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CR.MA/7455/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 7455 of 2010
In
CRIMINAL
APPEAL No. 1123 of 2010
=========================================================
PRAJAPATI
CHIRAG JAGDISHBHAI - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MS
SUBHADRA G PATEL for
Applicant(s) : 1,
MR LR PUJARI, APP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 21/07/2010
ORAL
ORDER
Rule.
Learned APP Mr.Pujari waives the service of rule on behalf of the
respondent-State.
2. The
present application has been filed by the applicant-orig.accused for
suspension of the sentence under Sec.389 of the Code of Criminal
Procedure. The applicant-orig.accused has been convicted in Sessions
Case No. 104 of 2009 by the learned Addl.Sessions Judge, Mehsana,
for the offences under Sections 363, 366, and 377 of IP Code, vide
judgment and order dated 17.6.2010.
3. Learned
advocate Ms.Subhadraben Patel appearing for the applicant
orig.accused submitted that the applicant was on bail during pendency
of the trial and also referred to the facts and with regard to the
evidence stating that the victim had accompanied the accused and
considering these facts, she has fair chances of success in the
appeal and therefore, the applicant may be released on bail.
4. Learned
APP Mr.Pujari resisted the application and submitted that the victim
was minor and therefore, considering the provisions of Sec.376 of IP
Code as well as Sec.389 of the Code of Criminal Procedure, when prima
facie the commission of offence is established and the applicant has
been convicted and therefore, the present application may not be
entertained.
5. In
view of the rival contentions, it is now required to be considered is
as to whether the present application may be entertained or not.
Though, normally, in such circumstances when the conviction is
recorded under Sec.376 of IP Code, the Court would be slow in
exercising the discretion under Sec.389 of the Code of Criminal
Procedure. However, having regard to the facts and the manner in
which the offence has been committed and also considering the
material evidence on record, the present application deserves to be
allowed. Therefore, the present application is allowed.
6. The
applicant-orig.accused is ordered to be released on bail on his
executing a personal bond of Rs.10,000/- (Rupees Ten thousand only)
with a surety of like amount to the satisfaction of the lower Court
and subject to the conditions that he shall:
(a) not
take undue advantage of his liberty or abuse his liberty.
(b) not
to try to tamper or pressurise the prosecution witnesses or
complainant in any manner.
(c) not
act in any manner injurious to the interest of the prosecution.
(d) maintain
law and order and should cooperate the investigation officers.
(e) mark
his presence before Udhna police Station on every 1st day
of Calendar month between 11.00 a.m. and 2.00 p.m.
(f) furnish
the address of his residence to the investigating Officer and also to
the Court at the time of execution of the bond and shall not change
his residence without prior permission of the Court.
(g) surrender
his passport, if any, to the lower Court, within a week.
7. If
breach of any of the above conditions is committed, the concerned
Sessions Judge will be free to issue warrant or take appropriate
action in the matter.
8. Bail
before the lower Court having jurisdiction to try the case. It would
be open to the trial Court concerned to give time to furnish the
solvency certificate if prayed for.
Rule
is made absolute. Direct service is permitted.
(Rajesh
H.Shukla, J.)
Sreeram.
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