Gujarat High Court
Rajeshbhai Keshavbhai Parmar vs State Of Gujarat on 25 September, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, A.J. Shastri
R/CR.MA/14865/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO. 14865 of 2017
In
CRIMINAL APPEAL NO. 835 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
==========================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
RAJESHBHAI KESHAVBHAI PARMAR ....Applicant
Versus
STATE OF GUJARAT ....Respondent
==========================================================
Appearance:
MR SV RAJU, SENIOR ADVOCATE with MR BHADRISH S RAJU, MS BHAVINI H JANI,
ADVOCATES for the Applicant
MR JK SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent
==========================================================
CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 25/09/2017
Page 1 of 43
HC-NIC Page 1 of 43 Created On Mon Sep 25 23:16:51 IST 2017
R/CR.MA/14865/2017 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)
1. Rule. Mr.J.K.Shah, learned Additional Public Prosecutor, waives service of notice of Rule on behalf of the respondent - State of Gujarat.
2. This application under Section 389(1) of the Code of Criminal Procedure, 1973 ("the Code"), has been preferred by the applicant, who is the original accused No.4, for the suspension of the sentence imposed upon him by the learned Sessions Judge, Anand, by the judgment and order dated 10.03.2016, passed in Sessions Case No.71 of 2012, pending the decision of Criminal Appeal No.835 of 2016, preferred by him along with three coaccused persons. By the above mentioned judgment, the applicant has been convicted for the offences punishable under Section 302 read with Section 120B of the Indian Penal Code, 1860, and sentenced to undergo life imprisonment.
3. Briefly stated, the case of the prosecution is Page 2 of 43 HC-NIC Page 2 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT that the accused persons, in collusion with each other hatched a conspiracy, as a result of which, on 06.05.2011, at 8:30 am, when the deceased Prakashchandra Ambalal Shah was going from his house towards Vasad Railway Station and climbing the path near the sewer, on the southern side of Platform No.1, accused No.1 inflicted a blow with an iron pipe on his leg. Accused No.3 showed the iron pipe to accused No.2 and also showed the deceased coming there. Accused No.1 took accused Nos.2 and 3 to the place of offence on the motorcycle belonging to the present applicant. In short, as per the case of the prosecution, the present applicant had hatched a conspiracy with the other accused, nursing a grudge in his mind, as the deceased had compelled his daughter to take a divorce from the applicant, who had earlier had a love marriage with her. Nursing a grudge regarding this, the applicant had conspired to kill the deceased and to this end, had given money and his motorcycle to accused Nos.1, 2 and 3, who inflicted blows with an iron pipe upon the Page 3 of 43 HC-NIC Page 3 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT deceased and escaped from the spot on the motorcycle of the present applicant. The deceased was taken to the hospital but died before he could reach there.
4. After the trial was over and the judgment of conviction pronounced, the applicant was arrested on 10.03.2016. It is stated in the application that the applicant is in custody for the last about one year.
5. Mr.S.V.Raju, learned Senior Advocate appearing with Ms.Bhavini Jani, learned advocate, for the applicant, has submitted that the socalled incident is alleged to have taken place about five years ago. The applicant was on bail pending trial and has not misused his liberty in any manner, or tried to win over any witnesses. There are, therefore, no chances of his misusing liberty, if released on bail during the pendency of the criminal appeal.
6. It is further submitted that looking to the pendency of criminal appeals before this Court, there is hardly any likelihood that the criminal Page 4 of 43 HC-NIC Page 4 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT appeal filed by the present applicant would be heard finally in the near future. Considering the totality of the facts and circumstances of the case, the sentence imposed upon the applicant may be suspended pending the final hearing of the appeal.
7. It is next submitted that even on merits, the applicant has a strong case in appeal and is likely to be acquitted. There is no evidence on record regarding the conspiracy allegedly hatched by him. That being the case, to continue to keep the applicant in custody would cause tremendous prejudice to him as no case is made out against him.
