Jharkhand High Court
Ma-Hadeo Singh vs State Of Jharkhand on 6 November, 2012
Equivalent citations: 2013 (1) AJR 192
Author: D.N. Patel
Bench: D.N. Patel
IN THE HIGH COURT OF JHARKHAND AT RANCHI
I.A. No. 2151 of 2011
In
Cr. Appeal (DB) No. 1519 of 2007
Mahadeo Singh ...... Appellant
Versus
The State of Jharkhand ...... Respondent
CORAM: HON'BLE MR. JUSTICE D.N. PATEL
HON'BLE MR. JUSTICE PRASHANT KUMAR
For the Appellant : Mr. Kailash Prasad Deo, Advocate
For the State : A.P.P.
th
04/Dated: 6 November, 2012
Per D.N. Patel, J.:
1.Present interlocutory application has been preferred under Section 389 of the Code of Criminal Procedure for suspension of sentence, awarded by the learned 1st Additional Sessions Judge, Jamtara in Sessions Case No. 57 of 1995/ 32 of 2003, to the present appellant, who is original accused no. 1.
2. Having heard learned counsel for both the sides and looking to the evidences on record, it appears that there is, prima facie, a case against the present appellantaccused. As the criminal appeal is pending, we are not much analyzing the evidences on record, but, suffice it to say that the case of the prosecution is based upon several eye witnesses, who are P.W. 1, P.W. 2, P.W. 3 and P.W. 4. The depositions of these eye witnesses are getting enough corroboration by the deposition, given by P.W. 5, Dr. N.K. Lal, who has carried out postmortem of the deceased. There is head injury caused by the appellant accused. Moreover, P.W. 1, P.W. 2 and P.W. 3 are injured eye witnesses. Moreover, prayer for suspension of sentence was earlier rejected by this Court and there is no change in the circumstance, except lapse of time.
3. Learned counsel for the appellant vehemently submitted that the appellant is of advance age of 70 years and there are case and counter case against the appellant and victims.
4. It has been held by the Hon'ble Supreme Court in the case of Khilari v. State of U.P. and another reported in AIR 2008 S.C. 1882 especially in paragraph 10, which reads as under:
"10. In Anwari Begum v. Sher Mohammad and Anr. [2005 (7) S.C.C. 326] it was, inter alia, observed as follows:
"7. Even on a cursory perusal the High Court's order shows complete nonapplication of mind. Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be 2 avoided by the Court while passing orders on bail applications, yet a court dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is not necessary. The court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a mater of course.
8.There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are :
1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
3. Prima facie satisfaction of the Court in support of the charge.
Any order dehors of such reasons suffers from non application of mind as was noted by this Court, in Ram Govind Upadhyay v. Sudarshan Singh and Ors. {(2002) 3 S.C.C. 598}; Puran etc. v. Rambilas and Anr. etc. {(2001)6 SCC 338)} and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr. [JT 2004 (3) SC 442]."
(Emphasis supplied)
5. It has been held by the Hon'ble Supreme Court in the case of Ramji Prasad v. Rattan Kumar Jaiswal and Anr., as reported in (2002) 9 SCC 366, in paragraph no. 3, as under:
"3. Absolutely no reason is shown by the learned Single Judge for adopting this exceptional course in a case where an accused was found guilty by the trial court under Section 302 of the Indian Penal Code. The 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."
(Emphasis supplied)
6. It has been held by the Hon'ble Supreme Court in the case of State of Haryana v. Hasmat, as reported in (2004) 6 SCC 175, in paragraph nos. 6 to 9, as under:
"6. 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. If he is in confinement, the said court can direct that he be released on bail 3 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.
7. The appellate court is dutybound 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 period the accused respondent was granted parole.
8. The learned Sessions Judge, Gurgaon by a judgment dated 24102001 had found the accused respondent guilty. Criminal Appeal No. 100DB of 2002 was filed by the respondent. The fact that during the pendency of the appeal the accused respondent was on parole goes to show that initially the accusedrespondent was not given the benefit of suspension of execution of sentence. The mere fact that during the period of parole the accused has not misused the 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 was 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.
9. In Vijay Kumar v. Narendra and Ramji Prasad v. Rattan Kumar Jaiswal it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. The impugned order of the High Court does not meet the requirement. In Vijay Kumar case it was held 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 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. These aspects have not been considered by the High Court, which passing the impugned order."
(Emphasis supplied)
7. In view of the aforesaid decisions, the contention of the learned counsel for the appellant that the appellant is of 70 years of age and, therefore, the order of sentence must be suspended, is not accepted by this Court. It should be kept in mind that it all depends upon the facts and circumstances of each and every case.
4
8. In view of the aforesaid facts and looking to the role played by the appellantaccused and looking to the gravity of offence, quantum of punishment and the manner in which the present appellant is involved in the offence, as alleged by the prosecution, we are not inclined to suspend the sentence awarded by the trial court to the present appellantaccused. Hence, his prayer for suspension is rejected.
9. I.A. No. 2151 of 2011 is, accordingly, dismissed.
(D.N. Patel, J.) (Prashant Kumar, J.) Ajay/