1. Rule. Ms.Chetna Shah, learned Additional Public Prosecutor waives service of notice of Rule for respondent No.1-State of Gujarat. On the facts and in the circumstances of the case, and with the consent of the learned counsel for the respective parties, the application is being heard and finally decided, today.
2. The applicant is original accused No.3 of Sessions Case No.43/2010. The applicant has been convicted for the offences punishable under Sections 147, 148, 188 and 504 of the Indian Penal Code and Section-135 of the Bombay Police Act, vide judgment and order dated 27.06.2012 of the Sessions Court, Mehsana (Camp at Visnagar). The applicant has filed the present application under Section-389 of the Code of Criminal Procedure, 1973, for suspension of sentence during the pendency and final disposal of the appeal.
3. Heard Mr.Mrudul M. Barot, learned advocate for the applicant and Ms.Chetna Shah, learned Additional Public Prosecutor for respondent No.1-State of Gujarat.
4. It is submitted by Mr.Barot that the total period of sentence imposed upon the applicant is of one year. There is no likelihood that the appeal filed by the applicant would be heard and disposed of, within a period of one year. It is further submitted that the applicant has remained on bail throughout the trial and has not misused the liberty granted to him in any manner, therefore, in view of the law laid down by the Supreme Court in Bhagwan Rama Shinde Gosai Vs. State of Gujarat reported in AIR 1999 SC 1859 and Angana and another Vs. State of Rajasthan reported in 2009 (2) GLH 37, the prayers made in the application may be granted.
5. Ms.Chetna Shah, learned Additional Public Prosecutor has opposed the grant of the prayers made in the application, but has not come out with any material to show that the applicant has misused his liberty, while on bail during trial.
6. Having heard the learned counsel for the respective parties and in view of the aspect that the total period of sentence imposed upon him is of one year and, as there is no material to show that the applicant has misused the liberty granted to him while he was on bail during trial, the application deserves to be considered. Further, there does not appear to be any likelihood that the appeal would be heard and disposed of within a short period of time, therefore, this Court considers it to be a fit case in which to exercise discretion in favour of the applicant.
7. It has been submitted by the learned advocate for the applicant that the fine imposed by the Sessions Court has been paid by the applicant. The Trial Court has suspended the sentence of the applicant for a period of thirty days, which is expiring today, therefore, the applicant is presently on bail.
8. For the aforestated reasons, the application is allowed. The sentence imposed on the applicant vide judgment and order dated 27.06.2012 passed by the 3rd Additional Sessions Judge, Mehsana, Camp at Visnagar, in Sessions Case No.43/2010, shall remain suspended during the pendency of the appeal. The applicant is ordered to be released on the same bail as granted by the Trial Court, with fresh bail bonds.
9. Rule is made absolute.
Direct Service of this order is permitted.
Gaurav+ (Smt. Abhilasha Kumari, J.)