Gujarat High Court
Maheshbhai Chakudiyabhai Rathva vs State Of Gujarat on 22 November, 2021
Bench: Umesh A. Trivedi
R/CR.A/1233/2021 IA ORDER DATED: 22/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
1 of 2021
In R/CRIMINAL APPEAL NO. 1233 of 2021
==========================================================
MAHESHBHAI CHAKUDIYABHAI RATHVA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR VINOD M GAMARA for the PETITIONER(s) No.
NILESH J GOSAI for the PETITIONER(s) No.
MS CM SHAH ADDL.PUBLIC PROSECUTOR for the RESPONDENT(s) No.
==========================================================
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 22/11/2021
IA ORDER
Heard Mr.Vinod Gamara, learned advocate for the
applicant. He has submitted that pursuant to a case filed and he
came to be convicted for an offence under Sections 363, 366 and
376 of the Indian Penal Code (for short 'IPC'), he is ordered to
undergo imprisonment for a period of 7 years for offence under
Section 376 of 'IPC' and 5 years for an offence under Sections
363 and 366. At the same time, he is also to undergo rigorous
imprisonment for 10 years for an offence under Section 4 of the
Protection of Children from Sexual Offences ( for short 'POCSO')
Act, 2012 with fine and default stipulation. He has submitted that
during the trial, the applicant came to be released on bail by an
order dated 23.1.2019 passed in Criminal Misc. Application
No.917 of 2019. However, within few days of his release, as he
started changing his advocate for defending him, the Court had
rejected his application and taken him into custody vide an order
dated 1.2.2019. As recorded in that order, on his request,
advocate through Legal Services Authority was provided to him
for bail when he preferred an application through private
R/CR.A/1233/2021 IA ORDER DATED: 22/11/2021
advocate, his advocate appointed through Legal Services
Authority withdrew his appearance. However, at the time of
recording the evidence, for the purpose of cross examination of
the prosecution witnesses, advocate for applicant did not remain
present and therefore, his right to cross examine came to be
closed. It is further recorded in the order when he prayed for an
order to provide him an advocate, the same was again provided.
Despite witnesses were to go back without their examination, in
the interest of justice, matter was adjourn and services of
advocate through Legal Aid was provided. However, on 1.2.2019
again the applicant appears to have prayed for an adjournment
on the ground of engaging a private lawyer. It appears that irked
the learned Judge which led rejection of application for
adjournment, he was ordered to be taken into custody and till
the judgment, the applicant remained in custody. As coming out
from the jail remarks provided by Vadodara Central Jail, it
appears that applicant is in custody for about last 4 years and 4
months.
As coming out from the order passed by this Court
releasing the applicant on bail, pending trial, it appears that First
Informant Report which came to be filed 2 months after the
alleged incident. Drawing attention of the Court to the deposition
of the victim, it is submitted that the act alleged against the
applicant appears to be voluntary but since the victim was less
than 15 years of age, though it is of no use, fact remains that
they held from the tribal community where they have liberty to
select their partners at an early age. At any rate, it is submitted
that out of 10 years imprisonment, he has already undergone 4
years and 4 moths and when they appeared to be in relation, the
applicant aged about 23 years by now, is required to be released
R/CR.A/1233/2021 IA ORDER DATED: 22/11/2021
on bail on suitable conditions.
As against that, Ms.C.M.Shah, learned APP submitted that
since the applicant is convicted for an offence under Section 376
of 'IPC' and Section 4 of 'POCSO' when the age of the victim is
less than 15 years, even if the alleged act is committed with
consent, offence can be said to have been committed and
therefore, the applicant does not deserve any bail.
Considering the overall evidence as also the fact that
during the trial, the applicant was on bail, and for an issue of
changing an advocate, not only his application for adjournment
was refused but he was ordered to be taken into judicial custody
again within few days of his release. Though the Court was within
its bounds, it appears that he remained in custody about 4 years
and 4 months which is given set off by the learned Judge while
convicting him. At any rate, it appears that victim as also the
applicant hail from tribal community and it appears that the
issue is settled between them and their elders, I see no reason to
keep him in custody pending hearing of this appeal which is not
likely to be heard within near future, by suspending the sentence
imposed upon him. Hence, sentence imposed upon the applicant
is hereby suspended and he is ordered to be released on bail on
suitable terms and conditions that may be imposed by the trial
Court. Bail bond shall be executed before the trial Court. This
application stands disposed of. Rule made absolute. Direct
service is permitted.
(UMESH A. TRIVEDI, J)
ASHISH M. GADHIYA
