Abdul Rehman @ Rauf Kasam Shaikh vs The State Of Maharashtra And Anr
2021 Latest Caselaw 4939 Bom

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                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CRIMINAL APPELLATE JURISDICTION
         Digitally
         signed by
                                 CRIMINAL APPEAL NO. 209 OF 2020
Manali
                                             WITH
         Manali P.
         Tilak
P.       Date:
Tilak
                               INTERIM APPLICATION NO.666 OF 2021
         2021.03.20
         14:58:26
         +0530




                      Abdul Rehman @ Rauf Kasam
                      Shaikh                                    .. Applicant
                           Versus
                      The State of Maharashtra & Anr            .. Respondents

                                                       ...

                      Ms.Sayed Shabana for the appellant/applicant.
                      Mr. Y.Y. Dabake, APP for the State,


                                  CORAM: BHARATI DANGRE, J.

DATED : 18th MARCH 2021

P.C:-

1 Learned counsel for the applicant has tendered affidavit of service, sworn on 18th March 2021 along with its annexures. The same is taken on record.

2 By the present application being filed, the applicant seek suspension of sentence imposed on the applicant by the Special Judge under the POCSO Act on 21st January 2020. On being found guilty of the offence under the POCSO Act and in specific Section 5(1)(m) read with Section 6 of the POCSO Act,

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the applicant is sentenced to suffer RI for 10 years and to pay a fine of Rs.10,000/- in default of fine to suffer RI for one year. He is also sentenced on his conviction under Section 506 IPC and directed to suffer RI for two years and to pay fine of Rs.5,000/- in default to suffer RI for six months. The two sentences are directed to run concurrently. Since the accused was in jail, set off is also directed to be given in terms of Section 428 of the Code of Criminal Procedure.

3 I have heard the learned counsel for the applicant and the learned APP opposing the application. With the assistance of the learned respective counsel, I have perused the charge-sheet and also the impugned judgment. On expressing that I am not satisfied with the contention of the learned counsel for the applicant permitting her to avail the relief sought being suspension of the sentence imposed by the Sessions Judge, in Special Case No. 184 of 2016, the learned counsel seek permission to withdraw the said application. Application is thus permitted to be withdrawn.

4 It is however, noted that the offence in which the applicant was charge-sheeted and subsequently convicted arises out of a case registered with D.N. Nagar Police Station in the year 2016 and on the date of incident itself, he came to be arrested. The appellant is in custody initially as an under-trial and

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subsequent to his conviction as a convict. Five years have elapsed since the date of his arrest, to be precise on 15th February 2016.

5 In such circumstances, interest of justice would be served if the Appeal itself is taken for final hearing but there are two impediments, the first being the paper book is being not ready, however a writ was issued for calling of the Record and Proceedings and the R & P is awaited. On the R & P being received, preparation of the paper book can be dispensed with. The second obstacle in the wake of the matter being heard finally is the service being effected on the respondent no.2, who at the relevant time, was residing in Mumbai but at present, she is residing in Chennai. Counsel for the applicant has taken efforts to serve the respondent no.2 at the address in Tirupura District, Tamil Nadu. The address appear to be a correct since the learned counsel has placed on record an affidavit of service of notice and accompanying it is the Track Consignment Report from the India Post and it reflect that the delivery was confirmed on 10th March 2021 on the given address, the destination Pin Code being, 400009 and the delivery location being Avanashi, S.O. The same is placed on record along with the endorsement of the Postal Department on the given counter in the High Court Building, Mumbai.

Tilak
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6           Address of the respondent no.2 is given on the postal

packet. The same is to be found as a part of the affidavit in service filed by the counsel for the applicant.

7 The counsel for the applicant is directed to supply a fresh copy of the Appeal Memo so that a notice can be issued to the respondent no.2 on the address reflected in the affidavit of service.

8 Registry is directed to issue fresh notice to the respondent no.2 on the address mentioned therein being "Viralaxmi Rajesh. No.9, 1st floor, Gandhi Street, Avinashi, Tirupur District, Tamil Nadu.

9 Registry also to indicate in the notice to be issued to the respondent no.2 about the Appeal being heard finally in the first week of June 2021.

10 With the aforesaid two compliances being ensured, the Appeal is directed to be listed for final hearing in the week commencing from 7th June 2021.

SMT. BHARATI DANGRE, J

Tilak