Sultan Noorbha Baji Malek vs State Of Gujarat
2021 Latest Caselaw 15320 Guj

     R/CR.A/2076/2018                                    IA ORDER DATED: 29/09/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  CRIMINAL MISC.APPLICATION NO. 4 of 2021
                         (FOR SUSPENSION OF SENTENCE)

                                         In

                        R/CRIMINAL APPEAL NO. 2076 of 2018
==========================================================

SULTAN NOORBHA BAJI MALEK Versus STATE OF GUJARAT ========================================================== Appearance:

for the PETITIONER(s) No. MR P P MAJMUDAR for the PETITIONER(s) No. MR. VIPUL B SUNDESHA for the PETITIONER(s) No. MR JK SHAH APP for the RESPONDENT(s) No. ==========================================================

CORAM:HONOURABLE MR. JUSTICE A.J.DESAI and HONOURABLE MR. JUSTICE NIRZAR S. DESAI

Date : 29/09/2021

IA ORDER (PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. The present application has been filed under Section 389 of Cr. P.C., by the applicant - appellant, seeking suspension of his sentence pending Criminal Appeal No.2076 of 2018 arising out of the judgment and order dated 07.08.2018 passed by the learned 2 nd Additional Sessions Judge, Vadodara in Sessions Case No. 26 of 2011. By the said judgment, the applicant came to be convicted mainly for offence under section 302 read with Section 149 of the Indian Penal Code and sentenced to undergo life imprisonment with fine of Rs.2,000/- and in default of making payment of fine ordered he has been ordered to undergo further six months rigorous

R/CR.A/2076/2018 IA ORDER DATED: 29/09/2021

imprisonment. Likewise, the applicant has been also convicted for offences under Sections 143, 147, 148, 313 read with Section 149, Section 324 read with Section 149 and Section 325 read with section 149 of the Indian Penal Code and in all these sections the learned Sessiosn Judge has ordered the applicant -appellant to undergo imprisonment not less than three months of rigorous imprisonment with payment of fine and in default of making payment ordered to further undergo simple rigorous imprisonment of one month. However, the learned 2nd Additional Sessions Judge, Vadodara has ordered the applicant - appellant to undergo all sentences concurrently.

2. Heard learned advocate Mr. P.P.Majmudar for the applicant - appellant and the learned Additional Public Prosecutor for the State.

3. Mr.Majmudar, learned advocate for the applicant would submit that looking to the role played by the present applicant other than the serious role played by other co-convict, the present application may be allowed. In support of this, he has relied on the orders passed by this Court whereby the sentence period of other co- convict has been suspended i.e. the order dated 18.09.2021 passed in Criminal Miscellaneous Application No.4 of 2019 in Criminal Appeal No.2076 of 2018 and the order dated 08.03.2021 in Criminal Miscellaneous

R/CR.A/2076/2018 IA ORDER DATED: 29/09/2021

Application No.2 of 2021 in Criminal Appeal No.1527 of 2018. He, therefore, requests for grant of the present application.

4. Learned Additional Public Prosecutor for the State could not controvert the submission made by the advocate for the applicant that role of the applicant is not that much serious in comparison to other accused who have been released on bail.

5. Having regard to the facts and circumstances of the case and to the submissions made by the learned advocates for the parties, having gone through the earlier orders passed by this Court whereby sentence of some of the accused have been suspended, having gone through the role played by the present applicant and having considered the allegations levelled against the present applicant, who has allegedly given simple injury to an injured eye-witness who was admitted in the hospital and was discharged on the same day that too within couple of hours, we are of the opinion that the present application deserves to be granted. Accordingly, the present application is allowed.

6. In view of the above, it is directed that the execution of the sentence imposed by the learned Sessions Court in Sessions Case No.26 of 2011 shall remain suspended pending the appeal qua the present applicant - appellant

R/CR.A/2076/2018 IA ORDER DATED: 29/09/2021

viz. SULTAN NOORBHA BAJI MALEK and that he shall be released on bail pending the appeal subject to the following conditions :-

(i) The applicant shall furnish the bond of Rs.10,000/-

and surety of the like amount and also furnish his full and correct present and permanent address, if any, along with the contact numbers.

(ii) The applicant shall deposit his passport, if any, before the concerned Sessions Court.

(iii) The applicant shall report to the concerned Police Station on any day of the first week once in a month.

7. Rule is made absolute. A copy of the order be sent to the concerned Sessions Court as well as to the concerned Police Station.

(A.J.DESAI, J)

(NIRZAR S. DESAI,J) MISHRA AMIT V.