8. It is submitted that the medical evidence does not support the prosecution theory that the case falls under the provisions of Section 302 of the IPC. As per the postmortem report, the cause of death was kept reserved till the receipt of the histopathological report of the viscera of the deceased. After the histopathological report was received, the cause of death has been described Page 5 of 43 HC-NIC Page 5 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT as "cardiac arrest secondary to ischemic heart disease following fright of injury". Thus, the injury allegedly caused by the iron pipe on the body of the deceased is not the cause of death. The deceased died due to cardiac arrest which can be caused by any reason, therefore, there is no link between the allegations against the applicant and the cause of death.
9. It is submitted that the applicant is not stated to have been present at the time of the incident, therefore his connection with the incident is not made out. The conspiracy theory has also not been proved and merely because his motorcycle was recovered would, at the most, raise a suspicion but cannot be regarded as conclusive evidence against the applicant. Moreover, there is no evidence that the motorcycle was used in the incident and even the Panch witness has turned hostile.
10. It is submitted that merely because it is alleged that the applicant had a motive to do away with the deceased, who was instrumental in Page 6 of 43 HC-NIC Page 6 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT getting his daughter divorced and breaking up the lovemarriage of the applicant and his wife, cannot be a factor to link him to the incident.
11. It is submitted that primafacie, the judgment of the Trial Court is not sustainable in law. It is reiterated that as the appeal is most likely to result in acquittal, it would be appropriate to suspend the sentence imposed upon the applicant.
12. It is next stated that the Trial Court has believed the evidence of Bhalabhai Chandubhai Parmar, PW17, who is stated to be an independent witness. However, this witness can be said to be an interested one as he was known to the deceased. Had there been any truth to the angle of conspiracy and agreement between the parties to kill the deceased, then the attack would have been made with more dangerous weapons and not with an iron pipe. Further, the blow would have been inflicted on a vital part of the body of the deceased and not on the foot and shoulder.
Page 7 of 43
HC-NIC Page 7 of 43 Created On Mon Sep 25 23:16:51 IST 2017
R/CR.MA/14865/2017 JUDGMENT
13. It is submitted that the applicant had no motive to allegedly conspire to commit the murder of the deceased and only because he was married to the daughter of the deceased is not a sufficient ground to involve him in the offence.
14. In support of the above submissions, learned Senior Counsel has relied upon several judgments that would be dealt with at the appropriate stage.
15. On the other hand, Mr.J.K.Shah, learned Additional Public Prosecutor, has strongly opposed the prayer made by the applicant for suspension of the sentence. Apart from filing written objections against the release of the applicant, learned Additional Public Prosecutor has submitted that, in the present case, the applicant is alleged to have hatched a conspiracy with accused Nos.1 to 3 to kill the deceased, nursing a grudge against him as the deceased was instrumental in getting his daughter divorced from the applicant, who had had a lovemarriage with her. In order to Page 8 of 43 HC-NIC Page 8 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT eliminate the deceased, the applicant had given money to accused Nos.1 to 3 and had also given his motorcycle, which was used by the other accused to escape from the scene of offence after committing the crime. Hence, the applicant may not have been physically present at the spot when the incident took place, however, he is a conspirator and abettor and his presence is not required for him to be liable for the said offence. The motorcycle of the applicant has been recovered and it is at his behest that the crime was committed.
16. It is further submitted that there is a difference between bail pending trial and suspension of sentence post trial. In bail pending trial, a factor of innocence is attached. However, after a judgment of conviction is pronounced after fullfledged trial, the presumption of innocence goes and different criteria are to be followed. In the present case, the prosecution, primafacie, has a good case and not the other way round. The Trial Court has considered every aspect of the Page 9 of 43 HC-NIC Page 9 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT matter and recorded the conviction of the applicant as it found that the applicant is connected with the crime.
17. The contention that the injuries on the person of the deceased were not sufficient to cause death in the normal course but the deceased died due to cardiac arrest, does not detract from the role played by the applicant. The death would not have occurred had there not been any blow. It is clearly stated in the cause of death that the heart attack was brought about by the shock due to the injuries received. Whether the appellate Court would maintain the judgment of conviction under Section 302, or not, is a question of time. However, to argue that the sentence of the applicant ought to be suspended because the appeal would take time is not a good ground for the suspension of sentence when the involvement of the applicant clearly emerges from the material on record.
