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Jammu & Kashmir High Court

Sat Paul Age 35 Years S/O Dhani Ram R/O vs Union Territory Of Jammu & Kashmir on 1 August, 2023

Bench: Tashi Rabstan, Mohan Lal

                                                              Sr. No. 35

  HIGH COURT OF              JAMMU & KASHMIR AND                 LADAKH
                               AT  JAMMU

                                            Crl A (D) 16/2020
                                            CrlM Nos. 796/2023, 943/2020,
                                            c/w
                                            Crl Ref(L) No. 5/2020
                                            Reserved on :25.07.2023
                                            Pronounced on :01.08.2023
  Sat Paul age 35 years S/O Dhani Ram R/O                    .....Appellant(s)
  Draj Mohra Kotranka Rajouri UT of J&K
  (presently lodged in Central Jail Kot Bhalwal
  Jammu).
  Through :- Sh. P.N. Raina, Sr. Advocate with
               Sh. J.A. Hamal, Advocate
      V/s
  Union Territory of Jammu & Kashmir                       .....Respondent(s)
  Through :- Sh. Bhanu Jasrotia, GA.

  CORAM: HON‟BLE MR. JUSTICE TASHI RABSTAN, JUDGE.
               HON‟BLE MR. JUSTICE MOHAN LAL, JUDGE

                                  O R D E R

01 . 08 . 2023 CrlM No. 796/2023

1. By this order, we would dispose of an application preferred by appellant/convict on 10.05.2023 for suspension of his sentence and release on bail in case FIR No. 76/2010 of Police Station Budhal Rajouri, whereby, the trial court of Ld. Principal Sessions Judge Rajouri vide it's judgment of conviction dated 18.08.2020 after finding appellant/accused guilty for commission of offence of murder u/ss 302/449 RPC r/w Section 3 & 25 (1- B) (a) Arms Act has awarded him sentence of rigorous imprisonment of life and also to pay fine of ₹ 10000/- u/s 302 RPC alongwith rigorous imprisonment of 5 years and fine of Rs. 4000/- for commission of offence u/s 449 RPC and further sentence of rigorous imprisonment for 2 years and fine of Rs. 5000/- for commission of offences under Sections 3 & 25(1-B)

(a) Arms Act.

2. Aggrieved of the impugned judgment of conviction and order of sentence, appellant/convict has filed an appeal u/s 374 of Code of Criminal Procedure (hereinafter referred as the „Code‟) bearing Criminal Appeal No. CrlA (D) No. 16/2020 which is pending disposal before this court and is at the stage of final hearing.

3. Appellant/convict has claimed suspension of his sentence and his release on bail on the grounds, that appellant has been in custody since the day of his initial arrest for more than 12 years, his earlier bail application was declined by this court vide order dated 29.07.2022 as this court at that point of time held that appellant/accused was in custody for less than 12 years. It is contended, that the appeal got listed several times on 17.08.2022, 18.10.2022, 20.10.2022, 15.12.2022, 09.02.2023 before the Hon'ble court for final hearing and yet not once could it be reached, the next date of hearing in the appeal is 15.07.2023, since the appeal is only of the year 2020 and as there are much older appeals pending of like nature, there is hardly any chance of appeal being heard in near future. It is stated, that the Hon'ble Supreme Court and also this court has now allowed concession of bail in favour of those who are languishing in jail for more than 10 years and awaiting final hearing of the main appeal before the Hon'ble court, the applicant has suffered without description the affects of his incarceration both on him and on his family which is indescribable. Prayer has been made for suspension of sentence and grant of bail.

4. Respondent were directed to file objections to the application for suspension of sentence and grant of bail dated 10.05.2023, and even last opportunity was granted to the respondent in terms of order of this court dated 09.06.2023, however, respondent choose not to file the objection, and Ld. GA advanced arguments.

5. Sh. P.N. Raina, Sr. Advocate Ld. Counsel for appellant/convict has sought the suspension of the sentence and release of appellant on bail by vehemently canvassing arguments, that the discretion u/s 389(1) Cr.pc is to be exercised judicially, the appellate court is obliged to consider whether any cogent grounds have been disclosed giving rise to substantial doubts about the validity of conviction and whether there is likelihood of unreasonable delay in disposal of the appeal. It is enthusiastically urged, that appellant/convict is lying in incarceration for more than 12 years and on the strength of law laid down by Hon'ble Supreme Court in 2022 Live Law(SC) 788 Supreme Court of India [SONADHAR Versus THE STATE OF CHHATISGARH] wherein the convicts lying in custody for more than 12/13 years respectively have been granted bails, fully applies to the facts of the case in hand.

6. Sh. Bhanu Jasrotia Ld. GA for respondent has strenuously opposed the application for suspension of sentence and grant of bail to the appellant by vigorously articulating arguments, that if appellant/convict is admitted to bail there is every possibility/likelihood that he may jump over the bail and flee from the course of justice as the evidence tendered against him in the trial court whereby he has been convicted, is cogent, convincing, corroborative and reliable.

