Allahabad High Court
Pankaj Gupta vs State Of U.P And 3 Others on 22 May, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:111962
Court No. - 49
Case :- CRIMINAL APPEAL No. - 3853 of 2023
Appellant :- Pankaj Gupta
Respondent :- State Of U.P And 3 Others
Counsel for Appellant :- Vijaya Nand Maurya,Ashutosh Kumar Tripathi
Counsel for Respondent :- G.A.,Saumya Srivastava
Hon'ble Rajeev Misra,J.
Ref: Order on the Appeal
Heard Mr. A.K. Tripathi, the learned counsel for appellant and the learned A.G.A. representing opposite party-1.
Admit.
Summon the lower Court record.
Ref: Order on Application for Suspension of Sentence
Heard Mr. A.K. Tripathi, the learned counsel for applicant/appellant and the learned A.G.A. representing opposite party-1.
Feeling aggrieved by the judgement and order dated 23.2.2023, passed by Additional Sessions Judge (POCSO Act with rape) Court No.9, District Jhansi, in Special Sessions Trial No. 66 of 2015 (State Vs. Pankaj Gupta), under section 10 of POCSO Act, Police Station- Kotwali, District Jhansi, applicant/appellant has preferred aforementioned appeal.
By means of aforesaid judgement and order, applicant/appellant has been convicted under section 10 POCSO Act , and consequently, sentenced to five years rigorous imprisonment along with fine of Rs. 5,000/- and in case of default, applicant/appellant is to undergo one month additional rigorous imprisonment.
Record shows that applicant/appellant was on bail during pendency of trial. He however surrendered before Court below on 23.2.2023 and thereafter was taken into custody to serve out the sentence awrded by means of the impugned judgement and order. Accordingly, applicant/appellant has filed aforementioned application seeking suspension of sentence/bair during the pendency of present appeal.
Learned counsel for applicant/appellant contends that applicant/appellant has been convicted under section 10 POCSO Act only. Maximum sentence awarded to applicant/appellant is five years. Applicant/appellant was on bail during the pendency of trial. There is no likelihood of the appeal being heard in near future on account of heavy pendency of appeal before this Court. Attention of the Court was then invited to the recital contained in paragraph 12 of the impugned judgment at page 7 of the paper book and on basis thereof he submits that applicant has neither committed any penetrative sexual assault nor Aggravated sexual assault upon the prosecutrix. As per recital contained in paragraph 12 of the impugned judgment, it is contended that modesty of the prosecutrix was dislodged by committing assault upon her. Even otherwise, applicant has clean antecedents to his credit except the present one. In case applicant/appellant is enlarged on bail, he shall not misuse the liberty of bail. On the above premise, he therefore contends that applicant/appellant is liable to be enlarged on bail.
Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that applicant/appellant has been convicted and sentenced to five years rigorous imprisonment along with fine of Rs. 5,000/-. Offence complained of is not private in nature but a crime against society. Criminality committed by applicant falls under the category "moral terpitute". The prosecutrix is a young girl aged about 3 years and 10 months and 24 days. It is further contended by learned A.G.A. that interest of justice shall better be served in case the appeal itself is decided on merits instead of deciding the bail matter. However, the learned A.G.A. could not dislodge the factual and legal submission urged by the learned counsel for applicant with reference to the record at this stage.
Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, as well as complicity of applicant, accusation made coupled with the fact that maximum sentence awarded to applicant/appellant is five years, rigorous imprisonment, there being no chances of the appeal being heard in near future on account of heavy pendency of appeals before this Court, applicant/appellant was on bail during pendency of applicant, clean antecedents of applicant/appellant, recital contained in paragraph 12 and 13 of the impugned judgment, which prima facie show that no penetrative sexual assault or aggravated sexual assault was committed upon the prosecutrix of applicant, but without making any comments on the merits of the appeal, applicant/appellant has made out a case for bail.
Let the appellant-appellant- Pankaj Gupta, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.
It is, however, provided that the amount of fine awarded by court below shall be deposited by applicant-appellant with the court below within a period of 1 month from today failing which, the bail granted to applicant-appellant shall stand canceled and he shall be taken into custody at once to serve out the sentence.
Order Date :- 22.5.2023
Arshad
