Himachal Pradesh High Court
Tej Raj vs . State Of Hp on 4 December, 2024
Tej Raj Vs. State of HP Cr. MP(M) No.2388 of 2024 04.12.2024 Present: Mr. Lalit Kumar Sehgal, Advocate, for the applicant/petitioner.
Mr. R.S. Verma, Mr. B.N. Sharma, Mr. R.K. Negi and Mr. Diwakar Dev Sharma, Addl. Advocates General with Mr. R.P. Singh and Mr. Manish Thakur, Dy. Advocates General, for the respondent/State.
Cr.MP(M) No.2388 of 2024 For the sufficient cause shown in the application, delay in filing the present revision is condoned. Application stands disposed of.
Cr. Revision No.______ of 2024 Be registered.
Admit.
Records be called for.
List after four weeks.
Cr. MP No.______ of 2024 By way of instant application filed under Section 430 read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the applicant/petitioner is seeking suspension of sentence.
In the case at hand, the applicant was sentenced to undergo simple imprisonment for 3 years and to pay fine of Rs.5,000/- under Section 457 of the IPC and in default of payment of fine to undergo simple imprisonment for 20 days. He was further directed to undergo simple imprisonment for two years and fine of Rs.2000/- under Section 380 of IPC and in default of payment of fine to undergo SI for 10 days. The sentence undergone by the applicant is approximately two years.
Learned counsel further contended that the revision is likely to take considerable time for its disposal, as such, the instant application may be allowed and the applicant, who has already undergone approximately two years sentence, be released on bail during the pendency of the instant revision.
I have heard the learned counsel for the applicant/petitioner as well as learned Additional Advocate General and have also gone through the material available on record.
In Satender Kumar Antil vs. Central Bureau of Investigation & another, (2022) 10 Supreme Court Cases 51 after taking note of the provisions of Section 436A Cr.P.C., the Hon'ble Apex Court held as under:-
"63. Section 436A of the Code has been inserted by Act 25 of 2005. This provision has got a laudable object behind it, particularly from the point of view of granting bail. This provision draws the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the accused during the investigation, inquiry and trial. We have already explained that the word 'trial' will have to be given an expanded meaning particularly when an appeal or admission is pending. Thus, in a case where an appeal is pending for a longer time, to bring it under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision. 64. Under this provision, when a person has undergone detention for a period extending to one-
half of the maximum period of imprisonment specified for that offense, he shall be released by the court on his personal bond with or without sureties. The word 'shall' clearly denotes the mandatory compliance of this provision. We do feel that there is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the accused. We are also conscious of the fact that while taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. Once again, we have to reiterate that 'bail is the rule and jail is an exception' coupled with the principle governing the presumption of innocence. We have no doubt in our mind that this provision is a substantive one, facilitating liberty, being the core intendment of Article 21. The only caveat as furnished under the Explanation being the delay in the proceeding caused on account of the accused to be excluded....."
Section 436-A of Cr.P.C. has now been replaced by Section 479 of the BNSS, the relevant portion whereof reads as under:-
"479. Maximum period for which undertrial prisoner can be detained. - (1) Where a person has, during the period of investigation, inquiry or trial under this Sanhita of an offence under any law (now being an offence for which the punishment of death or life imprisonment has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under law, he shall be released by the Court on bail;"
Other than the aforesaid, the sentence imposed, in the case at hand, is fixed term sentence. In this respect it would be appropriate to refer to judgment dated 05.07.2024 passed in SLP(Criminal) Diary No.27298/2024, titled Bhupatji Sartajji Jabraji Thakor Vs. The State of Gujarat. The relevant extract is being reproduced hereinbelow:-
"There is a fine distinction between a sentence imposed by the trial court for a fixed term and sentence life imprisonment. If a sentence is for a fixed term, ordinarily, the appellate court may exercise its discretion to suspend the operation of the same liberally unless there are any exceptional circumstances emerging from the record to decline. However, when it is a case of life imprisonment, the only legal test which the Court should apply is to ascertain whether there is anything palpable or apparent on the face of the record on the basis of which the court can come to the conclusion that the conviction is not sustainable in law and that the convict has very fair chances of succeeding in his appeal. For applying such test, it is also not permissible for the court to undertake the exercise of re-appreciating the evidence. The emphasis is on the word "palpable" and the expression "apparent on the face of the record".
Perused the record, there are no exceptional circumstances emerging thereof necessitating declining of relief as is being sought.
The instant revision is of the year 2024 and the same is not likely to be decided in near future. Therefore, in view of the facts and circumstances of the case, since the applicant has already undergone approximately 2 years of sentence imposed upon him by the learned Trial Court and keeping in view Section 479 of BNSS and also the aforesaid judgment of the Hon'ble Supreme Court, the substantive sentence imposed upon the applicant by the Trial Court vide judgment of conviction and order of sentence, dated 11.12.2023 passed by learned JMFC, Court No.2, Paonta Sahib, District Sirmaur, H.P., shall remain suspended, till final disposal of the revision, however, subject to the applicant's furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of learned Trial Court and also subject to deposit of the fine amount, if not already deposited. On furnishing the requisite bail bonds and on depositing the fine amount, he be released forthwith, if not required in any other case, however, with the undertaking to appear before this Court as and when directed and in the event of the dismissal of the revision, the applicant/petitioner will surrender before the Court.
However, it is made clear that the applicant shall not indulge himself in the same crime and maintain good social behaviour, or else, this order shall be liable to be cancelled.
Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the same has been given only for the purpose of deciding the present application. The application stands disposed of.
(Bipin C. Negi) Judge 04th December, 2024 (Gaurav Rawat)