7. We have heard Sh. P.N. Raina, Ld. Sr. Advocate appearing for appellant, Sh. Bhanu Jasrotia Ld. GA for respondent and examined the impugned judgment of conviction and sentence rendered by the trial court. We have also gone through the entire record of the case and scanned the ratio of the judgment relied by Ld. Counsel for appellant/convict.

8. In the case law reported in 2022 Live Law (SC) 788 Supreme Court of India [SONADHAR Versus THE STATE OF CHHATISGARH] relied by Ld. Counsel for appellant, Hon'ble Supreme Court while granting bail to accused/convict who had undergone more than 10 years imprisonment in life sentence cases observed that the convicts who completed 10 years of imprisonment in life sentences be granted bail unless reasons to deny bail.

9. In a recent judgment of Hon'ble Supreme Court of India dated May 2, 2023 reported in 2023 Live Law (SC) 389 Supreme Court of India [OMPRAKASH SAHNI Versus JAI SHANKAR CHAUDHARY & ANR. ETC.], Hon'ble Supreme Court while appreciating the provision of section 389 of Cr.pc and quashing/setting aside the order passed by High Court of judicature at Patna suspending the substantive order of sentence of life imprisonment imposed by trial court on respondents 1,3&4 in sessions trial No. 280/2019 for commission of offences punishable under sections 302,120-B,506,34 of Indian Penal Code 1860 (for short the IPC) r/w section 27 of Arms Act 1959 for commission of offence of murder, and observing that the sentence can be suspended only when the appellate court without reapreciating the prosecution evidence at the stage of section 389 Cr.pc prima-facie find that the convict has fair chances of acquittal, in head note & in paragraphs 23,24,26,28,29,30,31,32,33 of the judgment held as under:-

Code of Criminal Procedure, 1973; Section 389- to suspend the substantive order of sentence under Section 389 Cr.P.C., there ought to be something apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable - the endeavour on the part of the Court, therefore, should 4 CrlM No. 796/2023 be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be in which, ultimately the convict stands for fair chances of acquittal. (Para 33) Code of Criminal Procedure, 1973; Section 389-the Appellate Court should not reappreciate the evidence at the stage of Section 389 of the Cr.P.C. and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach. (Para 33)

23. The principle underlying the theory of criminal jurisprudence in our country is that an accused is presumed to be innocent till he is held guilty by a court of the competent jurisdiction. Once the accused is held guilty, the presumption of innocence gets erased. In the same manner, if the accused is acquitted, then the presumption of innocence gets further fortified.

24. From perusal of Section 389 of the CrPC, it is evident that save and except the matter falling under the category of sub-section 3 neither any specific principle of law is laid down nor any criteria has been fixed for consideration of the prayer of the convict and further, having a judgment of conviction erasing the presumption leaning in favour of the accused regarding innocence till contrary recorded by the court of the competent jurisdiction, and in the aforesaid background, there happens to be a fine distinction between the prayer for bail at the pre-conviction as well as the post-conviction stage, viz Sections 437, 438, 439 and 389(1) of the CrPC.

26. This Court, in the case of Ash Mohammad v. Shiv Raj Singh alias Lalla Babu and Another, reported in (2012) 9 SCC 446, has observed in para 30, as follows:

"30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused." (Emphasis supplied)

28. In Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi), reported in (2008) 5 SCC 230 (popularly known as the Jessica Lal murder case), this Court had the occasion to consider the rival submissions as well as various judicial pronouncements referred to by both the sides over the prayer for bail. Thus, it has been held as follows:

"19. We are conscious and mindful that the main matter (appeal) is admitted and is pending for final hearing. Observations on merits, one way or the other, therefore, are likely to prejudice one or the other party to the appeal. We are hence not entering into the correctness or otherwise of the evidence on record. It, however, cannot be overlooked that as on today, the applicant has been found guilty and convicted by a competent criminal court. Initial presumption of innocence in favour of the accused, therefore, is no more available to the applicant.

30. ....In the above cases, it has been observed that once a person has been convicted, normally, an appellate court will proceed on the basis that such person is guilty. It is no doubt true that even thereafter, it is open to the appellate court to suspend the sentence in a given case by recording reasons. But it is well settled, as observed in Vijay Kumar [(2002) 9 SCC 364 : 2003 SCC (Cri) 1195 : JT 2002 Supp (1) SC 60] that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the Court should consider all the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the desirability of releasing the accused on bail after he has been convicted for committing serious offence of murder, etc. It has also been observed in some of the cases that normal practice in such cases is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence can be granted.

31. In Hasmat [(2004) 6 SCC 175 : 2004 SCC (Cri) 1757 :

JT (2004) 6 SC 6] , this Court stated : (SCC p. 176, para 6) "6. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the applicant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine." (emphasis supplied)

32. The mere fact that during the period of trial, the accused was on bail and there was no misuse of liberty, does not per se warrant suspension of execution of sentence and grant of bail. What is really necessary is to consider whether reasons exist to suspend execution of the sentence and grant of bail."

