NEUTRAL CITATION
R/CR.RA/549/2023 ORDER DATED: 21/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 549 of 2023
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GULJAR @ PUJA @ SAMIRA MEHDI MAMAD ABHAVANI
Versus
STATE OF GUJARAT
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Appearance:
MR MAKBUL I MANSURI(2694) for the Applicant(s) No. 1,2
MR LB DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 21/08/2023
ORAL ORDER
1. Rule. Mr.L.B. Dabhi, learned APP waives service of notice of Rule for the respondent-State.
2. The present application is filed to assail the judgment and order dated 12.04.2023 passed by the learned Principal Sessions Judge, Jamnagar, in Criminal Appeal No.94 of 2023 below Exhibit 5 wherein the learned Judge has dismissed the application for suspension of sentence passed by the learned 5th Additional Chief Judicial Magistrate, Jamnagar in Criminal Case No.13653 of 2021 for the offence under Sections 3(1), 4(1), 5(1), 5(1)(B) and 6(1) of the Immoral Traffic (Prevention) (for short, "the Act".) Act, 1956.
3. Heard learned advocates for the respective parties. Page 1 of 7 Downloaded on : Sun Sep 17 01:54:35 IST 2023
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4. Learned advocate for the applicants submits that the present applicants were convicted by the learned 5th Additional Chief Judicial Magistrate, Jamnagar in Criminal Case No.13653 of 2021 on 10.03.2023 for the offence punishable under Sections 3(1), 4(1), 5(1), 5(1)(B) and 6(1) of the Act thereby under Section 3(1), they are sentenced to undergo one year rigorous imprisonment with fine of Rs.1,000/- and in default to undergo further one month simple imprisonment and under Section 4(1) they are sentenced to undergo one year rigorous imprisonment with fine of Rs.1,000/- and in default to undergo further one month simple imprisonment under Section 5(1) and 5(1)(B), they are sentenced to undergo three years rigorous imprisonment with fine of Rs.1,000/- in default to undergo further one month simple imprisonment and under Section 6(1) of the Act, they are sentenced to undergo seven years rigorous imprisonment with fine of Rs.2000/- in default, to undergo further two months simple imprisonment. All the sentences are directed to run concurrently. Page 2 of 7 Downloaded on : Sun Sep 17 01:54:35 IST 2023
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5. Being aggrieved and dissatisfied, the applicants have filed an application for suspension of sentence passed in judgment and order dated 10.03.2023, by the learned 5 th Additional Chief Judicial Magistrate, Jamnagar in Criminal Case No.13653 of 2021 before the learned Principal Sessions Judge, Jamnagar by filing Criminal Appeal No.94 of 2023 below Exhibit 5 and the learned Principal Judge has been pleased to dismissed the appeal for suspension of sentence filed by the applicants vide judgment and order dated 12.04.2023.
6. Being aggrieved and dissatisfied by the judgment and order dated 12.04.2023 passed by the learned Principal Judge, Jamnagar, the present Revision Application has been filed before this Court.
7. Per contra, Learned APP has vehemently opposed the application and submitted that the trial Court has properly appreciated the evidence produced on record. Therefore, he prays that the present application be dismissed. Page 3 of 7 Downloaded on : Sun Sep 17 01:54:35 IST 2023
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8. Learned advocate for the applicant after arguing some time and keeping in view the offence levelled against the applicant No.1, does not press the present application qua the respondent No.1 The application stands disposed of qua the present applicant No.1 - Guljar @Puja @Samira Mehdi Mamad Abhavani. However, if the appeal is not decided by the Court below within one year, it is open for the applicant No.1 to file a fresh application after a period of one year.
9. So far applicant No.2 - Nabira @Nargish D/o Maqboolbhai Sudhaguniya is concerned, having heard the learned advocates for the respective parties and having considered the documents produced on record, it appears that during the trial, the applicant No.2 has remained in bail whereas applicant No.1 is in jail since the date of his arrest i.e. approximately one and half years.
10. It appears from the evidence on record that the allegation made against the respondent No.2 is that the rented premises of the applicant No.2 have been used for Page 4 of 7 Downloaded on : Sun Sep 17 01:54:35 IST 2023 NEUTRAL CITATION R/CR.RA/549/2023 ORDER DATED: 21/08/2023 undefined unethical activity, except that no other allegation has been leveled against the applicant No.2.
11. The legal parameters for suspension of sentence have also been laid down by the Apex Court in the case of Angana & anr. Vs. State of Rajasthan, reported in (2009) 3 SCC 767, wherein, the Hon'ble Apex Court has held in para 14 that:
"14. When an appeal is preferred against conviction in the High Court, the Court has ample power and discretion to suspend the sentence, but that discretion has to be exercised judiciously depending on the facts and circumstances of each case. While considering the suspension of sentence, each case is to be considered on the basis of nature of the offence, manner in which occurrence had taken place, whether in any manner bail granted earlier had been misused. In fact, there is no strait jacket formula which can be applied in exercising the discretion. The facts and circumstances of each case will govern the exercise of judicial discretion while considering the application filed by the convict under Section 389 of Criminal Procedure Code."
12. In view of the above, the applicant No.2 has made out Page 5 of 7 Downloaded on : Sun Sep 17 01:54:35 IST 2023 NEUTRAL CITATION R/CR.RA/549/2023 ORDER DATED: 21/08/2023 undefined arguable case and hence, this Court is of the view that the case of the applicant No.2 deserves consideration. This Court has also considered that there is no possibility of early hearing of the appeal in the Court below.
13. In view of the above, the present application is partly allowed. The substantive sentence imposed 5th Additional Chief Judicial Magistrate, Jamnagar in Criminal Case No.13653 of 2021 is hereby ordered to be suspended pending hearing and final disposal of the Criminal Appeal pending before the Court below qua the. The applicant No.2- Nabira @Nargish D/o Maqboolbhai Sudhaguniya shall be released on bail by executing a fresh bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of the like amount to the satisfaction of the trial Court, on the conditions that:-
(a) shall not take undue advantage of liberty or misuse liberty;
(b) shall not leave India without prior permission of this Court.
(c) shall furnish the present address of his Page 6 of 7 Downloaded on : Sun Sep 17 01:54:35 IST 2023 NEUTRAL CITATION R/CR.RA/549/2023 ORDER DATED: 21/08/2023 undefined residence to the Court concerned at the time of execution of the bond and shall not change the residence without the prior permission of this Court.
d) shall proceed with the Criminal Appeal as and when it may be listed.
14. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(HASMUKH D. SUTHAR,J) ALI Page 7 of 7 Downloaded on : Sun Sep 17 01:54:35 IST 2023