Bombay High Court
Saurabh Sanjay Borate And Ors vs The State Of Maharashtra And Anr on 26 April, 2021
Bench: R.P. Mohite-Dere
16. IA 1242-2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 1242 OF 2021
IN
CRIMINAL APPEAL NO. 361 OF 2021
1. Saurabh Sanjay Borate
2. Vishal Sanjay Borate
3. Rushikesh Sanjay Hazare ...Applicants
Versus
State of Maharashtra and Anr. ...Respondents
Mr. Tanaji Mhatugade for the Applicants.
Mr. S.V.Gavand, A.P.P for the Respondent No.1-State.
Ms. Saili Dhuru appointed as an Amicus Curiae for the Respondent No.2.
CORAM : REVATI MOHITE DERE, J.
DATE : 26th APRIL, 2021
(Through Video Conferencing)
P.C. :
1. Pursuant to the order dated 23/04/2021, learned Counsel for
the applicant has served the respondent No.2 and has filed an affidavit of
service to that effect.
2. Learned A.P.P was also directed to inform the respondent No.2
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of today's date. Accordingly, learned APP submits that the Officer of the
concerned Police Station has informed the respondent No. 2 of today's
date. Accordingly, learned APP has tendered a report dated 24/04/2021.
The same is taken on record. It appears that the respondent No. 2 has
requested that an advocate from the Legal Aid Panel be appointed to
espouse her cause.
3. Accordingly, Advocate Ms. Saili Dhuru is appointed to
espouse the cause of the respondent No. 2.
4. Learned Counsel for the applicant to serve a soft copy of the
aforesaid application and appeal memo on the learned appointed Advocate,
during the course of the day.
5. At her request, Kept back.
6. The aforesaid application was taken up for hearing at 1.45 p.m.
7. Heard learned Counsel for the parties.
8. By this application, the applicants seek suspension of their
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sentence and enlargement on bail, pending the hearing and final disposal of
their appeal.
9. The applicants, vide judgment and order dated 31/03/2021
passed by the learned Special Judge (POCSO), Kolhapur, in POCSO
Special Case No.25 of 2019, have been convicted and sentenced as under:-
- for the offence punishable under Section 354 of the Indian
Penal Code, to suffer rigorous imprisonment for one year and to pay
fine of Rs.5,000/- each, in default to undergo further rigorous
imprisonment for 2 months;
- for the offence punishable under Section 354-D of the Indian
Penal Code and Section 12 and 8 of the Prevention of the Children
from the Sexual Offence Act, 2012, to suffer rigorous imprisonment
for 3 years and to pay fine of Rs.5,000/- each, in default, to undergo
further rigorous imprisonment for 2 months;
All the substantive sentences were directed to run concurrently.
4. Learned Counsel for the applicant submits that the applicants
were on bail, pending trial and that they have not abused or misused their
liberty. He submits that there are several discrepancies in the evidence of
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the prosecution witnesses and that no offences, as alleged, have been
proved by the prosecution as against the applicants. He further submits that
a false complaint was registered as against the applicants for an alleged
incident which took place one month prior to the lodging of the FIR. He
submits that the prosecution has also failed to examine two friends of the
victim girl and one Ms. Poonam Hajare who allegedly disclosed the name
of the appellants to the victim girl. The appeal has been admitted by a
separate order passed on 23/04/2021. The sentence is a short term
sentence and the appeal is not likely to be heard in the immediate near
future. Even otherwise, arguable questions have been raised by the learned
Counsel for the applicants.
5. Considering the aforesaid, the application is allowed and the
applicants' sentence is suspended and they are enlarged on bail, pending the
hearing and final disposal of their appeal, on the following terms and
conditions :-
ORDER
i) The applicants be released on cash bail in the sum of
Rs.5,000/-, for a period of eight weeks;
ii) The applicants shall within the said period of eight weeks,
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furnish P.R. Bond in the sum of Rs.5,000/- each, with one or two sureties
in the like amount;
iii) The applicants shall report to the trial Court, once in four
months on the day/date specified by the trial Court, till their appeal is
finally disposed of;
iv) The applicants shall not contact the witnesses/victim
girl/complainant or any other witnesses concerned with the said case.
v) The applicants shall keep the trial Court informed of their
current addresses and mobile contact numbers and/or change of residence
or mobile details, if any, from time to time;
vi) If there are two consecutive defaults in appearing before the
trial Court, the learned Judge shall make a report to the High Court and the
prosecution would be at liberty to file an application seeking cancellation
of bail.
6. The High Court Legal Services Committee to pay the fees as
per Rules, to Ms.Saili Dhuru, learned appointed Advocate, who has
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espoused the cause of the respondent No.2.
7. Copy of this order be forwarded to the High Court legal
Services Committee, for information and necessary action.
8. The application is accordingly disposed of.
9. All concerned to act on the authenticated copy of this order.
REVATI MOHITE DERE, J.
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