18. Lastly, it is submitted that earlier, as well, the applicant had moved an application, being Criminal Miscellaneous Application No.22494 of Page 10 of 43 HC-NIC Page 10 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT 2016, for suspension of sentence which was not pressed, as recorded in the order dated 15.09.2016, passed by this Court, with liberty to prefer an application upon completion of six months or after R and P is received, whichever is earlier. The circumstances have not changed, therefore, only the passage of time is not sufficient for the filing of the present application with the same prayer.
19. Learned Additional Public Prosecutor has also relied upon certain judgments which would be discussed later.
20. Insofar as this submission of the learned Additional Public Prosecutor is concerned, we find that this Court had granted liberty to the applicant vide order dated 15.09.2016 to approach the Court upon completion of six months or after R and P is received, whichever is earlier. As six months have elapsed, the applicant has approached this Court, therefore, he has only done so in view of the liberty granted by this Court and the aspect that there Page 11 of 43 HC-NIC Page 11 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT is no change in circumstance would not come in the way of the applicant in filing the present application.
21. In the background of the above rival submissions, it would be appropriate to deal with the judicial pronouncements pressed into service by both sides.
22. Mr.S.V.Raju, learned Senior Counsel has referred to the judgment in the case of State (Government of NCT of Delhi) v. Nitin Gunwant Shah - (2016)1 SCC 472, on the point of conspiracy. It has been submitted on the basis of this judgment that where conspiracy is alleged, proof of meeting of minds is essential and mere knowledge or discussion of facts would not be sufficient. In this regard, reliance has been placed upon the following paragraphs of the judgment.
"13. Another view which excludes the prosecution story is the testimony of Veena (PW1) wife of deceased Lalit Suneja. She not only deposed that the signature on the complaint Ext. PW15/A1 was not of the Page 12 of 43 HC-NIC Page 12 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT deceased, but she further deposed that there never existed any enmity between Nitin Shah and her husband, or that any complaint apprehending threat was filed by her husband. PW1 further deposed that her husband was having his business but the employeremployee relationship never existed between her deceased husband and Nitin Shah.
14. The trial court relied on the two applications filed by accused Nitin Shah, one under Section 340 read with Section 195 of Cr.P.C., and the other under Section 317(2) of Cr.P.C., in reaching its judgment.
The High Court rightly rejected the aforesaid two applications on the ground that the same were not proved by the prosecution. The prosecution was already suffering a weak case, over and above the nonproving of Ext. PW15/A1. The prosecution failed to prove other corroborative circumstances which included nonrecovery of the weapon used in the offence and the alleged involvement of the car and motor bike. The prosecution could not have shored its boat by merely proving that the accused were present in Delhi when the offence occurred. The vital links in the prosecution story being already missing, the prosecution could not prove a chain of events leading to a sole conclusion that the accused were Page 13 of 43 HC-NIC Page 13 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT guilty beyond reasonable doubt.
... ... ...
17. The prosecution relies upon the existence of criminal conspiracy, which resulted into the death of Lalit Suneja. This Court has time and again laid down the ingredients to be made out by the prosecution to prove criminal conspiracy. It is now, however, well settled that a conspiracy ordinarily is hatched in secrecy. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that meeting of mind is essential; mere knowledge or discussion would not be sufficient. Yet, the prosecution has failed to prove the evidence which establishes any prior meeting of mind of the accused. The prosecution merely proved that all the accused were present in Delhi on the date of occurrence, and that the alleged motorbike and the car used in incident belonged to respondent No.2, Om Prakash Srivastava alias Babloo. The High Court rightly dismissed this argument, as the involvement of the said vehicles in commission of the crime were never proved. Neither any prior meeting Page 14 of 43 HC-NIC Page 14 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT of mind of the accused was proved, nor any action, individually or in concert, was proved against any of the accused. Needless to say that the entire foundation of the prosecution story was never established."
