Kanubhai Purshottambhai Parekh vs State Of Gujarat

Ashutosh J. Shastri, J

By way of this application filed by the applicant- original accused No.1, a request is made to suspend the order of sentence dated 2.8.2021 passed in Special Case No.2 of 2020 (old Case No.3 of 2005) tried by learned Special Judge (ACB), Valsad.

The applicant-accused was charged for the offences punishable under the provisions of the Prevention of Corruption Act, 1988 and after the trial of the case, learned Special Judge (ACB), Valsad was pleased to convict the applicant for the offences punishable under Section 7 of the Prevention of Corruption Act, 1988 and sentenced him to undergo R.I. for 4 years and pay fine of Rs.25,000/- and in case of default of payment of fine, to suffer further S.I. for 6 months. The applicant was also convicted for the offences punishable under Sections 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced him to undergo R.I. for 4 years and pay fine of Rs.25,000/- and in case of default of payment of fine, to suffer further S.I. for 6 months and the said sentences were ordered to run concurrently.

It is the case of the applicant that there is a strong case and having found merit in the appeal, which has been filed by the applicant- accused, being Criminal Appeal No.1136 of 2021, the Court was pleased to admit the appeal vide order dated 24.8.2021 and issued Rule in the present application for seeking suspension of sentence.

Learned advocate Mr. N.D. Gohil appearing on behalf of the applicant has submitted that the applicant is by now aged about 72 years and his health has been deteriorated and further, pursuant to the impugned order of conviction and sentence, which has been passed, the applicant has been taken into custody and has actually surrendered on the day of the order, i.e. 2.8.2021, and since then, the applicant is in custody. The applicant was throughout on bail during the course of long drawn trial. The old case was numbered as Case No.3 of 2005, which came to be decided finally and despite that, the applicant has never misused his liberty in any form and he has scrupulously observed the terms of the bail till he surrendered before custody and therefore, looking to the age of the applicant, he being an ailing person of aged 72 years, request for suspension of sentence be considered in the interest of justice. Mr. Gohil has further submitted that the appeal is of 2021 and looking to the prevailing situation, same is not likely to be decided in near future and this being a short sentence, may be under the Special statute, request for suspension be considered, particularly in view of the circumstance that the applicant has surrendered himself to the custody, has remained throughout on bail during the course of trial and has never misused the liberty and further, at the time of pronouncement, he had reached the age of 72 years with ailing health and therefore, in view of this peculiar background of fact, request may be considered. To substantiate his request, Mr. Gohil has relied upon few decisions delivered by Hon'ble the Apex Court as well as by the Gujarat High Court, which are as under:-

(1) In the case of Angana and Another Vs. State of Rajasthan reported in (2009)3 SCC 767;

(2) In the case of J. Jayalalithaa Vs. State of Tamil Nadu reported in (2015)3 SCC 111,

(3) In the case of Suresh Kumar and others Vs. State (NCT of Delhi) reported in (2001)10 SCC 338,

(4) In the case of Anil Ari Vs. State of West Bengal reported in 2009(2) GLH 184, and

(5) In the case of Atul Indravadan Vaidh, Through his wife Vaidh Dipikaben Atulbhai Vs. State of Gujarat and Another reported in 2017 Cri. L.J. 3978.

After referring to the aforesaid decisions, learned advocate Mr. Gohil has submitted that the request be considered in the larger interest of justice. On the contrary, a request is also made to the effect that the appeal may be expedited.

To the aforesaid submissions, learned Additional Public Prosecutor Mr. J.K. Shah appearing on behalf of the respondent- State has submitted that the applicant is facing an order of conviction and sentence after full-fledged adjudication of the trial and therefore, the applicant has been rightly taken into custody and simply because, the appeal is filed, that would not be a ground for enlarging him on bail by suspending the sentence. However, looking to the fact that the applicant has surrendered on 2.8.2021 and his peculiar age of 72 years with no proper health and the appeal is of 2021, Mr. Shah has left to the discretion of the Court.

Having heard learned advocates for the parties and having gone through the aforesaid peculiar background of fact and keeping in view the submissions made by learned advocate Mr. Gohil, the age of the applicant and the fact that throughout, the applicant was on bail, having not misused his liberty and further the appeal of 2021 is not likely to be taken up finally in a short while, and as such, keeping in view the proposition of law cited by learned advocate Mr. Gohil, the Court is inclined to consider the request made by the applicant during pendency and final disposal of the Criminal Appeal.

Accordingly, present application stands ALLOWED. The order of sentence passed by learned Special Judge (ACB), Valsad at Vapi dated 2.8.2021 in Special Case (ACB) No.2 of 2020 (old Case No.3 of 2005) shall remain under suspension till the final hearing and disposal of the main Criminal Appeal. The applicant is ordered to be enlarged on bail on his executing a personal bond of Rs.10,000/-(Rupees Ten Thousand Only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;

(a) not take undue advantage of liberty or misuse liberty or abuse the liberty, maintain law and order.

(b) surrender passport, if any, to the lower Court within a week;

(c) not leave the State of Gujarat without prior permission of the Sessions Judge concerned;

(d) furnish latest and permanent address of the residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;

Rule is made absolute accordingly.

Direct Service is permitted.