Jivrajbhai @ Hakko Nathabhai ... vs The State Of Gujarat
2021 Latest Caselaw 9772 Guj

     R/CR.A/875/2021                            IA ORDER DATED: 28/07/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
                           1 of 2021
             In R/CRIMINAL APPEAL NO. 875 of 2021
==========================================================

JIVRAJBHAI @ HAKKO NATHABHAI SARADIYA Versus THE STATE OF GUJARAT ========================================================== Appearance:

ASHWINI K MEHTA for the PETITIONER(s) No. MR HARDIK SONI, APP for the RESPONDENT(s) No. ==========================================================

CORAM:HONOURABLE MR. JUSTICE PARESH UPADHYAY

Date : 28/07/2021

IA ORDER

1. This is an application for suspension of sentence pending appeal.

2. The applicant is convicted by the Special Judge (POCSO) and Additional Sessions Judge, Morbi vide judgment dated 05.03.2021 in POCSO Case No. 42 of 2017 read with POCSO Case No. 14 of 2018. The conviction is principally under Section 4 of the POCSO Act, 2012 read with Section 376 (2),(h),

(i) & (n) of the POCSO Act, 2012, Sections 363 & 366 of the Indian Penal Code read with Section 114 of the Indian Penal Code and Section 506(2) of the Indian Penal Code. Different sentences are awarded for different sections, however, the maximum sentence awarded is rigorous imprisonment for 10 years. Fine is also imposed and in default thereof, simple imprisonment is imposed.

3. The appeal is admitted by this Court.

R/CR.A/875/2021 IA ORDER DATED: 28/07/2021

4. Rule was issued earlier.

5. Heard learned advocate for the appellant / applicant and learned Additional Public Prosecutor for the State.

6. It is indicated that the applicant at present is in jail and is serving the sentence. It is further indicated that as against the sentence of 10 years, by this time, the applicant has already served the sentence of about 4 years.

7. Having heard learned advocates for the respective parties and having considered the material on record, including the period of sentence awarded vis-a-vis the period already spent in jail by this time, this Court finds that, ends of justice would meet if the sentence is suspended during pendency of the appeal. Further, because of pendency of old appeals, the chances of this appeal being heard in near future being less, is also a factor which has weighed with this Court. On this count, the orders passed by this Court on :-

(i) Criminal Appeal No.1462 of 2008 dated 15.07.2021;

(ii) Criminal Appeal No.445 of 2014 dated 26.07.2021;

(iii) Criminal Appeal No.164 & 166 of 2017 dated 15.07.2021 and

(iv) Criminal Appeal No.889 of 2017 dated 15.07.2021 are also kept in view.

8. In view of above, the following order is passed.

8.1     This application is allowed.

8.2     It is ordered that the sentence imposed on the applicant

by the Special Judge (POCSO) and Additional Sessions Judge,

R/CR.A/875/2021 IA ORDER DATED: 28/07/2021

Morbi vide judgment dated 05.03.2021 in POCSO Case No. 42 of 2017 read with POCSO Case No. 14 of 2018, shall remain suspended during pendency of the appeal.

8.3 The applicant is ordered to be released on bail on furnishing personal bond of Rs. 5,000/- (Rupees Five Thousand Only).

8.4 Rule is made absolute in above terms.

9. Registry shall communicate this order to the concerned Authority / Court.

Direct service is permitted.

(PARESH UPADHYAY, J) SALIM/95