23. Another judgment relied upon by the learned Senior Advocate is in the case of State of Karnataka v. L.Muniswamy And Others - (1977)2 SCC 699. In that case, the Supreme Court was dealing with the provisions of Section 482 of the Code and the prayer was to quash the proceedings pending before the Sessions Judge on the ground of insufficiency of evidence. Learned Senior Counsel has emphasised Paragraph8 of the judgment, which is as below:
"8. Let us then turn to the facts of the case to see, whether the High Court was justified in holding that the proceedings against the respondents ought to be quashed in order to prevent abuse of the process of the court and in order to secure the ends of justice. We asked the State counsel time and again to point out any data or material on the basis of which a reasonable likelihood of the respondents being convicted of any offence in connection with the attempted Page 15 of 43 HC-NIC Page 15 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT murder of the complainant could be predicated. A few bits here and a few bits there on which the prosecution proposes to rely are woefully inadequate for connecting the respondents with the crime, howsoever, skilfully one may attempt to weave those bits into a presentable whole. There is no material on the record on which any tribunal could reason ably convict the respondents for any offence connected with the assault on the complainant. It is undisputed that the respondents were nowhere near the scene of offence at the time of the assault. What is alleged against them is, that they had conspired to commit that assault. This, we think, is one of those cases in which a charge of conspiracy is hit upon for the mere reason that evidence of direct involvement of the accused is lacking. we have been taken through the statements recorded by the police during the course of investigation and the other material. The worst that can be said against the respondents on the basis thereof is that they used to meet one another frequently after the dismissal of accused No. 1 and prior to the commission of the assault on the complainant. Why they met, what they said, and whether they held any deliberations at all, are matters on which no witness has said a word. In the Page 16 of 43 HC-NIC Page 16 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT circumstances, it would be a sheer waste of public time and money to permit the proceedings to continue against the respondents. The High Court was therefore justified in holding that for meeting the ends of justice the proceedings against the respondents ought to be quashed."
24. On the point that mere suspicion of motive is not a sufficient ground for the framing of the Charge, learned Senior Counsel has relied upon the judgment in the case of State of U.P. Through Central Bureau of Investigation v. Dr.Sanjay Singh And Another - 1994 Supp.(2) SCC 707. The Paragraphs relied upon by him are as below:
"16. At the threshold, we may state that the circumstances placed on record are not at all sufficient to make out a case of conspiracy. The submission made by the learned Solicitor General that the circumstances surrounding the case make out a case of conspiracy is not acceptable. The decisions cited in support of the above submission cannot be availed of since on the facts the case of conspiracy has to fail for lack of sufficient evidence.
Page 17 of 43
HC-NIC Page 17 of 43 Created On Mon Sep 25 23:16:51 IST 2017
R/CR.MA/14865/2017 JUDGMENT
17. The circumstantial evidence even if accepted in its entirety, as pointed out by the courts below creates only a suspicion of motive. Needless to point Out that the motive which induces a man to do any particular act is known to him and to him alone.
18. At the highest, the prosecution can only suggest from the circumstances what is or may be the motive for any particular act. However, motive is not a sine qua non for bringing the offence of murder or of any crime home to the accused. At the same time the absence of ascertainable motive comes to nothing, if the crime is proved to have been committed by a sane person but to eke out a case by proof of a motive alone that too suspicion of motive apparently tending towards any possible crime, is not only a very unsatisfactory but also a dangerous process, because circumstances do not always lead to particular and definite inferences and the inferences themselves may sometimes be erroneous."
25. Another judgment pressed into service on the aspect of criminal conspiracy is in the case of P.K.Narayanan v. State of Kerala - (1995)1 SCC 142, wherein it has been held as below: Page 18 of 43
HC-NIC Page 18 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT "9. It is pertinent to note that the accused were also charged under Section 120 B read with Section 201 alleging that in pursuance of the criminal conspiracy the accused tampered with the evidence of murder after the occurrence to screen the offenders and that a false information was given to the police. Both the courts below have held that there is no material whatsoever to establish the same. It can thus been that there is no material whatsoever to show that the accused who are alleged to have conspired did anything to cover up the crime. Therefore the only evidence relied upon by the prosecution in proof of the conspiracy is with reference to the few above mentioned circumstances prior to the murder and the only other subsequent circumstance relied upon by the prosecution is the conduct of A1 in not consoling the father of the deceased. An offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence.
