Vous êtes sur la page 1sur 21

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.

Page 3 of 21

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),

Page 4 of 21

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

Page 6 of 21

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

Page 8 of 21

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

Page 10 of 21

R/CR.MA/13488/2015

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

R/CR.MA/13488/2015

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
Page 12 of 21

R/CR.MA/13488/2015

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

R/CR.MA/13488/2015

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
Page 14 of 21

R/CR.MA/13488/2015

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

R/CR.MA/13488/2015

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
Page 16 of 21

R/CR.MA/13488/2015

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


Page 17 of 21

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
Page 19 of 21

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
Page 20 of 21

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

Page 21 of 21