R/CR.
MA/13488/2015
CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO.
13488 of 2015
In CRIMINAL APPEAL NO. 864 of 2015
==========================================================
VISMAY AMITBHAI SHAH....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
==========================================================
Appearance:
MR YOGESH S.LAKHANI, Senior Advocate with MR MAUNISH T PATHAK,
ADVOCATE for the Applicant(s) No. 1
MR RC KODEKAR, SPL.PUBLIC PROSECUTOR for the Respondent No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 20/07/2015
CAV ORDER
This is an application u/s.389 of Code of
Criminal Procedure seeking suspension of sentence
and releasing the applicant accused on bail as
he is taken in custody because of judgment of
conviction
dated
Addl.Sessions
13.7.2015
Judge,
Sessions
Case
judgment,
the
no.41
by
Ahmedabad
of
applicant
2013.
has
the
(Rural)
By
been
2nd
in
impugned
convicted
u/ss.279, 427, 304 Part II of the Indian Penal
Code as well as Section 134(1) r/w.Sections 177
and
184
of
the
Motor
Vehicles
Act,
1988
for
driving his vehicle rashly and negligently so as
to result into death of two persons on 24.02.2013
in Ahmedabad City. That the Sessions Court has
awarded various punishments between 6 months to
Page 1 of 21
R/CR.MA/13488/2015
CAV ORDER
five years for different offences, and thereby,
maximum imprisonment awarded is five years with
total fine of Rs.31,000/-; whereas,u/s.357(3) of
the Code of Criminal Procedure, 1973, the accused
is directed to pay Rs.5 Lacs to both the families
of
each
victims.
compensation
Thereby,
awarded
is
total
Rs.10
amount
Lacs.
of
However,
there is no clarity on record that whether the
applicant has paid the amount of fine or not,
whereas
compensation
is
to
be
paid
within
month, and therefore, it can be paid on or before
13.08.2015.
2.
Since
this
application
is
u/s.389
of
the
Cr.P.C., basic requirement of such section needs
to be taken into consideration. The bare reading
of the section makes it clear that, in general,
the
Appellate
recorded
by
execution
Court
it
of
in
the
may,
for
writing,
sentence
reasons
order
or
to
that
order
be
the
appealed
against be suspended and, also, if the convict is
in confinement, he be released on bail, or on his
own bond,
against
pending
the
any appeal preferred
judgment
and
order
of
by him
conviction.
However, such powers can be exercised subject to
certain proviso viz. (1)
the
Appellate
Courts;
before releasing on bail a convicted person, who
is convicted of an offence punishable with death
or imprisonment for life or imprisonment in terms
of not less than 10 years; shall give opportunity
to the public
writing
against
prosecutor
for showing
such release
Page 2 of 21
cause in
and (2) in cases
R/CR.MA/13488/2015
CAV ORDER
where a convict person is released on bail, it
shall be open to the public prosecutor to file an
application for cancellation of bail. Rest of the
provision of Section are not material at present.
Therefore,
there
it
becomes
are no specific
enactment
for
clear
and
reasons
obvious
assigned
consideration
of
that
by the
such
an
application except giving an opportunity to the
public
prosecutor
where
sentence
Thereby,
to show cause only in cases
is
though
for
cases
more
where
than
10
conviction
years.
is
for
imprisonment for a term less than 10 years, there
may
not
be
strict
opportunity
to
the
cause
why
that
requirement
public
bail
to
extend
prosecutor
should
not
be
to
an
show
granted.
However,to avoid any technicality on such count,
by order dated 15.7.2015, rule was served upon
the
State,
though
they
have
received
advance
notice of the appeal as well as this application.
3.
up;
Therefore, the legal position can be summedrelying
Honble
upon
Supreme
the
Court
latest
in
decision
the
case
of
of
the
Atul
Tripathi v. State of U.P. reported in AIR 2014 SC
3062; as under:a. The appellate court, if inclined to
consider the release of a convict sentenced
to punishment for death or imprisonment for
life or for a period of ten years or more,
shall first give an opportunity to the
public prosecutor to show cause in writing
against such release.