10. The ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means an Page 19 of 43 HC-NIC Page 19 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT act which by itself may not be illegal.
Therefore the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. But if those circumstances are compatible also with the innocence of the accused persons then it cannot be held that the prosecution has successfully established its case. Even if some acts are proved to have been committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it cannot be said that those circumstances are incapable of any other reasonable interpretation."
Page 20 of 43
HC-NIC Page 20 of 43 Created On Mon Sep 25 23:16:51 IST 2017
R/CR.MA/14865/2017 JUDGMENT
26. On the aspect of motive and last seen together, learned Senior Counsel has placed reliance upon a judgment of the Apex Court in the case of Saju v. State of Kerala - (2001)1 SCC 378. This is also a case where the ingredients of Section 120B criminal conspiracy, coupled with circumstantial evidence, motive and last seen together, have been discussed by the Supreme Court. Having discussed the facts of that particular case, the Supreme Court held, on those facts, that the circumstances present do not conclusively indicate the hatching of a criminal conspiracy, hence, the appellant therein could not be convicted under Section 120B. It has also been held that motive, by itself, cannot be a proof of conspiracy.
27. Much reliance has been placed by the learned Senior Counsel on the judgment of Kashmira Singh v. The State of Punjab - (1977)4 SCC 291, wherein the Supreme Court has held as below:
"2. The appellant contends in this application that pending the hearing of the appeal he should be released on bail. Now, Page 21 of 43 HC-NIC Page 21 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT the practice in this Court as also in many of the High Courts has been not to release on bail a person who has been sentenced to life imprisonment for an offence under section 302 of the Indian penal Code. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice. The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, be would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail Page 22 of 43 HC-NIC Page 22 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT for a period of five or six years for an offence which is ultimates found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to unjustified? Would it be just at all for the Court to tell a person: "We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?" What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable Page 23 of 43 HC-NIC Page 23 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence."
28. Per contra, Mr.J.K.Shah, learned Additional Public Prosecutor, has relied upon the judgment of the Supreme Court in the case of State of Punjab v. Deepak Mattu - (2007)11 SCC 319, wherein the Supreme Court has held as below:
"7. While passing the said order, the High Court did not assign any special reasons. Possible delay in disposal of the appeal and there are arguable points by itself may not be sufficient to grant suspension of a sentence. The High Court while passing the said order merely noticed some points which could be raised in the appeal. The grounds so taken do not suggest that the respondent was proceeded against by the State, malafide or any bad faith. In K.C. Sareen (2001)6 SCC 584 this Court opined: (SCC pp.58990, paras 1112) "11. The legal position, therefore, is this: though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Page 24 of 43 HC-NIC Page 24 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT Section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal in challenge of the conviction the court should not suspend the operation of the order of conviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. It is in the light of the above legal position that we have to examine the question as to what should be the position when a public servant is convicted of an offence under the PC Act. No doubt when the appellate court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could heard soon after the filing of the appeal. But suspension of conviction of the offence under the PC Act, dehors the sentence of imprisonment as a sequel thereto, is a different matter.
12. Corruption by public servants has now reached a monstrous dimension in India. Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of the public offices, through strong legislative, executive as well as judicial exercises the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity. Proliferation of corrupt public servants could garner momentum to cripple the social order if Page 25 of 43 HC-NIC Page 25 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT such men are allowed to continue to manage and operate public institutions. When a public servant is found guilty of corruption after a judicial adjudicatory process conducted by a court of law, judiciousness demands that he should be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge and to go into the issues and findings made against such public servants once again should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and to continue to do official acts until he is judicially absolved from such findings by reason of suspension of the order of conviction, it is public interest which suffers and sometimes, even irreparably. When a public servant who is convicted of corruption is allowed to continue to hold public office, it would impair the morale of the other persons manning such office, and consequently that would erode the already shrunk confidence of the people in such public institutions besides demoralising the other honest public servants who would either be the colleagues or subordinates of the convicted person. If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction, the fallout would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only (sic) public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level. It is a different matter if a corrupt public officer Page 26 of 43 HC-NIC Page 26 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT could continue to hold such public office even without the help of a court order suspending the conviction.""
