Gujarat High Court
Guljar @ Puja @ Samira Mehdi Mamad ... vs State Of Gujarat on 21 August, 2023
Bench: Hasmukh D. Suthar
NEUTRAL CITATION
R/CR.RA/549/2023 ORDER DATED: 21/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 549 of 2023
==========================================================
GULJAR @ PUJA @ SAMIRA MEHDI MAMAD ABHAVANI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR MAKBUL I MANSURI(2694) for the Applicant(s) No. 1,2
MR LB DABHI, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 21/08/2023
ORAL ORDER
1. Rule. Mr.L.B. Dabhi, learned APP waives service of
notice of Rule for the respondent-State.
2. The present application is filed to assail the judgment
and order dated 12.04.2023 passed by the learned Principal
Sessions Judge, Jamnagar, in Criminal Appeal No.94 of
2023 below Exhibit 5 wherein the learned Judge has
dismissed the application for suspension of sentence passed
by the learned 5th Additional Chief Judicial Magistrate,
Jamnagar in Criminal Case No.13653 of 2021 for the
offence under Sections 3(1), 4(1), 5(1), 5(1)(B) and 6(1) of the
Immoral Traffic (Prevention) (for short, "the Act".) Act, 1956.
3. Heard learned advocates for the respective parties.
NEUTRAL CITATION
R/CR.RA/549/2023 ORDER DATED: 21/08/2023
undefined
4. Learned advocate for the applicants submits that the
present applicants were convicted by the learned 5th
Additional Chief Judicial Magistrate, Jamnagar in Criminal
Case No.13653 of 2021 on 10.03.2023 for the offence
punishable under Sections 3(1), 4(1), 5(1), 5(1)(B) and 6(1) of
the Act thereby under Section 3(1), they are sentenced to
undergo one year rigorous imprisonment with fine of
Rs.1,000/- and in default to undergo further one month
simple imprisonment and under Section 4(1) they are
sentenced to undergo one year rigorous imprisonment with
fine of Rs.1,000/- and in default to undergo further one
month simple imprisonment under Section 5(1) and 5(1)(B),
they are sentenced to undergo three years rigorous
imprisonment with fine of Rs.1,000/- in default to undergo
further one month simple imprisonment and under Section
6(1) of the Act, they are sentenced to undergo seven years
rigorous imprisonment with fine of Rs.2000/- in default, to
undergo further two months simple imprisonment. All the
sentences are directed to run concurrently.
NEUTRAL CITATION
R/CR.RA/549/2023 ORDER DATED: 21/08/2023
undefined
5. Being aggrieved and dissatisfied, the applicants have
filed an application for suspension of sentence passed in
judgment and order dated 10.03.2023, by the learned 5 th
Additional Chief Judicial Magistrate, Jamnagar in Criminal
Case No.13653 of 2021 before the learned Principal
Sessions Judge, Jamnagar by filing Criminal Appeal No.94
of 2023 below Exhibit 5 and the learned Principal Judge has
been pleased to dismissed the appeal for suspension of
sentence filed by the applicants vide judgment and order
dated 12.04.2023.
6. Being aggrieved and dissatisfied by the judgment and
order dated 12.04.2023 passed by the learned Principal
Judge, Jamnagar, the present Revision Application has
been filed before this Court.
7. Per contra, Learned APP has vehemently opposed the
application and submitted that the trial Court has properly
appreciated the evidence produced on record. Therefore, he
prays that the present application be dismissed.
NEUTRAL CITATION
R/CR.RA/549/2023 ORDER DATED: 21/08/2023
undefined
8. Learned advocate for the applicant after arguing some
time and keeping in view the offence levelled against the
applicant No.1, does not press the present application qua
the respondent No.1 The application stands disposed of qua
the present applicant No.1 - Guljar @Puja @Samira Mehdi
Mamad Abhavani. However, if the appeal is not decided by
the Court below within one year, it is open for the applicant
No.1 to file a fresh application after a period of one year.
9. So far applicant No.2 - Nabira @Nargish D/o
Maqboolbhai Sudhaguniya is concerned, having heard the
learned advocates for the respective parties and having
considered the documents produced on record, it appears
that during the trial, the applicant No.2 has remained in
bail whereas applicant No.1 is in jail since the date of his
arrest i.e. approximately one and half years.
10. It appears from the evidence on record that the
allegation made against the respondent No.2 is that the
rented premises of the applicant No.2 have been used for
NEUTRAL CITATION
R/CR.RA/549/2023 ORDER DATED: 21/08/2023
undefined
unethical activity, except that no other allegation has been
leveled against the applicant No.2.
11. The legal parameters for suspension of sentence have
also been laid down by the Apex Court in the case of
Angana & anr. Vs. State of Rajasthan, reported in (2009) 3
SCC 767, wherein, the Hon'ble Apex Court has held in para
14 that:
"14. When an appeal is preferred against conviction in
the High Court, the Court has ample power and
discretion to suspend the sentence, but that discretion
has to be exercised judiciously depending on the facts
and circumstances of each case. While considering the
suspension of sentence, each case is to be considered
on the basis of nature of the offence, manner in which
occurrence had taken place, whether in any manner
bail granted earlier had been misused. In fact, there is
no strait jacket formula which can be applied in
exercising the discretion. The facts and circumstances
of each case will govern the exercise of judicial
discretion while considering the application filed by the
convict under Section 389 of Criminal Procedure Code."
12. In view of the above, the applicant No.2 has made out
NEUTRAL CITATION
R/CR.RA/549/2023 ORDER DATED: 21/08/2023
undefined
arguable case and hence, this Court is of the view that the
case of the applicant No.2 deserves consideration. This
Court has also considered that there is no possibility of
early hearing of the appeal in the Court below.
13. In view of the above, the present application is partly
allowed. The substantive sentence imposed 5th Additional
Chief Judicial Magistrate, Jamnagar in Criminal Case
No.13653 of 2021 is hereby ordered to be suspended
pending hearing and final disposal of the Criminal Appeal
pending before the Court below qua the. The applicant No.2-
Nabira @Nargish D/o Maqboolbhai Sudhaguniya shall be
released on bail by executing a fresh bond of Rs.10,000/-
(Rupees Ten Thousand Only) with one surety of the like
amount to the satisfaction of the trial Court, on the
conditions that:-
(a) shall not take undue advantage of liberty or
misuse liberty;
(b) shall not leave India without prior
permission of this Court.
(c) shall furnish the present address of his
NEUTRAL CITATION
R/CR.RA/549/2023 ORDER DATED: 21/08/2023
undefined
residence to the Court concerned at the time
of execution of the bond and shall not
change the residence without the prior
permission of this Court.
d) shall proceed with the Criminal Appeal as
and when it may be listed.
14. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(HASMUKH D. SUTHAR,J)
ALI
