Dungarbhai Nathubhai Sagathia vs State Of Gujarat
2021 Latest Caselaw 17107 Guj

       R/CR.A/1614/2021                               ORDER DATED: 29/10/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/CRIMINAL APPEAL NO. 1614 of 2021
                             With
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
                           1 of 2021
             In R/CRIMINAL APPEAL NO. 1614 of 2021
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                          DUNGARBHAI NATHUBHAI SAGATHIA
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR.KISHORE PRAJAPATI(6305) for the Appellant(s) No. 1
MS. MONALI BHATT, APP for the Opponent(s)/Respondent(s) No. 1
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     CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                  Date : 29/10/2021

                                   ORAL ORDER

Order in Criminal Appeal:

ADMIT.

Order in Criminal Misc. Application (For Suspension of Sentence):

1. Heard learned advocate Mr. Kishore Prajapati for the Applicant and learned APP Ms. Monali Bhatt for Respondent State of Gujarat.

2. Rule. Learned APP waives service of rule on behalf of Respondent-State.

3. The Applicant (Original Accused) has filed this Criminal Misc. Application under Section 389 of the Code of Criminal Procedure, 1973 for suspension of sentence during the pendency of Criminal Appeal.

4. The Applicant / Accused viz. Dungarbhai Nathubhai Sagathia is tried by the learned 5th Additional Sessions Judge, Bhavnagar in Special

R/CR.A/1614/2021 ORDER DATED: 29/10/2021

A.C.B. Case No. 4 of 2015 for the offences punishable under Sections 7, 13(1)(d) and 13(2) etc. of the Prevention of Corruption Act (hereinafter referred to as the "P.C. Act"). The learned 5 th Additional Sessions Judge, Bhavnagar by judgment and order dated 16.9.2021 has convicted the Appellant and sentenced him to undergo S.I. of 3 Years and fine of Rs. 10000/- and, in default, further simple imprisonment of 4 months for the offence punishable under Section 7 of the Prevention of Corruption Act. The Applicant / Accused is also sentenced to undergo 5 Years SI and awarded fine of Rs. 20,000 and in default of the payment of fine, further SI of 6 months for the offence punishable under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act. The Applicant / Accused is also convicted and sentenced to suffer SI for a period of 3 Years and to pay a fine of Rs.10,000/- and in default to undergo SI for a further period of 4 months for the offence under Section 12 of the Prevention of Corruption Act.

Submissions of the parties:

5. Learned Advocate for the Applicant has drawn the attention of this Court to the relevant paragraphs of the judgment that it is mandatory to have the authorization certificate under Section 65B of the Indian Evidence Act, since the memory card upon which the prosecution has heavily placed reliance upon, after recording, it may be tampered. Therefore the panchas are required to narrate the description of the same whether it is blank or not and whether it justifies all procedural formalities or not. Simultaneously, the memory card as also the CD which requires authorization certificate under Section 65B of the Indian Evidence Act, same is not carried out. It is therefore submitted that the learned Judge has committed error in law and hence the present Application for suspension of sentence requires to be considered by this

R/CR.A/1614/2021 ORDER DATED: 29/10/2021

Hon'ble Court. Learned advocate for the applicant has submitted that the hearing of Criminal Appeal will take time and there is a prima facie case of acquittal against the applicant/accused.

5.1 Learned advocate for the applicant has further contended that fine is deposited before the Sessions Court.

5.2 In support of his submissions, learned advocate for the applicant/accused has relied on the decisions of the Hon'ble Supreme Court in the case of Bhagwan Rama Shinde Gosai v. State of Gujarat, reported in 1999(0) AIJEL-SC 3225 = 1999 (4) SCC 421 = AIR 1999 SC 1859. Learned advocate for the applicant has therefore prayed to grant bail to the applicant by imposing certain conditions as may be deemed fit by this Court.

6. Learned APP however resisted the Application. She submitted that the Applicant / Accused is convicted, which is sentence for the ACB cases. The learned APP has further submitted that the learned Sessions Judge has rightly observed and discussed about all the ingredients regarding Prevention of Corruption, like demand, acceptance and recovery. She has therefore prayed to reject the Application.

7. This Court has considered the judgment and order passed by the learned Sessions Judge including the reasons assigned therein and also the averments made in the memo of application. This Court has also considered the ratio laid down by the Hon'ble Apex Court in Bhagwan Rama Shinde Gosai's case (supra), wherein the Head Note states as under:

"Suspension of sentence during pendency - appeal against

R/CR.A/1614/2021 ORDER DATED: 29/10/2021

conviction - factors to be considered - appellants accused filed an appeal before the High Court for suspension of sentence - disallowed - held, High Court was not inclined to hear appeal expeditiously - based on the stringent conditions, sentence passed on appellants suspended - appellants directed to be released on bail - appeal disposed of."

8. Thus, considering the arguments advanced by the learned Advocate for the Applicant and learned APP for the Opponent - State of Gujarat and also the facts and circumstances of the case, in the interest of justice, sentence imposed by the learned 5th Additional Sessions Judge, Bhavnagar in Special ACB Case No. 4 of 2015; the execution of sentence under impugned order is required to be suspended.

9. Accordingly, the present application stands allowed. Pending the Criminal Appeal, the execution of sentence under impugned order is hereby stayed. In view of Section 390 of Cr.P.C., Applicant is ordered to execute fresh bond of Rs.25,000/ (Twenty Five Thousand), with one solvent surety of the like amount to the satisfaction of the learned Trial Court and comply with the conditions that he shall:

(a) not take undue advantage of his liberty or abuse his liberty.

(b) maintain law and order and not to indulge in any criminal activities.

(c) furnish the address of his residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change his residence without prior permission of the Trial Court.

(d) furnish the list of his immovable properties, whether self acquired or ancestral with description, location and value of such property on an affidavit before the learned Trial court.

(e) not to leave territory of India without prior permission of the learned Trial Court.

R/CR.A/1614/2021 ORDER DATED: 29/10/2021

(f) provide his contact numbers as well as the contact numbers of the surety before the learned Trial Court.

(g) surrender his passport, if any, to the lower Court, within a week.

10. If breach of any of the above conditions is committed, the concerned Trial Court will be free to issue warrant or take appropriate action in the matter.

11. In view of the above, the present application stands allowed.

Rule is made absolute to the aforesaid extent.

Direct service is permitted by E-mail/Fax.

(A. C. JOSHI,J)

J.N.W