Gujarat High Court Case Information System
Print
CR.MA/7609/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 7609 of 2008
In
CRIMINAL
APPEAL No. 1734 of 2008
=====================================================
CHAUDHARY
JAYANTIBHAI JIVABHAI - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=====================================================
Appearance :
MR
MEHUL SHARAD SHAH for Applicant(s) :
1,
MR MR MENGDEY, APP for Respondent(s) :
1,
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE J.R.VORA
and
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 15/07/2008
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE J.C.UPADHYAYA)
Rule.
Learned APP Mr.Mengdey waives service of Rule.
2. The
applicant who was original accused No.5 in Sessions Case No.38/2007,
by judgment and order dated 3.5.2008 rendered by ld.Addl.Sessions
Judge, Mahesana came to be convicted for the offences punishable
under Sec.489(A), 489(B), 489(C) and Sec.489(D) read with Sec.114 of
the Indian Penal Code and was sentenced to undergo rigorous
imprisonment for 10 years and fine of Rs.25000/-, in default of
payment of fine to undergo further rigorous imprisonment of four
months for the offence punishable under Sec.489(A) of the IPC. No
separate order for sentence for the offences punishable under
Sec.489(B), Sec.489(C) and Sec.489(D) r/w.Sec.114 of IPC was passed
by the learned Addl.Sessions Judge.
3. Feeling
aggrieved and dissatisfied with the judgment and order passed by the
ld.Addl.Sessions Judge in the aforesaid Sessions Case, applicant
preferred the Criminal Appeal, and in this appeal, this application
is filed for suspension of sentence and for regular bail during the
pendency of the aforesaid Criminal Appeal.
4. Heard
ld.advocate Mr.Ashish Dagli for the applicant and ld.APP Mr.Mengdey
for the opponent- State.
5. On
behalf of the applicant, it was submitted that the impugned judgment
and order passed by the ld.Addl.Sessions Judge is contrary to law and
evidence on record. That in all, there were 12 accused persons,
against whom the trial of Sessions Case No.38/2007 was proceeded, and
so far as this applicant – original accused is concerned, there was
no evidence worth the name, which would warrant his conviction for
the alleged offences. That neither any alleged fake currency notes
were recovered from this applicant nor they were recovered at the
instance of this applicant. Similarly no muddamal articles like
printer, mobile phone etc. were recovered from this applicant nor the
same were recovered at his instance. That even in the FIR, the name
of the applicant did not appear as co-accused. The applicant was
involved in this case by the investigating police machinery solely on
the basis of so-called confessional statements made by co-accused,
which is even otherwise not admissible in evidence, which can be used
against this applicant ? accused. That the complainant and the
Investigating Police Officer is the same person, which has seriously
prejudiced the case of the applicant in the trial. That therefore, it
is requested that the sentence imposed upon the applicant be
suspended and he be released on bail during the pendency of this
appeal, by imposing necessary condition as deemed fit and proper to
this Court.
6. On
behalf of the opponent ? State, the ld.APP resisted this
application, and submitted that considering the facts and
circumstances of the case and evidence on record and the reasonings
assigned by the ld.Addl.Sessions Judge in his judgment, the
application deserves to be dismissed.
7. We
have gone through the relevant papers as well as the judgment
delivered by the ld.Addl.Sessions Judge impugned in this appeal. Upon
careful perusal of the relevant papers and the impugned judgment,
together with the submissions made on behalf of both the parties
during the course of arguments in this application, we deem it
expedient to allow this application by imposing necessary conditions,
especially taking into consideration the nature and quality of
evidence adduced by the prosecution during the course of trial of the
aforesaid Sessions Case before the ld.Addl.Sessions Judge as against
this applicant. However, we make it clear that this application is
allowed, taking into consideration the peculiar facts and
circumstances and the evidence adduced by the prosecution so far as
this applicant ? accused is concerned, and which shall not be used
as a ground of parity by any other non-applicant co-accused.
8. In
the result, the applicant ? original accused is ordered to be
released on regular bail during the pendency of the Criminal Appeal
on his executing personal bond of Rs.5,000/- (Rupees Five Thousand
only) with one surety of the like amount on the condition that the
applicant-accused pays the amount of fine imposed by the
ld.Addl.Sessions Judge in the impugned judgment, if not already paid
and that he shall not misuse the liberty during the pendency of this
appeal and shall not leave the local limits of State of Gujarat
without express permission to that effect by this Court. Upon
furnishing the bail, in accordance with the conditions laid down
hereinabove, the sentence of imprisonment imposed by the
ld.Addl.Sessions Judge in the impugned judgment shall remain
suspended during the pendency of the appeal. The bail to be furnished
before the trial Court. Rule is made absolute accordingly.
(J.R.
VORA, J.)
(J.C.
UPADHYAYA, J.)
(binoy)
Top