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R/CR.MA/13488/2015
CAV ORDER
b. On such opportunity being given, the
State is required to file its objections,
if any, in writing.
c.
In case the public prosecutor does
not file the objections in writing, the
appellate court shall, in its order, specify
that no objection had been filed despite the
opportunity granted by the court.
d.
The court shall judiciously consider
all the relevant factors
whether specified
in the objections or not, like gravity of
offence, nature
of
the crime,
age,
criminal
antecedents
of
the
convict,
impact
on
public confidence in court,
etc. before passing an order for release.
4.
It is also necessary to record here that the
victims
thereby
families
they
are
have
chasing
the
come
forward
also
trial
to
and
seek
appearance in the present appeal and application
so as to oppose the admission of the appeal and
application
for
bail.
However,
though
it
is
permissible, at present, to avoid further delay
in proceeding bail application, their request to
file
appearance
support
the
is
refused
with
learned
Sp.P.P.
in
liberty
objecting
to
the
application. During the course of submissions, it
is
disclosed
preferring
by
them
that
appropriate
they
proceeding
are
also
seeking
enhancement of sentence. Thus, when Special P.P.
and
learned
advocate
for
victims
families
are
opposing the bail application, it is certainly in
compliance of the first three conditions of the
above referred decision of Atul Tripathi (supra),
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R/CR.MA/13488/2015
though
in
CAV ORDER
my
view,it
is
necessary
only
if
sentence is more than 10 years, whereas in the
present case, it is only five years. Applicant
has also filed compilation of relevant evidence,
copies of which is provided to other side.
5.
Submissions
by
the
learned
senior
counsel
Mr.Yogesh Lakhani appearing with learned advocate
Mr.Maunish
Pathak
for
the
applicant
may
be
summarized as under:5.1
The
trial
Court
has
adopted
a strange
method to conclude negative findings against the
applicant
that since his blood sample was not
tested for couple of days, it cannot be said that
he was not in a drunken condition, though there
is no such evidence on record that applicant has
consumed alcohol at the time of incident.
5.2
This
vehicle
is
with
footpath,
moving
not
case
pedestrian
but
it
vehicles
altogether
is
an
and,
different
of
or
accident
an
by
occupant
a
of
accident
between
two
thereby,
there
are
facts
and
evidence,
and
thus, the position and situation than the wellknown cases of Sanjeev Nanda and Alister Anthony
Pereira
both
(2012)2
SCC
reported
648
in
(2012)8
respectively.
SCC
450
Thereby,
and
when
nature and result of the incident in the given
case
is
better
conviction
confirmed
and
u/s.304
with
Part
in such reported
Page 5 of 21
less
II
of
calamity,
the
IPC
when
is
cases, there is no
R/CR.MA/13488/2015
CAV ORDER
reason to convict the present application under
such section and that too for five years.
5.3
Nature
considered
in
of
incident
detail
with
requires
evidence
to
on
be
record,
whereby it is proved that there is no knowledge
or intention to cause death of the victim, and
therefore, conviction u/s.304 Part II of the IPC
is
unwarranted
and
at
the
most,
it
may
be
u/s.304-A of the IPC, though the stand taken by
the applicant during the trial as well as in the
appeal
is
of
total
innocence,
both
for
the
incident and even for his identity as a driver of
the vehicle in question at the relevant time.
5.4
The
investigation
was
not
proper
inasmuch as when speed of applicants vehicle was
taken
into
consideration,
the
speed
of
other
vehicle being motorcycle involved in the incident
was not examined at all and no evidence has been
collected to confirm the speed of motorcycle and,
thereby, even the negligence of the victims while
driving their vehicle on road, which ultimately
resulted into their own death, is not considered.
5.5
Motor
Even
Vehicle
the
fact
Rules
by
regarding
the
violation
victim
has
of
been
ignored inasmuch as none of them have worn helmet
at the time of the incident.