29. Learned Senior Advocate for the applicant has sought to distinguish the above judgment by stating that that was a case of conviction in a corruption matter and was a case of suspension of conviction and not of sentence. However, learned Additional Public Prosecutor has pointed out that he has relied upon Paragraph7 of the judgment, quoted above, which pertains to the principles regarding suspension of the sentence and not of conviction.
30. Another judgment relied upon by the learned Additional Public Prosecutor is in the case of Sidhartha Vashisht Alias Manu Sharma v. State (NCT of Delhi) - (2008)5 SCC 230 (Jessica Lal murder case), wherein after noticing and discussing the case of Kashmira Singh v. The State of Punjab (supra), extracted hereinabove, the Supreme Court held as below:
"29. The other consideration, however, is equally important and relevant. When a person is convicted by an appellate Court, Page 27 of 43 HC-NIC Page 27 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT he cannot be said to be an 'innocent person' until the final decision is recorded by the superior Court in his favour.
30. Mr. Gopal Subramanyam, learned Addl. Solicitor General invited our attention to Akhilesh Kumar Sinha v. State of Bihar, (2000) 6 SCC 461, Vijay Kumar v. Narendra & Ors., (2002) 9 SCC 364 : JT 2004 Supp (1) SC 60, Ramji Prasad v. Rattan Kumar Jaiswal & Anr., (2002) 9 SCC 366 : JT 2002 (7) SC 477, State of Haryana v. Hasmat, (2004) 6 SCC 175 : JT 2004 (6) SC 6, Kishori Lal v. Rupa & Ors., (2004) 7 SCC 638 : JT 2004 (8) SC 317 and State of Maharashtra v. Madhukar Wamanrao Smarth, (2008) 4 SCALE 412 : JT 2008 (4) SC 461. 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 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 Page 28 of 43 HC-NIC Page 28 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT 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, this Court stated;
"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 Page 29 of 43 HC-NIC Page 29 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT and grant of bail. What really necessary is to consider whether reasons exist to suspend execution of the sentence and grant of bail.
33. On the facts and in the circumstances of the case, in our considered opinion, this is not a fit case to exercise power under Section 389 of the Code. Though the trial Court has acquitted the applicant accused for the offences with which he was charged, the High Court reversed the order of acquittal and convicted him under Section 302, IPC and ordered him to undergo rigorous imprisonment for life. Being aggrieved by the said order, he has filed an appeal which has been admitted, is already on board and awaits final hearing. Hence, within 'measurable distance of time' the appeal is likely to be heard. Keeping in view the seriousness of offence, the manner in which the crime was said to have been committed and the gravity of offence, we are of the view that no case has been made out by the applicant appellant for suspension of sentence and grant of bail. The application deserves to be dismissed and is accordingly dismissed."
31. In Kishori Lal v. Rupa And Others - (2004)7 SCC 638, also relied upon by the learned Additional Public Prosecutor, the Supreme Court Page 30 of 43 HC-NIC Page 30 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT has discussed the powers of the appellate Court regarding suspension of sentence under Section 389(1) of the Code pending appeal and the release of the appellant on bail as well as the ingredients and requirements for the above exercise by the High Court. The relevant extract of the judgment is as below:
"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. 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 dutybound to objectively assess the matter and to record Page 31 of 43 HC-NIC Page 31 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT 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 accusedrespondents 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 looses 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.
7. A similar question was examined in State of Haryana Vs. Hasmat (JT 2004 (6) SC
6).Page 32 of 43
HC-NIC Page 32 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT
8. In Vijay Kumar V. Narendra and others (2002 (9) SCC 364) and Ramji Prasad V. Rattan Kumar Jaiswal and another (2002 (9) SCC 366), 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's 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, while passing the impugned order.
9. The order directing suspension of sentence and grant of bail is clearly unsustainable and is set aside. Learned counsel for the accusedrespondents stated that a fresh application shall be moved. In case it is done, the High Court, it goes without saying, shall consider the matter in Page 33 of 43 HC-NIC Page 33 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT accordance with law, in its proper perspective. We express no opinion in that regard."
