executing a solvent
surety of Rs.25,000/ (Rupees Twenty Five
Thousand only) with one surety of the like amount
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to the satisfaction of the trial Court and
subject to the conditions that he shall :
[a] not take undue advantage of liberty or misuse
liberty;
[b] not hamper the prosecution witnesses and
shall not act in a manner injurious to the
interest of the prosecution;
[c] surrender passport, if any, to the trial
court within a week from the date of his release;
[d] not leave the State of Gujarat without prior
permission of this Court;
[e] not enter the revenue limits of Shankar
Tekri Area of Jamnagar City, where the
prosecutrix resides;
[f] not attempt to contact the prosecutrix in
any mode or manner;
[g] mark presence before the concerned Police
Station between 11:00 a.m. and 02:00 p.m., once
in two months till pendency of the appeal;
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[h] furnish the present address of his residence
to (i) the Investigating Officer and also (ii)
the trial Court, at the time of execution of the
bond and shall not change the residence without
prior permission of this Court.
6. The authorities will release the applicant only
if he is not required in connection with any
other offence for the time being.
7. If breach of any of the above conditions is
committed, the trial Court concerned will be at
liberty to issue warrant or take appropriate
action in the matter and even the Investigating
Officer will be at liberty to approach this Court
in such case.
Bail bond be executed before the trial
Court concerned.
Rule is made absolute to the extent
aforesaid. Direct service is permitted, TODAY.
(MS SONIA GOKANI, J.)
Aakar
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