5.6
Even
the
speed
of applicants
car
was
not scrutinized properly and evidence on record
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R/CR.MA/13488/2015
regarding
CAV ORDER
speed
of
the
car
is
without
any
scientific test, and therefore, decision on speed
and thereby conviction is based upon presumption
alone.
6.
In addition to factual submissions as above,
the
applicant
is
relying
upon
following
decisions:Alister
Anthony
Maharashtra
reported
(1)
which
the learned
Periera
in
Vs.
(2012)2
State
SCC
senior counsel
648
of
from
has read out
paragraphs 74 to 79 and 97 submitting that the
incident in the present case cannot be considered
as an offence u/s.304 Part II of the IPC, as
there was no knowledge or intention on the part
of
the
applicant
about
the
result
of
such
incident. What is emphasised by learned senior
counsel is to the effect that when fact of the
case is different inasmuch as there is no death
of pedestrian or occupants of footpath and that
too
in
huge
numbers
and
when
the
accident
is
between two moving vehicles, there is no reason
for confirming conviction u/s.304 Part II of the
IPC.
(2)
State
through
PS
Lodhi
Colony,
New
Delhi
Vs.Sanjeev Nanda reported in (2012)8 SCC 450, the
learned senior counsel has relied upon discussion
in
paragraphs
114
to
121
Page 7 of 21
of
such
judgment
R/CR.MA/13488/2015
CAV ORDER
submitting that even for the death of number of
persons by driving vehicle without license and in
drunken
state,
confirmed
the
the
Honble
conviction
Supreme
of
two
Court
years
has
only.
Therefore, when the offence even if considered to
be
proved,
may
fall
u/s.304-A
of
the
IPC
and
conviction of five years is improper and, hence,
when appeal is not going to be heard in near
future, applicant should be released on bail.
(3)
For
such
submission,
applicant
is
relying
upon the decision of Kiran Kumar Vs. State of
M.P. Reported in (2001)9 SCC 211.
(4)
He
is
also
relying
upon
the
decision
of
Bhagwan Rama Shinde Gosai & Ors. Vs. State of
Gujarat reported in (1999)4 SCC 421 and Angana &
Anr. Vs. State of Rajasthan reported in 2009(2)
GLH
37;
whereas
relying
upon
the
order
dated
31.3.2014 in Special Leave to Appeal (Criminal)
no.1699
of
2014
by
the
Honble
Supreme
Court
granting bail in favour of the applicant, pending
trial, it is submitted that bail is granted to
the applicant with strict condition that he shall
not drive any vehicle even two wheelers during
the pendency of Criminal Case against him, and
therefore, similar condition may be imposed, but
to
release
relying
the
upon
applicant
the
on
judgment
bail.
and
He
is
order
also
dated
8.5.2015 in Criminal Application no.592 of 2015
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R/CR.MA/13488/2015
CAV ORDER
in Criminal Appeal no.572 of 2015 by the High
Court of Bombay in the case of Salman Salim Khan
Vs.
The
State
of
Maharashtra
submitting
that
pending appeal, bail can be granted in such a
case.
7.
As
against
that,
learned
Special
Public
Prosecutor has argued at length submitting that
there
are
several
application.
His
reasons
for
rejecting
submissions
are
applicant
is
such
summarized
as
under:7.1
Now,
beyond
the
reasonable
decision
is
after
doubt
by
found
guilty
Trial
Court
of
evidence
evaluation
whose
and,
thereby, when there is least chance of settingaside
of
conviction,
sentence
cannot
be
suspended.
7.2
Thereby, when there is least chance of
acquittal, bail cannot be granted and sentence
cannot be suspended only because of pendency of
appeal or the period if taken in hearing of such
appeal, since State is always ready to proceed
further in any such appeal at the earliest.
7.3
According
to
settled
legal
position,
suspension of sentence is not a matter of course
and
bail
can
be
refused
in
absence
of
any
exceptional circumstances for granting the same.
