1.0 Rule. Shri L.B. Dabhi, learned Additional Public Prosecutor waives service of rule on behalf of respondent – State in both Criminal Revision Applications.
2.0 In the facts and circumstances of the case and with the consent of the learned advocates appearing on behalf of the respective parties, the present Criminal Revision Applications are taken up for final hearing today.
3.0 As common question of law and facts arise in both these Criminal Revision Applications, they are disposed of by this common judgment and order.
4.0 Criminal Revision Application No.469 of 2012 has been preferred by the applicant herein – original accused – Goganbhai Kalabhai Gadhavi to quash and set aside the impugned judgment and order dated 25/05/2012 passed by learned 6th Additional Sessions Judge, Junagadh below Exh.5 in Criminal Appeal No.32 of 2012, by which, learned Sessions Court has rejected the said application submitted by the applicant herein – original accused to suspend the sentence and to release him on bail in connection with Criminal Case No.83 of 2004, by which, he has been convicted by learned Judicial Magistrate, First Class, Visavadar for the offence punishable under Section 51(1) of the Prison Act and was sentenced to undergo one year RI and to pay fine of Rs.1,000/ and in default to undergo further one month RI.
4.1. Criminal Revision Application No.470 of 2012 has been preferred by the applicant herein – original accused – Hikhabhai Jivabhai Gujaria to quash and set aside the impugned judgment and order dated 25/05/2012 passed by learned 6th Additional Sessions Judge, Junagadh below Exh.5 in Criminal Appeal No.31 of 2012, by which, learned Sessions Court has rejected the said application submitted by the applicant herein – original accused to suspend the sentence and to release him on bail in connection with Criminal Case No.23 of 2004, by which, he has been convicted by learned Judicial Magistrate, First Class, Visavadar for the offence punishable under Section 51(1) of the Prison Act and was sentenced to undergo one year RI and to pay fine of Rs.1,000/ and in default to undergo further one month RI.
5.0 It appears that being aggrieved and dissatisfied with the order passed by the learned trial Court convicting the respective applicants for the offences under Section 51 of the Prison Act, respective applicants original accused have preferred Criminal Appeals before the learned Sessions Court, Junagadh, which are numbered as Criminal Appeal Nos. 31 of 2012 and 32 of 2012. In the said appeals, respective applicants original accused have submitted the application Exh.5 to suspend the sentence and release them on bail. However, said applications have been rejected by the learned Sessions Court by impugned order by observing that as such respective applicants are undergoing sentence pursuant to the judgment and order of conviction and sentence passed by the learned Sessions Court in Sessions Case No.165 of 1996 and the respective applicants are required to undergo sentence of one year pursuant to judgment and order of conviction and sentence which is sought to be suspended after the respective applicants completed sentence in the aforesaid Sessions Case No.164 of 1996 and therefore, the order passed by the learned JMFC, Visavadar convicting the respective applicants for the offences under Section 51(1) of the Prison Act and to suspend the sentence cannot be granted and therefore, application Exh.5 is premature.
5.1. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Appellate Court passed below Exh. 5 in respective Criminal Appeals No. 31 and 32 of 2012 in not suspending the sentence and releasing them on bail in connection with the offence under the Prison Act, the respective applicants original accused have preferred present Criminal Revision Applications.
6.0 Shri Dave, learned advocate for the respective applicants have vehemently submitted that as such sentence imposed in Sessions Case No.165 of 1996 is over in October and as the applicants are likely to complete the entire sentence in the month of October 2012 the learned Sessions Court ought to have suspended the sentence for the offence under the Prison Act and ought to have released the applicants on bail by passing order that the applicant in the said offence can be released on bail if not required in any other cases. It is further submitted that even the conditional order could have been passed by the learned Appellate Court that the bail is granted subject to completing the sentence in Sessions Case No.165 of 1996. Therefore, it is requested to allow the present Criminal Revision Application and direct the applicants to be released on bail in connection with the offences under the Prisons Act even by observing that the judgment and order of conviction and sentence passed by the learned JMFC, Visavadar for the offence punishable under Section 51(1) of the Prisons Act is suspended and the applicants are released on bail if not required in any other cases.
7.0 Shri Dabhi, learned Additional Public Prosecutor for the State as such is not disputing the above, however has submitted that as such the applicants are convicted for the life and as they have undergone sentence of approximately 13 years 11 months and 10 days and further order is required to be passes by the State and therefore, unless and until State passed an order it cannot be said that the respective applicants have undergone their entire sentence. Therefore, it is submitted that as and when it is found that the respective applicants have undergone entire sentence in Sessions Case No.165 of 1996 they may be approached the learned Appellate Court for suspending sentence and released them on bail for the offences under the Prisons Act and the same may be directed to be continued on merits.
8.0 Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that the respective applicants are undergoing the sentence of life imprisonment pursuant to judgment and order of conviction passed in Sessions Case No.165 of 1996 and in the meantime they are also convicted by the learned JMFC, Visavadar for the offence under the Prisons Act and they are directed to sentence undergo one year R.I with fine. Therefore, the respective applicants submitted the applicants Exh.5 in the appeal against the judgment and order of conviction and sentence passed by the learned JMFC, Visavadar convicting the respective applicants for the offence under the Prisons Act and to suspend the sentence, however the same has been rejected by the learned Appellate Court on the ground that as on today the respective applicants are undergoing sentence of life imprisonment pursuant to the judgment and order of conviction and sentence passed in Sessions Case No.165 of 1996 and the respective applicants are required to undergo sentence of one year R.I for the offence under the Prisons Act only after they complete the sentence in Sessions Case No.165 of 1996 and therefore, the applications are premature. It is the case of the applicants that by now they have completed entire sentence so far as Sessions Case No. 165 of 1996 is concerned, as they have completed sentence of more than approximately 13 years and 11 months. It appears that respective applicants are sentenced to undergo life imprisonment and therefore, even if it is found that the respective applicants have undergone 14 years in jail it is for the State Government to pass appropriate order. Therefore, unless and until any further order is passed by the State Government, when the respective applicants are sentenced to undergo life imprisonment it cannot be said that the respective applicants have undergone entire sentence awarded by the learned Sessions Court in Sessions Case No.165 of 1996.
9.0 Under the circumstances, present Revision Applications are disposed of reserving the liberty in favour of the original applicants to file fresh applications in respective Criminal Appeals for suspending the sentence and to release them on bail in connection with the offence under the Prisons Act after it is found that respective applicants have undergone entire sentence pursuant to the judgment and order of conviction and sentence passed in Sessions Case No. 165 of 1996 and as and when such an applications are made the learned Appellate Court to consider the same and pass appropriate order suspending the sentence and releasing them on bail in accordance with law and on merits. In the meantime, it will be open for the respective applicants even to submit appropriate application for early hearing of the appeals which may also be considered by the learned Appellate Court and the learned Appellate Court is directed to see that said appeals are disposed of at the earliest. With this, present Criminal Revision Applications are disposed of. Direct service is permitted.
“kaushik”
sd/ ( M. R. Shah, J. )