Madhya Pradesh High Court
Rahees Khan vs State Of M.P. on 3 February, 2017
1
CRA.590/2004
Rahish Khan Vs. State of M.P.
03.02.2017
Shri Sushil Goswami, counsel for the appellant.
Shri Arun Barua, Panel Lawyer for the respondent / State.
This Criminal appeal assails the judgment dated 05.08.2004
in S.T. No. 268/2003 passed by First Additional Sessions Judge,
Gwalior whereby the appellant has been convicted u/S 302/149 of
IPC and sentenced to suffer life imprisonment with a fine of
Rs.1000/-, u/s 148 IPC sentenced to suffer three years of rigorous
imprisonment & u/s 201 IPC sentenced to suffer three years of
rigorous imprisonment with fine of Rs. 1000/- with default
stipulation.
IA No. 2702/2015, 11th repeat application for suspension of
jail sentence is taken up and considered along with reply filed by
the State.
Reply discloses that there was an offence punishable under
Section 302,34 IPC as Crime No. 252 /2003 registered against the
appellant. In regard to said criminal antecedent the appellant has
brought on record judgment of acquittal dated 08.02.2005
rendered in S.T. No. 315/2003 passed by Second Additional
Sessions Judge, Gwalior whereby the sole appellant has been
acquitted from the said offence of murder. The record indicates
that he has not misused the liberty granted to him of interim
suspension of sentence and had surrendered within the prescribed
time.
Learned counsel for the appellant contended that appellant
has suffered about 12 years of imprisonment including the pre and
post conviction period. Reliance is placed on Raghuvar Singh @
Raghuveer Singh Vs. State of M.P. 2015 (2) JLJ 218 where
bail was granted by way of suspension of sentence solely on the
2
CRA.590/2004
ground of long lodgement. In the decision of Raghuvar Singh
(supra) this Court has held as under :-
"20.An appeal of a life convict in custody
pending since more than 11 years with no hope of final
hearing in the near future, discloses a dismal scenario.
If the State cannot provide final hearing of appeals
within reasonable time, then State is obliged to create a
suitable mechanism, by way of legislation or executive
fiat to remove this malady. Such positive step shall
repose confidence of the common man in the judicial
system. Judiciary is known to be the last resort of the
people aggrieved by action/inaction of the legislature
and executive. People at large look up to judiciary for
justice rendered with promptitude. "Justice delayed is
justice denied" is a well known maxim. Even if the
appeal of a life convict in custody is allowed at a time
when substantial part of sentence is suffered, the
justice rendered gets defeated in actuality. The
frustration faced by the acquitted, gets accentuated by
absence of any compensatory provision in criminal law
to indemnify against wrongful confinement and
prosecution.
21. Moreover our criminal jurisprudence does
not exclude the element of reformation by making it
available even to persons convicted of serious offences.
The concept of reformatory criminal jurisprudence
derives strength from the benign and humane emotion
of forgive and forget and the ever present urge of
human race to improve itself by making amends and
corrective steps to prevent reoccurence of
misdemeanor committed earlier.
......
......
23. Viewed from a different angle, another reason for suspension of sentence takes shape. The well known maxim "actus curiae neminem gravabit"
means that the act of the Court shall prejudice none. This maxim "is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law" (per CRESSWELL J. in Freeman v. Tranah, 12 CB 406, p.415).
24. If this principle is applied to the facts of this case, it comes to light that the reason for delayed disposal of 3 CRA.590/2004 appeal is attributed to the systematical failure of inadequate Judges to deal with the huge backlog and flood of fresh filing. This failure ought not to visit anyone, including a convict in custody, with adverse consequences. True it is that certain fundamental rights of a convict suffer abridgement during custody, but one such fundamental right very much available, is the right to expeditious disposal of his appeal enshrined in Article 21 of the Constitution of India, which mandates right to speedy trial/appeal as a concomitant of right to life. Elucidating the maxim " actus curiae neminem gravabit" the Apex Court held thus:-
In Anil Rai v. State of Bihar reported in (2001) 7 SCC 318, para 3. any procedure or course of action which does not ensure a reasonable quick adjudication has been termed to be unjust. Such a course is contrary to the maxim 'actus curiae neminem gravabit' that an act of the Court shall prejudice none.
In Gaya Prasad v. Pradeep Shrivastava reported in (2001) 2 SCC 604, para 15 on the basis of the maxim, it was observed that the judicial tardiness for which our system has acquired notoriety, causes the lis to creep through the line for long, long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many-many events are bound to take place which might happen in relation to the parties as well as the subject matter of this lis. If the cause of action is to be submerged in such subsequent events on account of malady of the system it shatters the confidence of the litigant, despite the impairment already caused"
On a specific query made from the State counsel, the counsel has been unable to disclose as to whether the State has approached the Apex Court against above said decision of suspension of sentence in the case of Raghuvar Singh (supra).
Looking to the period of custody undergone by the appellant and absence of criminal antecedents and the fact that he has not misused the liberty granted of temporary suspension of sentence earlier and bleak possibility of final hearing of this appeal in the near future, this Court is inclined to grant suspension of sentence 4 CRA.590/2004 to the appellant solely on the ground of long lodgement without entering into the merits of the matter.
Accordingly, it is directed that the jail sentence of the appellant will remain under suspension subject to the verification that the amount of fine has been deposited, on the appellant furnishing bail bond of Rs. 1,00,000/- (Rs. One Lac only) with two solvent sureties each of Rs. 50,000/- to the satisfaction of CJM Gwalior, for his appearance before CJM concerned on 20th March, 2017 and all other subsequent dates as may be fixed by the CJM in this regard.
In case, the appellant is found absent on any date fixed by the concerned C.J.M then the said C.J.M shall be free to issue and execute warrant of arrest for securing his presence without first referring the matter to this Court, provided the Registry of this Court is kept informed.
Certified copy as per rules.
(Sheel Nagu) (Rohit Arya)
Judge Judge
sarathe/-