7.4
The
applicant
has
Page 9 of 21
failed
to
show
any
R/CR.MA/13488/2015
CAV ORDER
exceptional circumstance to grant the bail. On
the
contrary,
circumstances
are
against
the
applicant inasmuch as the applicant has flouted
atleast
two conditions
of bail imposed
by the
Honble Supreme Court while granting him bail.
Those two conditions in order dated 31.3.2014 are
as under:c)
He shall not directly or indirectly
make any inducement, threat or promise to any
person acquainted with the facts of the case
so as to dissuade him to disclose such facts
to the Court or to any other authority;
xxxx
xxxx
xxxxx
xxxx
f)
He will not dispute his identity as
the accused in the case;
7.5
So far
as condition
(c)
is concerned,
though it is a regular condition of bail, it is
certainly a strict and serious condition whereby
every accused is always restrained from making
any inducement either directly or indirectly to
any person acquainted with the facts of the case,
so as to dissuade him to disclose such fact to
the Court or to any other authority. As against
that, it is submitted that in fact as soon as
applicant has been released on bail by such order
dated 31.3.2014, he has immediately induced two
key witnesses of the incident being PWs-11 and
12, namely, Lalitkumar Rajesh Gupta and Dinesh
Mafabhai
Chaudhary.
witnesses
have
Thereby,
categorically
though
stated
in
these
their
statement before the police that they have seen
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CAV ORDER
the incident and the accused coming out of the
vehicle from the drivers seat and saying sorry
to the victims and injured at the relevant time,
they turned hostile during their evidence before
the Court. But, fortunately, since they have made
similar statement regarding identification of the
accused in a live telecast of one news-channel,
the prosecution has to call for the additional
evidence from such TV Channel and has to examine
as many as eight witnesses to prove that both the
eye-witnesses are not telling the truth before
the Court and while doing so, they have produced
as
many
as
14
other
documentary
evidences
on
record. After such additional evidence pursuant
to approval of recording such additional evidence
by judgment and order dated 11.12.2014 in Special
Criminal
Application
prosecution
has
no.5012
proved
the
of
2014,
involvement
of
the
the
accused beyond reasonable doubt, and therefore,
when Trial Court has issued notice to such eyewitnesses being PWs-11 and 12 for not disclosing
truth before the Court on oath, now, there is an
evidence
on
record
that
present
applicant
has
induced such witnesses and tried to win over them
and, thereby tried to hide his identity as an
accused and driver of the vehicle in question.
For
the
purpose,
he
is
relying
upon
the
observation by the Co-ordinate Bench of this High
Court in such judgment dated 11.12.2014 that no
sooner the accused was ordered to be released on
bail,
the
most
important
Page 11 of 21
eye-witness
to
the
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CAV ORDER
incident, and that too the first informant was
won-over and in the course of trial, he turned
hostile. Therefore, the High Court has allowed
the application by the father of the victim for
adducing
additional
evidence
by
calling
the
relevant witnesses before whom PWs 11 and 12
have given a interview to a TV Channel stating
that how they had witnessed the incident and how
they
confirmed
that
accused
was
driving
the
vehicle at the time of incident.
7.6
In background of such factual details,
it is submitted that it amounts to breach of both
the
conditions
Court
for
imposed
granting
by
bail,
the
which
Honble
Supreme
are
reproduced
(f)
regarding
herein above.
7.7
So
far
as
condition
identity is concerned, in addition to making an
attempt to win over the eye-witness to disprove
his identity, the applicant has not only taken
defence and plea of not driving the vehicle at
the relevant time, but had gone to the extent of
saying in his further statement u/s.313 of the
Cr.P.C. before the Court that he owns 3 to 4
vehicles, which are parked in his compound and
his family is consisting of 4 to
5 members and
whoever is in need of the vehicle may take away
any of the vehicle at any point of time and,
thereby, it is not certain that who was driving
the vehicle at the relevant time, but he was not
driving the vehicle in question at the relevant
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CAV ORDER
time and that evidence regarding his identity is
not sufficient to prove his guilt. Therefore, it
is submitted that this is nothing but breach of
condition of bail imposed by the Honble Supreme
Court,
and
therefore,
there
is
no
reason
or
exceptional circumstance to release the applicant
on bail.