32. In Ramji Prasad v. Rattan Kumar Jaiswal And Another - (2002)9 SCC 366, the Supreme Court has held as below:
"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."
33. Reliance has also been placed by the learned Additional Public Prosecutor upon the judgment of the Supreme Court in Vijay Kumar v. Narendra And Others - (2002)9 SCC 364, wherein the Supreme Court has held as under:
"10. On perusal of the record and on consideration of the submissions made by the learned counsel appearing for the parties, we are of the view that in the context of the facts and circumstances of the case, the Page 34 of 43 HC-NIC Page 34 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT High Court was in error in passing the order releasing the respondents on bail. The High Court has neither given any reason nor has indicated any exceptional circumstance for granting bail to the respondents. In the above circumstances, it is difficult for us to even surmise the circumstance which prompted the learned single judge to consider the accused persons to be entitled to the discretionary relief of bail pending the appeal. The principle is well settled that in considering the prayer for bail in a case involving serious offence like murder, punishable under Section 302 IPC, the court should consider the relevant factors like the nature of the 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. Our attention has not been drawn to any material, which would show that the learned single judge took into consideration the relevant factors while passing the bail order. We refrain ourselves from making any observation touching on merits of the case lest it may prejudice any of the parties. Suffice it to state that we do not consider this a fit case for grant of bail to the respondents during pendency of Page 35 of 43 HC-NIC Page 35 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT the appeal filed by them."
34. In the background of the above factual and legal position, we may now examine whether the prayer made by the applicant for suspension of the sentence, pending appeal, deserves to be granted, or not.
35. Though we have been taken through the evidence in detail and submissions have also been made on merits, we are conscious of the fact that the appeal preferred by the applicant is yet to be finally adjudicated. We, therefore, would not venture to proffer any findings on the merits of the matter, though certain submissions made on both sides are such as would urge us to do so.
36. Insofar as the judgments referred to by learned Senior Counsel on behalf of the applicant are concerned, apart from the judgment in the case of Kashmira Singh v. The State of Punjab (supra), all the other judgments, except that in the case of State of Karnataka v. L.Muniswamy And Others (supra) which pertains to Section 482 of the Code, are final judgments Page 36 of 43 HC-NIC Page 36 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT in appeal. Insofar as the applicant is concerned, the appeal filed by him is yet to be finally heard and decided. The stage at which the above judgments have been rendered has not arrived in this case so far.
37. In State (Government of NCT of Delhi) v. Nitin Gunwant Shah (supra), the elements of criminal conspiracy have been discussed. This judgment arose from an Appeal for Special Leave against the judgment and order of the High Court of Delhi, wherein the High Court allowed the criminal appeals filed by the respondents and acquitted them both. Though the principles of law enunciated by the Supreme Court in this judgment cannot be disputed, however, this Court cannot hold, at this stage, whether the ingredients of conspiracy, insofar as the present applicant is concerned, are present, or not. To do so would amount to prejudging the matter even before the final adjudication of the appeal, which would not be appropriate. Such findings are best left to the Court hearing the appeal.
Page 37 of 43
HC-NIC Page 37 of 43 Created On Mon Sep 25 23:16:51 IST 2017
R/CR.MA/14865/2017 JUDGMENT
38. The same is the case in P.K.Narayanan v. State of Kerala (supra), which is also a judgment wherein the Supreme Court has dealt with the ingredients of criminal conspiracy and motive in its appellate jurisdiction.
39. The judgment in the case of State of Karnataka v. L.Muniswamy And Others (supra), has been rendered in a case under Section 482 of the Code wherein the issue was whether the inherent power to quash the proceedings pending before the learned Sessions Judge on the ground of inadequacy of evidence can be exercised, or not. On the facts of that case, it was held by the Supreme Court that the High Court was justified in holding that the proceedings against the respondent therein ought to be quashed in order to prevent the abuse of the process of the Court and in order to secure the ends of justice. We are unable to assume that the ingredients required in a case of quashing can be applied in a case of suspension of sentence, where several other factors have to be looked into and taken note of by the Court, by objectively dealing Page 38 of 43 HC-NIC Page 38 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT with the issue whether the applicant should be released on bail pending trial, or not.