(Emphasis supplied)

29. In the case of Atul Tripathi v. State of Uttar Pradesh and Others, reported in (2014) 9 SCC 177, whereunder apart from identifying the differences of consideration of prayer for grant of bail relating to pre- conviction stage as well as post-conviction stage, it has been held in para 14 which is as follows:

"14. Service of a copy of the appeal and application for bail on the Public Prosecutor by the appellant will not satisfy the requirement of the first proviso to Section 389(1) CrPC. The appellate court may even without hearing the Public Prosecutor, decline to grant bail. However, in case the appellate court is inclined to consider the release of the convict on bail, the Public Prosecutor shall be granted an opportunity to show cause in writing as to why the appellant be not released on bail. Such a stringent provision is introduced only to ensure that the court is apprised of all the relevant factors so that the court may consider whether it is an appropriate case for release having regard to the manner in which the crime is committed, gravity of the offence, age, criminal antecedents of the convict, impact on public confidence in the justice-delivery system, etc......

30. In Kishori Lal v. Rupa and Others, reported in (2004) 7 SCC 638, this Court has indicated the factors that require to be considered by the courts 6 CrlM No. 796/2023 while granting benefit under Section 389 of the CrPC in cases involving serious offences like murder etc. Thus, it is useful to refer to the observations made therein, which are as follows:

"4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused- respondents were on bail.

6. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view."

31. In Vijay Kumar v. Narendra and Others reported in (2002) 9 SCC 364 and Ramji Prasad v. Rattan Kumar Jaiswal and Another reported in (2002) 9 SCC 366, it was held by this Court that in cases involving conviction under Section 302 of the IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumar (supra), it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 of the IPC, the court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder.

32. The aforesaid view is reiterated by this Court in the case of Vasant Tukaram Pawar v. State of Maharashtra reported in (2005) 5 SCC 281 and Gomti v. Thakurdas and Others reported in (2007) 11 SCC 160.

33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the above said question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately 7 CrlM No. 796/2023 the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The Appellate Court should not reappreciate the evidence at the stage of Section 389 of the CrPC and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach.

10. Ratio of the recent judgment (Supra) of "OMPRAKASH SAHNI‟S Case"

make the legal proposition manifestly clear, that at the stage of section 389 Cr.pc regarding suspension of sentence, the appellate court should not reappreciate the evidence and try to pickup lacunas or loopholes in the prosecution case, however, if the appellate court can arrive at prima-facie satisfaction that conviction may not be sustainable and the convict ultimately has fair chances of acquittal, only then the substantive order of sentence should be suspended. The aforesaid judgment of Hon'ble Supreme Court of India in "OMPRAKASH SAHNI'S Case" (Supra) has a binding effect upon all courts of the Country, therefore, the earlier judgment relied upon by Ld. Counsel for appellant/convict reported in 2022 Live Law (SC) 788 Supreme Court of India [SONADHAR Versus THE STATE OF CHHATISGARH] is distinguishable and inapplicable to the facts of the case in hand. Ratio decidendi of "OMPRAKASH SAHNI'S Case" (Supra) squarely applies to the facts of the case in hand. It is apt to reiterate here, that from the record it is discernable, that vide impugned judgment of conviction and sentence dated 18.08.2020 rendered by the trial court of Ld. Pr. Sessions Judge Rajouri, appellant/convict has been awarded sentence of rigorous imprisonment of life and fine of ₹ 10000/- u/s 302 RPC alongwith rigorous imprisonment of 5 years and fine of Rs. 4000/- for commission of offence u/s 449 RPC and further sentence of rigorous imprisonment for 2 years and fine of Rs. 5000/- for commission of offences under Sections 3 & 25(1-B) (a) Arms Act. Be it noted, that earlier bail application of appellant/convict has been rejected by this court vide order dated 29.07.2022. Without appreciating the prosecution evidence at this stage of deciding the application for suspension of sentence u/s 389 Cr.pc and grant of bail to appellant/convict, we are of the considered opinion that there is nothing apparent or gross on the face of the record of the case from which this court can arrive at a prima-facie satisfaction that the conviction against 8 CrlM No. 796/2023 appellant/convict is not sustainable and ultimately the appellant/convict has fair chances of acquittal. The nominal rolls/custody certificate issued by Superintendent Central Jail Kot Bhalwal Jammu depict that the appellant has served imprisonment of 12 years 9 months and 11 days so far.

11. In view of the aforesaid discussion, we feel our self persuaded to hold that the appellant/convict at this stage has miserably failed to carve out a strong case for suspension of sentence and his release on bail. The application for suspension of sentence and release of appellant/convict on bail therefore being misconceived under law is disallowed, rejected and dismissed. CrlM No. 796/2023 stands disposed of. Having regard to the fact that appellant/convict is in jail for more than 12 years, we deem it appropriate to expedite the hearing of main appeal. Let the main appeal come for final consideration on 22.08.2023.

                                    (Mohan Lal)           (Tashi Rabstan)
    Jammu                             Judge                  Judge
    01.08.2023
    Vijay

                       Whether the order is speaking?     Yes/No
                       Whether the order is reportable?   Yes/No