7.8
It is also submitted that conduct of the
applicant
is
consideration
required
inasmuch
to
as
be
after
taken
the
into
incident,
instead of helping the injured and victim, either
by
taking
them
to
hospital
or
by
calling
ambulance by dialing 108, or atleast informing
the nearby police station about the incident, the
applicant had run away from the place of incident
and though vehicle was owned by him and though
such vehicle was badly damaged and lying on road
at the place of incident, the applicant was not
available
to
take
care
of
his
vehicle
or
to
disclose that if he was not driving the vehicle
at the relevant time, then amongst his family and
drivers,
who
was
driving
the
vehicle
at
the
relevant time. If such fact is not disclosed till
the statement u/s.313 is recorded, then, it is
certain that applicant is taking disadvantage of
procedural
lacunae
in
investigating
procedures
and advantage of judicial process. But, in any
case, he has certainly breached condition (f) of
Honble Supreme Courts order releasing him on
bail.
Page 13 of 21
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7.9
So
CAV ORDER
far
as
nature
of
incident
is
concerned, it is submitted that the contention by
the applicant is not proper because the impact
had not resulted at the time when motorcyclist
had taken a right turn, but motorcycle was hit on
its back i.e. after the motorcycle had completed
its turn, and therefore, it is nothing, but an
attempt to misguide the Court. So far as speed is
concerned, it is submitted that the speed of the
vehicle was proved by Officer of F.S.L as well as
supplier of the vehicle, which is of BMW make
contending
that
their
engine
is
equipped
with
chips, which records the RPM and even thereafter
both the agencies have conducted speed test to
ascertain their result. Therefore, it cannot be
ignored.
In
concerned,
any
it
notification
case,
is
of
so
far
submitted
local
as
that
authority,
speed
there
is
was
restraining
over-speeding of the vehicle beyond 60 Kms. per
hour, and therefore, even if speed is somewhat
less
than
the
report,
it
amounts
to
gross
negligence on the part of the applicant.
7.10
Rule
Learned
6(d)
and
Sp.P.P.
8
of
is
the
also
Rules
relying
upon
of
Road
the
Regulations, 1989.
7.11
Learned Sp.P.P. through learned advocate
appearing for the victims family is also relying
upon
the
observations
of
the
Honble
Supreme
Court made in the same judgments of Sanjeev Nanda
& Alister Periera (supra) contending that even in
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CAV ORDER
these two judgments, Honble Supreme Court has
nowhere
said
that
in
such
cases,
conviction
should be u/s.304A rather than Section 304 Part
II of the IPC and read-over certain paragraphs,
which
includes
paragraph
35
from
AIR
2012
SC
3104, wherein definition of word reckless is
considered.
7.12
Learned
Sp.P.P.
is
relying
upon
following decisions:a. Bhagwan Rama Shinde Gosai & Ors. Vs. State of
Gujarat reported in (1999)4 SCC 421;
b. Kanaka Rekha Naik Vs. Manoj Kumar Pradhan &
Anr.reported in AIR 2011 SC 799;
c.
Central Bureau of Investigation, New Delhi
Vs.Roshan Lal Saini reported in (2012)12 SCC 390;
d.
Shiv Kumar Vs. State of NCT of Delhi reported in
(2008)17 SCC 122 and;
e.
K.C.Sareen Vs. CBI, Chandigarh reported in
(2001)6 SCC 584;
8.
