JUDGMENT :

Sonia Gokani, J.

1. Issue notice returnable forthwith. Mr. Hirday Buch, learned advocate waives service of notice for and on behalf of respondent No. 1.

2. This is an application under Articles 226 and 227 of the Constitution of India so also under section 482 of the Criminal Procedure Code seeking to challenge the order dated 07.03.2019 passed by the learned Sessions Judge, Gir Somnath at Veraval in Criminal Appeal No. 4 of 2019 below Applications Exh. 3 and Exh. 4.

Factual Matrix:

3. Facts in nutshell are enumerated in the following paragraphs:-

4. The First Information Report in the instant case being C.R. No. I-51 of 1995 has been lodged by Shri Madanbhai Khemabhai Maru, a Royalty Inspector working at Veraval, who on an application given jointly by three person of Sutrapada with regard to the illegal excavation of limestone from the pastoral land situated at Taluka: Sutrapada, District: Gir Somnath, more particularly, land bearing Survey Nos. 1509, 1546, 1590 and 1591 initiated this section. A member of the Flying Squad, who is also signatory to the panchnama drawn at the place of offence, along with the other members of the Flying Squad visited the place of offence where they found around 38 to 40 excavated areas. Excavated limestones were allegedly supplied to the Gujarat Heavy Chemicals Limited ("the GHCL" for short). On working out the possible quantity of excavation and the sale of the same to the GHCL, it has been alleged in the FIR itself that the extent of illegal mining of limestone is to the tune of Rs. 2.83 crores quantity of which is around 2.83525 metric tonnes.

4.1 After due investigation, respondent No. 1 came to be chargesheeted along with one another accused, namely, Gordhanbhai Jethabhai Devaliya and they were charged for offences punishable under sections 379, 420 and 114 of the Indian Penal Code.

4.2 During the course of trial, the second accused passed away and, therefore, the case qua him got abated.

4.3 After availing the opportunities to both the sides, the trial got concluded where the judgment and order of conviction as well as sentence, came to be passed by the Court concerned.

4.4 Respondent No. 1 is convicted for the offences punishable under sections 379 of the Indian Penal Code vide judgment and order dated 01.03.2019 passed by learned Judicial Magistrate First Class, Sutrapada, District: Gir Somnath at Veraval and pursuant to this conviction under section 379 of the Indian Penal Code, he is ordered to undergo rigorous imprisonment for the period of 02 years and 09 months and is also ordered to pay fine of Rs. 2,500/- and in default to undergo 10 days of simple imprisonment.

4.5 After the petitioner was held guilty, he was called upon to make submissions on the quantum of sentence, where he has made a request for giving benefit of Probation of Offenders Act, as he had been a sitting member of the Legislative Assembly of the Constituency of Talala in the 2007 and is presently the elected MLA for the second time from the year 2014. He had made a request to the Court for giving benefit of these provisions. It is further the say of the petitioner State that the respondent the had criminal antecedents for having been involved in 07 cases, out of which, in 05 (five) antecedents, he has been acquitted on the ground of inadequate material of evidence. One is pending before the Court of Sessions at Veraval.

4.6 Learned Magistrate, while awarding the sentence on noticing involvement in the case of stealing/robbing natural resources of limestone valuing to an extent of Rs. 2,83,52,500/- (Rs. 2.83 crores rounded off) from the Government land, has chosen not to give the benefit of the Probation of Offenders Act to the respondent and instead has awarded the sentence as stated above.

4.7 An application came to be preferred by respondent No. 1, below Exh. 268 before the Court of learned Magistrate requesting for bail on his deposit of fine of Rs. 2,500/-. He also made a request to grant bail for 30 days intend