40. The case of State of U.P. Through Central Bureau of Investigation v. Dr.Sanjay Singh And Another (supra) is also one wherein the final adjudication had resulted. Though the principles of law enunciated in the said judgment regarding criminal conspiracy, on the facts of that case, cannot be disputed, however, it is not for us to hold, at this stage, whether criminal conspiracy alleged against the accused herein has been proved, or not. That is an issue required to be dealt with in the appeal and no finding can be given at this stage.
41. Learned Senior Counsel has placed great emphasis on the judgment of the Supreme Court in the case of Kashmira Singh v. The State of Punjab (supra), wherein the situation regarding the wait for the final decision of the appeal filed by an accused person, who has served his imprisonment or a major part thereof, has been highlighted, especially from the angle where, Page 39 of 43 HC-NIC Page 39 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT ultimately, such accused person may be acquitted. This judgment, rendered by two Honourable Judges of the Supreme Court in the year 1977, has been discussed at length in a relatively recent judgment rendered by two Honourable Judges of the Apex Court in the year 2008, in the case of Sidhartha Vashisht Alias Manu Sharma v. State (NCT of Delhi). The relevant extract of this judgment has already been reproduced hereinabove. In this case, their Lordships have held, after extracting Paragraph3 of the judgment in the case of Kashmira Singh, that the other consideration which is equally important and relevant is that, when a person is convicted by the appellate Court, he cannot be said to be an innocent person until the final decision is recorded by the superior Court in his favour. The aspect that the applicant has remained on bail pending appeal and has not misused his liberty, or that some time may elapse before the final adjudication of the appeal are, in our view, not very convincing grounds for the suspension of Page 40 of 43 HC-NIC Page 40 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT sentence. The allegations against the applicant are regarding the commission of a serious offence such as conspiracy and murder, punishable under Section 302 IPC. Factors such as nature and gravity of the offence, the manner in which the crime is alleged to have been committed are equally important and are required to be looked into while taking a decision regarding suspension of the sentence.
42. Though it has been argued extensively before us that there is no evidence regarding the involvement of the applicant in the conspiracy to kill the deceased and that the recovery of the motorcycle belonging to him, on which the other accused persons escaped, cannot be a factor to rope in the applicant in the commission of the offence, however, we are of the considered view that after considering these aspects, we prima facie find the involvement of the applicant. The niceties of appreciation of evidence, are best left to be done during the final hearing of the appeal. Whether the appellate Court would arrive at a conclusion Page 41 of 43 HC-NIC Page 41 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT that the applicant is required to be convicted under Section 302 IPC, or for any other, or lesser, offence, cannot be prejudged by us at this stage. Suffice it to say that from the material on record, we are prima facie unable to agree with the learned Senior Counsel that the involvement of the applicant is not made out at all. The aspect of motive would also be dealt with in the appeal, at the appropriate stage. The existence or lack of motive is not a factor we would go into while deciding an application under Section 389(1) of the Code.
43. In two pronouncements, namely Ramji Prasad v. Rattan Kumar Jaiswal And Another and Vijay Kumar v. Narendra And Others (supra), the Supreme Court has held that the normal practice in cases such as murder is not to suspend the sentence and it is only in exceptional cases that the benefit of suspension of sentence ought to be granted. From the evidence on record, we cannot conclude that the present is such an exceptional case where the power of suspension of sentence is required, or deserves, to be Page 42 of 43 HC-NIC Page 42 of 43 Created On Mon Sep 25 23:16:51 IST 2017 R/CR.MA/14865/2017 JUDGMENT exercised in favour of the applicant.
44. In view of the above conclusion, we find no merit in the application, which stands rejected. Rule is discharged.
45. The observations made by us are purely prima facie in nature and would not bind the Court deciding the appeal filed by the applicant.
46. The applicant is at liberty to move the Court for expeditious hearing of the Criminal Appeal after the elapse of a reasonable period of time.
(SMT. ABHILASHA KUMARI, J.) (A.J. SHASTRI, J.) sunil Page 43 of 43 HC-NIC Page 43 of 43 Created On Mon Sep 25 23:16:51 IST 2017