However, at present I am not deciding the
appeal finally, and therefore, it would not be
necessary
above
and
appropriate
evidences
in
to
detail
discuss
to
arrive
all
the
at
any
specific determination or conclusion. At present,
I
have
ascertain
to
decide
that
the
whether
bail
in
application
given
facts
to
and
circumstances, the applicant may be released on
bail by suspending the sentence or not. For the
same,
reference
to
the
decision
of
Honble
Supreme Court in the case of Kanaka Rekha Naik vs
Manoj Kumar Pradhan & Anr reported in (2011)4 SCC
596 is relevant, wherein Honble Supreme Court
has categorically held that when a convict person
Page 15 of 21
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CAV ORDER
is sentenced to a fixed period of sentence and
when
he
files
an
appeal
under
any
statutory
right, suspension of sentence can be considered
by the appellate Court liberally unless there are
exceptional circumstances, and the sentence of a
limited duration cannot be suspended, but every
endeavour should be made to dispose of the appeal
on merits at the earliest more so when a motion
for expeditious hearing of the appeal is made in
such cases. Thereby, though, it is observed that
otherwise,
the
very
valuable
right
of
appeal
would be an exercise in futility by efflux of
time, suspension of sentence, pending any appeal
by a convicted person and consequential release
on
bail
is
not
matter
of
course
and
the
appellate Court is required to record reasons in
writing for suspending the sentence and release
of
convict
concluding
on
bail
paragraph
pending
14,
the
the
appeal.
Honble
In
Supreme
Court has opined that nature of allegations, the
findings
recorded
by
the
trial
Court
and
the
alleged involvement of the accused ought to have
been taken into consideration for deciding as to
whether
sentence
release
it
is
awarded
on
fit
by
bail
case
the
during
for
trial
the
suspending
the
Court
and
his
of
the
pendency
appeal.
9.
In
State
of
Karnataka
Vs.
Krishnappa
reported in (2000)4 SCC 75, Honble Supreme Court
has held that the sentencing Courts are expected
to consider all relevant facts and circumstance
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CAV ORDER
bearing on the question of sentence and proceed
to
impose
sentence
commensurate
with
the
gravity of the offence. Courts must hear the loud
cry
for
justice
by
the
society
in
cases
of
heinous crimes of rape on innocent helpless girls
of tender years as in this case, and respond by
imposition of proper sentence. Public abhorrence
of the crime needs reflection through imposition
of appropriate sentence by the Court. There are
no
extenuating
available
on
imposition
or
the
of
prescribed
mitigating
record
any
minimum
which
sentence
to
circumstances
the
may
less
justify
than
respondent.
To
the
show
mercy in the case of such a heinous crime would
be travesty of justice and the plea for leniency
is wholly misplaced. The High Court in the facts
and circumstances of the case, was not justified
in interfering with the discretion exercised by
the Trial Court and our answer to the question
posed in the earlier part of the judgment is an
emphatic No.
10.
In Sadha Singh and Anr. Vs.State of Punjab
reported in (1985)3 SCC 225, a three Judge Bench
of
Honble
observed
in
The
Supreme
paragraph
Court
of
India,
that
if
someone
has
is
enlarged on bail during the pendency of appeal
and when the appeal is dismissed sending him back
to jail is going to raise qualms of conscience in
the Judge, granting of bail pending appeal would
be
counterproductive.
One
can
preempt
or
forestall the decision by obtaining an order of
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R/CR.MA/13488/2015
CAV ORDER
bail.
11.
In view of above facts and circumstances and
submissions by both the sides, what is required
to be considered at present is a simple issue
that whether there is an exceptional circumstance
on
either
side
sentence
and
bail
to
or
i.e.
thereby
refuse
either
to
release
the
suspend
the
same.
The
the
applicant
on
evidence
on
record and submission referred herein above makes
it clear that in fact there is no exceptional
circumstance
appellant
in
favour
of
the
so as to immediately
applicant
release
him on
bail only because he has filed an appeal and only
on the ground that appeal may not be decided in
near
future,
more
particularly,
when,
now,
business of Criminal Appeals have been assigned
to more than one Court even for final hearing,
whereby the jail appeals are given priority in
final
ready
hearing,
to
and
argue
therefore,
the
if
appeals,
parties
there
is
are
no
difficulty in deciding such appeal at an early
date.
