VISMAY AMITBHAI SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) 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 13.7.2015 by the 2nd Addl.Sessions Judge, Ahmedabad (Rural) in Sessions Case no.41 of 2013. By impugned judgment, the applicant has been 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 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. Thereby, total amount of compensation awarded is Rs.10 Lacs. 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 a 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 Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if the convict is in confinement, he be released on bail, or on his own bond, pending any appeal preferred by him against the judgment and order of 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 prosecutor for showing cause in writing against such release and (2) in cases 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.

(3.) Therefore, the legal position can be summedup; relying upon the latest decision of the Hon'ble Supreme Court in the case of Atul Tripathi v. State of U. P., 2014 AIR(SC) 3062) as under:-