Gujarat High Court
Poonam Khodabhai Vaghari vs State Of on 13 February, 2013
Author: N.V.Anjaria
Bench: N.V.Anjaria
POONAM KHODABHAI VAGHARI....Applicant(s)V/SSTATE OF GUJARAT....Respondent(s) R/CR.RA/88/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 88 of 2013 ================================================================ POONAM KHODABHAI VAGHARI....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ================================================================ Appearance: MR PP MAJMUDAR, ADVOCATE for the Applicant(s) No. 1 MR LR PUJARI APP for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 13/02/2013 ORAL ORDER
By filing the present Revision Application under section 397 and 401 of the Code of Criminal Procedure, 1973, the applicant has challenged the order dated 29.09.2012 passed by the learned Additional Sessions Judge, Anand, below Exh.3A. The said application was filed under section 389 of the Code of Criminal Procedure, 1973, (hereinafter referred to as `the Code ) praying for bail, pending the Criminal Appeal No. 13 of 2012 before the learned Sessions Judge. By the impugned order, learned Additional Sessions Judge dismissed the said application.
2. The facts in brief necessary to be considered may be summarised as follows.
2.1 First Information Report being C.R. No. I-75 of 2010 came to be registered by the present applicant-accused No.1 with Sojitra Police Station for the alleged offence punishable under section 465, 467, 471, 120B and section 114 of the Indian Penal Code, 1860. According to the complaint and prosecution case, the complainant was in administration of land Block No. 636 at village Balinda, District Anand, since more than fifty years on behalf of the original owner. The applicant-accused No.1 informed the complainant that the original owner had executed a will, and on the basis of will, he threatened the complainant. It was alleged that the applicant-accused No.1 by concocting the will, which was bogus, and on the basis of fabrication of false documents and by hatching a conspiracy with the other co-accused, the land was sought to be illegally grabbed.
Criminal Case No.739 of 2011 was registered, the accused persons including the applicant herein came to be tried, and upon trial, the applicant came to be convicted for the offence under section 465, 467 and 471 of the Indian Penal Code, and sentenced to two years , three years and two years imprisonment for the respective convictions, and to pay fine of Rs.3,000/- for each of the convictions by judgment and order dated 31.07.2012 of the learned Judicial Magistrate (First Class), Petlad. Thereafter, the applicant preferred Criminal Appeal No. 13 of 2012 before the court of Additional Sessions Judge, Anand.
Heard learned advocate Mr. P.P. Majmudar for the applicant and learned A.P.P. Mr. L.R. Pujari for the respondent-State.
2.4 It was submitted by the learned advocate for the applicant that the applicant was convicted by the court of first instance, and thereafter, he has preferred appeal. When he has preferred appeal and it is admitted, his prayer for suspension of sentence and consequential bail has to be examined in light of parameters of section 389 of the Code. It was submitted that maximum sentence imposed is three years, and therefore, it being a short sentence, the lower appellate court should have exercised power under section 389 liberally. He submitted that during the whole trial, the applicant was in jail. It was further submitted that if during the pendency of the appeal before the lower court, the appellant was not enlarged on bail, and if he ultimately succeeds in appeal, the situation would be irreversible.
Learned Additional Public Prosecutor Mr. L.R. Pujari for the respondent-State submitted that it is ultimately the discretion of the court and such discretion was exercised by the learned Sessions Judge. The decisions in case of Sureshkumar v. State [(2001) 10 SCC 931] and in Kirankumar v. State of Madhya Pradesh [(2001) 9 SCC 211] are pressed into service in support of his submissions. In addition to the above two decisions, decision of this court in Sanjaybhai Naranbhai Patel v. State of Gujarat in Criminal Revision Application No. 522 of 2010 were relied on.
Having considered the facts of the case and having heard learned advocates appearing on behalf of the respective parties, on perusal of the impugned order it clearly appears that the learned Sessions Judge ought to have released the applicant on bail during the pendency of the appeal. It is trite and well settled that when the sentence is fixed term sentence, the prayer for enlargement pending the appeal should be liberally ordered during the pendency of the appeal in which he has challenged his conviction, unless any exceptional circumstance is shown. Learned Judge has erred in reasoning that the provisions of section 389 of the Code do not apply.
4. It is not in dispute that the appeal of the applicant is pending before the Sessions Court. It was in the pending appeal that he filed application for his release on bail pending the appeal. It is further not in dispute that the applicant was in jail during the entire period of trial and remained in jail for more than two years. The maximum sentence imposed is three years. This implies that out of total sentence awarded by the learned Judicial Magistrate (First Class), he has already undergone substantial period in jail. In the facts of the case, therefore, the learned Additional Sessions Judge ought to have bestowed the liberty of the accused rather than rejecting his application. In the above view, the Revision Application is allowed. The impugned order dated 29.09.2012 below exh.3A in Criminal Appeal No. 13 of 2012 passed by learned Addl. Sessions Judge, Anand is hereby set aside. Without suspending the conviction and sentence, the applicant shall be released on bail during the pendency and final disposal of the Criminal Appeal No. 13 of 2012, which is pending before the lower appellate court, on condition that the applicant shall execute a personal bond of Rs.10,000/- with one surety of like amount before the trial court. It is further directed that the applicant shall make himself available during the proceedings of the trial. Rule is made absolute. Direct service is permitted.
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