Whereas,
on
the
contrary,
it
has
been
noticed that appeals are not being argued at the
earliest because of order of bail in favour of
the applicant and after long time, when appeals
are
required
appellants
are
to
not
be
argued,
available.
In
practically,
the
present
case, both the sides have agreed that otherwise
they
are
ready
and
willing
to
proceed
in
the
appeal at the earliest, and therefore, reason for
granting
bail
assigned
in
Page 18 of 21
the
cases
of
Kiran
R/CR.MA/13488/2015
Kumar
CAV ORDER
& Bhagwan
Rana (supra)
are not material
and, hence, only because of such judgments, bail
cannot be granted without considering the settled
legal
position
for
granting
bail
in
any
such
cases wherein in fact nature of case and other
issues are more relevant.
12.
So far as exceptional circumstance in favour
of the prosecution is concerned, prosecution has
rightly
pointed
relevant
out
material
and
that
in
able
fact
to
show
with
applicant
has
committed breach of condition of bail granted by
the Honble Supreme Court, and therefore, though
prosecution can pray for cancellation of his bail
pending trial, when trial is now completed and
applicant
is convicted,
now, he should not be
released on bail. There is certainly substance in
such submission which dis-entitles the applicant
to be released on bail. So far as other factual
submissions are concerned, since the appeal is
yet to be finally heard on its own merits, I am
avoiding detailed discussion and determination on
such factual aspects except observing that I am
not convinced by any of such arguments made on
factual
basis
treated
as
an
by
the
applicant,
exceptional
which
circumstance
can
in
be
his
favour so as to release him on bail as prayed
for.
13. Therefore, the gravity of offence is serious
or severe when two young men were died, more so
due to non support by the applicant after the
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R/CR.MA/13488/2015
CAV ORDER
accident so as to take them to hospital, so also
the conduct of the applicant immediately after
the incident and also in flouting directions of
the Honble Supreme Court. Thus, the impact on
public confidence in Court considering the nature
of
accident,
applicant,
its
also
result
goes
and
conduct
against
the
of
the
applicant.
Hence, even if he is of young age and may not
have any criminal antecedent as proved on record
of this case, against these two neutral grounds,
when remaining three grounds goes against him, I
do
not
see
any
special
or
exceptional
circumstance so as to release the applicant on
bail by suspending his conviction as per impugned
judgment, where the trial Court has taken proper
care of each and all evidence
before
it,
so
also
the
and submissions
legal
submissions.
Therefore, there seems to be very less chance of
acquittal. Then, the only care to be taken by the
appellate Court is to see that appeal is heard at
the
earliest,
for
the
purpose
necessary
directions are being issued.
14. In
when
view
there
of
is
above
no
facts
and
exceptional
circumstances,
circumstance
in
favour of the applicant, as against that it is in
favour of the prosecution for not suspending the
sentence,
application
dismissal.
do
not
and,
However,
see
any
hence,
substance
the
considering
same
the
in
the
deserves
verdict
of
the Honble Apex Court in several cases, that if
sentence is not suspended, then, every endeavour
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R/CR.MA/13488/2015
CAV ORDER
should be made by the High Court to decide the
appeal at the earliest, it would be necessary to
direct the Registry to call for the R & P as well
as
paper-book
from
the
trial
Court
at
the
earliest or at least before 10.8.2015 and to list
the appeal for expeditious hearing on receipt of
record and proceeding.
15. The
observations
and
discussions
in
this
order is only for the purpose of deciding this
application
at
this
stage
and
shall
not
be
considered against any litigant during the final
hearing
of
appeal,
which
will
be
certainly
the
Criminal
decided on his own merits.
16. For
the
foregoing
Misc.Application
is
reasons,
dismissed
with
above
directions. Rule discharged.
(S.G.SHAH, J.)
binoy
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