High Court

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-1- 905-APPLN.1486.2024IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 1486 OF 2024 IN APEAL/330/2024Vishal Dhondu Malekar, Age : 29 years, Occu. : Labour, R/o. Shelwad, Tq. Bodwad, Dist. Jalgaon.… Applicant. Versus1.The State of Maharashtra,Through its Investigating Officer, Bodwad, Dist. Jalgaon. 2.X.Y.Z.… Respondents....Advocate for Applicant : Mr. Harshal Prakash RandhirAPP for Respondent - State : Mrs. Chaitali Chaudhari - Kutti Advocate for Respondent No.2 : Ms. Falguni Kulkarni (Appointed)...CORAM : ABHAY S. WAGHWASE, J.DATED : 03 MAY, 2024PER COURT :-1.This is an application for suspension of sentence andgrant of bail by virtue of conviction recorded by AdditionalSessions Judge, Bhusawal, District Jalgaon in Sessions CaseNo.182 of 2021.2.Notices were issued to respondents on 03.04.2024.According to learned Advocate for applicant, he has effectedservice to respondent no.2. He has placed affidavit of service onrecord. -2- 905-APPLN.1486.20243.Today, the matter is only for the purpose of suspensionof sentence and grant of bail. As in spite of service, complainant orher representative has failed to appear. Learned Advocate Ms.Falguni Kulkarni is hereby appointed to represent cause ofrespondent no.2.4.Applicant/Appellant to supply copies of memo andannexures, if any, to the learned Advocate appointed forrespondent no.2 immediately.5.Keep the matter for hearing today at 2:30 p.m.At 2 : 30 p.m. : 6.Applicant, who is convict is praying for suspension ofsentence and grant of bail during pendency of appeal.7.Learned Advocate for applicant submitted that there isfalse implication. That, complaint is delayed one. That, there areallegations of forcibly taking victim in the house and embracingher and issuing threats for not disclosing anyone about seeingaccused in close company of his girlfriend. It is pointed out that,there is no distinct evidence in this regard. Moreover, FIR is after06 days. That, applicant was on bail during trial. Now, he haschallenged the judgment and order of conviction by filing appeal, -3- 905-APPLN.1486.2024however, appeal being recent one, it would take long time to beheard and decided and hence, it is prayed that, relief of suspensionof sentence as well as grant of bail be granted.8.Above application is strongly opposed by learned APPby pointing out that victim is 15 years of age. That, she had seenthe accused in close company of his girlfriend. Fearing she woulddisclose to other, she was forcibly taken in the house by accusedand she was hugged and threatened her with dire consequences.Learned APP pointed out that, because of fear, victim consumedinsecticide and was hospitalized, and therefore, there is delay inlodging FIR. For all above reasons, learned APP prays to refuse therelief as prayed.9.Learned Advocate appointed for Respondent no.2complainant also strongly opposed the application by pointing outage of victim to be of 15 years. She further submitted that, afterseeing accused in compromising position with his girlfriend,accused started stalking victim. On 01.10.2021, he forcibly tookher in the house, hugged her and even threatened her. Therefore,on carefully analyzing evidence, guilt has been recorded. LearnedAdvocate also as like learned APP prays to refuse the relief asprayed. -4- 905-APPLN.1486.202410.After considering the submissions of both sides and ongoing through the papers, it is emerging that, Bodwad PoliceStation registered crime bearing no.239 of 2021 for commission ofoffence under sections 327, 354, 354-A, 354-D, 452, 342, 323,504, 506 read with section 34 of Indian Penal Code (IPC) andunder sections 7, 8, 11, 12, 16 and 17 of Protection of Childrenfrom Sexual Offences Act, 2012. Complaint was registered, wherein there are allegationsthat, one month prior to 06.10.2021, when victim was passingthrough a lane and when she was near the house of accused, shehappened to see accused sleeping on a cot with his girlfriend. Theyboth also saw, victim seeing them near each other on a cot.According to victim, thereafter accused started stalking her. That,on 01.10.2021, while she was alone in her house, accused visitedher house, caught her and forcibly took her in his own house,embraced her and even threatened her that she should not discloseanyone about seeing him with his girlfriend. He also slapped her.She also alleged that, his girlfriend also threatened that, if she tellanyone about their love affair, they will not let her live and furtheraccused applicant said that he could have physical relations withher and would defame her. -5- 905-APPLN.1486.202411.On the basis of such accusation, accused seems to havebeen charge-sheeted for commission of offence under sections 327,354, 354-A, 354-D and 342 of Indian Penal Code (IPC) and undersection 7, 8, 11 and 12 of POCSO Act and was made to face trial. Onconclusion of trial, learned Judge seems to have held applicantguilty, but only for offence punishable under section 354 of IPC andhe is sentenced to suffer rigorous imprisonment for one year and topay fine of Rs.2,500/-. Apparently, such judgment is passed on04.03.2024, against which appeal has been preferred before thiscourt bearing Criminal Appeal No.330 of 2024. Statement is madeacross the bar that applicant was on bail during trial. Suchstatement is not disputed by learned APP or learned Advocateappearing for the victim.12.Considering the nature of allegations, quantum ofsentence and the fact that appeal being of 2024, would take longtime to be heard and decided, relief as prayed deserves to begranted. Hence, I proceed to pass the following order :- ORDER(i) Criminal Application stands allowed.\ -6- 905-APPLN.1486.2024(ii)The substantive sentence imposed on the applicantVishal Dhondu Malekar in Sessions Case No.182 of2021 by Additional Sessions Judge, Bhusawal,District Jalgaon on 04.03.2024 stands suspendedtill the final hearing and disposal of CriminalAppeal No.330 of 2024.(iii)The applicant be released on P.R. Bond ofRs.15,000/- (Rs. Fifteen thousand only) with twosolvent sureties in the like amount.(iv)The applicant shall not commit any criminalactivity.(v)The applicant shall remain present before thelearned trial Judge once in six months, till finalhearing and disposal of the appeal, commencingfrom the date he tenders bail papers andthereafter, the trial Judge to fix dates for theirsubsequent appearances.(vi)In case of two consecutive defaults on the part ofthe applicant to remain present before the trialCourt, the trial Court to inform this Court about thesame and in that eventuality, the prosecutionwould be at liberty to file an application forcancellation of the bail granted to the applicant.(vii)Bail before the trial Court. -7- 905-APPLN.1486.2024(viii)Fees of learned Advocate, who is appointed torepresent the cause of respondent no.2, isquantified at Rs.3,000/- to be paid by High CourtLegal Services Sub-Committee, Aurangabad.( ABHAY S. WAGHWASE, J. )Tandale