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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. 1MR 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 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
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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
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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, it becomes clear and obvious that
there are no specific reasons assigned by the
enactment for consideration of such an
application except giving an opportunity to the
public prosecutor to show cause only in cases
where sentence is for more than 10 years.
Thereby, though cases where conviction is for
imprisonment for a term less than 10 years, there
may not be a strict requirement to extend an
opportunity to the public prosecutor to show
cause that why bail should not be 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. Therefore, the legal position can be summed-
up; relying upon the latest decision of the
Honble Supreme Court in the case of Atul
Tripathi v. State of U.P. reported in AIR 2014 SC
3062; as under:-
a. The appellate court, if inclined toconsider the release of a convict sentencedto punishment for death or imprisonment forlife or for a period of ten years or more, shall first give an opportunity to the public prosecutor to show cause in writingagainst such release.
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b. On such opportunity being given, theState is required to file its objections, if any, in writing.
c. In case the public prosecutor does not file the objections in writing, theappellate court shall, in its order, specifythat no objection had been filed despite the opportunity granted by the court.
d. The court shall judiciously considerall the relevant factors whether specifiedin the objections or not, like gravity ofoffence, 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 families are chasing the trial and
thereby they have also come forward to 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 is refused with liberty to
support the learned Sp.P.P. in objecting the
application. During the course of submissions, it
is disclosed by them that they are also
preferring appropriate proceeding 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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though in 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 is not a case of accident by a
vehicle with pedestrian or an occupant of
footpath, but it is an accident between two
moving vehicles and, thereby, there are
altogether different facts and evidence, and
thus, the position and situation than the well-
known cases of Sanjeev Nanda and Alister Anthony
Pereira both reported in (2012)8 SCC 450 and
(2012)2 SCC 648 respectively. Thereby, when
nature and result of the incident in the given
case is better and with less calamity, when
conviction u/s.304 Part II of the IPC is
confirmed in such reported cases, there is no
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reason to convict the present application under
such section and that too for five years.
5.3 Nature of incident requires to be
considered in detail with evidence on 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 Even the fact regarding violation of
Motor Vehicle Rules by the victim has 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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regarding 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:-
(1) Alister Anthony Periera Vs. State of
Maharashtra reported in (2012)2 SCC 648 from
which the learned senior counsel 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 of such judgment
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submitting that even for the death of number of
persons by driving vehicle without license and in
drunken state, the Honble Supreme Court has
confirmed the conviction of two years 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 the applicant on bail. He is also
relying upon the judgment and order dated
8.5.2015 in Criminal Application no.592 of 2015
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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 reasons for rejecting such
application. His submissions are summarized as
under:-
7.1 Now, the applicant is found guilty
beyond reasonable doubt by Trial Court whose
decision is after evaluation of evidence and,
thereby, when there is least chance of setting-
aside 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 failed to show any
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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 indirectlymake any inducement, threat or promise to any person acquainted with the facts of the caseso as to dissuade him to disclose such factsto the Court or to any other authority;xxxx xxxx xxxxx xxxx
f) He will not dispute his identity asthe 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. Thereby, though these
witnesses have categorically stated in their
statement before the police that they have seen
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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 no.5012 of 2014, the
prosecution has proved the involvement of the
accused beyond reasonable doubt, and therefore,
when Trial Court has issued notice to such eye-
witnesses 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 eye-witness to the
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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 imposed by the Honble Supreme
Court for granting bail, which are reproduced
herein above.
7.7 So far as condition (f) regarding
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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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 required to be taken into
consideration inasmuch as after the 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.
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7.9 So 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 any case, so far as speed is
concerned, it is submitted that there was
notification of local authority, 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 Learned Sp.P.P. is also relying upon
Rule 6(d) and 8 of the Rules of the Road
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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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 and appropriate to discuss all the
above evidences in detail to arrive at any
specific determination or conclusion. At present,
I have to decide the bail application to
ascertain that whether in given facts 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
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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 a matter of course and the
appellate Court is required to record reasons in
writing for suspending the sentence and release
of a convict on bail pending the appeal. In
concluding paragraph 14, the Honble 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 it is a fit case for suspending the
sentence awarded by the trial Court and his
release on bail during the pendency of the
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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bearing on the question of sentence and proceed
to impose a 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 or mitigating circumstances
available on the record which may justify
imposition of any sentence less than the
prescribed minimum to the respondent. To 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 The Supreme Court of India, has
observed in paragraph 7 that if someone 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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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 i.e. either to suspend the
sentence and thereby release the applicant on
bail or to refuse the same. The evidence on
record and submission referred herein above makes
it clear that in fact there is no exceptional
circumstance in favour of the applicant
appellant so as to immediately 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 hearing, and therefore, if parties are
ready to argue the appeals, there is 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 to be argued, practically,
appellants are not available. In 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 the cases of Kiran
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Kumar & 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 out and able to show with
relevant material that in fact 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 by the applicant, which can be
treated as an exceptional circumstance in 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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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, its result and conduct of the
applicant, also goes against 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 and submissions
before it, so also the 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 view of above facts and circumstances,
when there is no exceptional circumstance in
favour of the applicant, as against that it is in
favour of the prosecution for not suspending the
sentence, I do not see any substance in the
application and, hence, the same deserves
dismissal. However, considering the verdict of
the Honble Apex Court in several cases, that if
sentence is not suspended, then, every endeavour
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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
decided on his own merits.
16. For the foregoing reasons, the Criminal
Misc.Application is dismissed with above
directions. Rule discharged.
(S.G.SHAH, J.) binoy
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