Himachal Pradesh High Court
Tara Chand vs . Cbi on 7 July, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
Tara Chand Vs. CBI Cr. Appeal No.467 of 2022 . 07.07.2023 Present: Mr. S.K. Banyal, Advocate, for the appellant.
Mr. A.K. Bansal, Advocate, for the respondent. Cr.MP No.673 of 2022 The present application has been filed by the applicant/appellant under Section 389 read with Section 482 of the Cr.P.C., for suspension of sentence and releasing him on bail during pendency of the appeal. Vide judgment of conviction dated 04.05.2022 and order of sentence dated 06.05.2022 passed by the learned Special Judge, CBI, Shimla, H.P., in Corruption Trial No.15-S/7 of 2016, the applicant, alongwith co-accused persons, has been sentenced to undergo rigorous imprisonment of four years and to pay a fine of Rs. 50,000/- for commission of the offence under Section 13(1)(d) of the Prevention of Corruption Act, 1988, punishable under Section 13(2) read with Section 120B, IPC and in case of default of payment of fine, to further undergo rigorous imprisonment for a term of six months, for commission of the offence under Section 419, IPC read with Section 120B of IPC, he has been sentenced to undergo rigorous imprisonment of three years and a fine of Rs.10,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a term of six months, for commission of the offence under Section 420, IPC read with Section 120B, IPC, he has been sentenced to undergo ::: Downloaded on - 07/07/2023 21:08:14 :::CIS rigorous imprisonment for three years and a fine of .
Rs.10,000/- and in default of payment of fine, to further undergo rigorous imprisonment for six months, for commission of the offence under Section 467, IPC read with Section 120B, IPC, he has been sentenced to undergo rigorous imprisonment for seven years and a fine of undergo rigorous r to Rs.10,000/- and in default of payment of fine, to further imprisonment for six months, for commission of the offence under Section 468, IPC read with Section 120B, IPC, he has been sentenced to undergo rigorous imprisonment for three years and a fine of Rs.10,000/- and in default of payment of fine, to further undergo rigorous imprisonment for six months and for commission of the offence under Section 471, IPC read with Section 120B, IPC, he has been sentenced to undergo rigorous imprisonment for three years and a fine of Rs.10,000/- and in default of payment of fine, to further undergo rigorous imprisonment for six months.
2. I have heard the learned counsel for the applicant as well as the learned counsel for the respondent and also gone through the record.
3. At this stage, it would be relevant to reproduce Section 436-A of the Code of Criminal Procedure (Cr.P.C.), which reads as under:-
::: Downloaded on - 07/07/2023 21:08:14 :::CIS"436A. Maximum period for which an undertrial prisoner can be detained. - Where a person has, .
during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death 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 that law, he shall be released by the Court on his personal bond with or without sureties:
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:
Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.
Explanation-In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded."
4. The contention of the learned counsel for the applicant is that the applicant deserves to be released on bail as he has already undergone more than half of the maximum sentence awarded to him i.e. four years and one month as he is behind the bars since 21.05.2019.
5. In Satender Kumar Antil Versus Central Bureau of Investigation & another, (2022) 10 Supreme ::: Downloaded on - 07/07/2023 21:08:14 :::CIS 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 ::: Downloaded on - 07/07/2023 21:08:14 :::CIS under the Explanation being the delay in the proceeding caused on account of the accused to be excluded....."
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6. In the instant case, the appeal is of the year 2022 and the same is not likely to be decided in near future and there is also nothing on record to suggest that the delay in deciding the appeal is attributable to the applicant/ appellant. Therefore, in view of the facts and circumstances of the case, since the applicant has already undergone more than half of the maximum sentence imposed upon him by the trial Court and keeping in view the aforesaid judgment of the Hon'ble Supreme Court, the substantive sentence imposed upon the applicant by the trial Court, vide judgment of conviction dated 04.05.2022 and order of sentence dated 06.05.2022 shall remain suspended, subject to the applicant's depositing the fine amount, if not already deposited, and furnishing personal bond in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court, within a period of one week from today with the condition that the applicant shall appear in Court as and when directed and shall surrender to serve out the sentence imposed, in case the appeal is ultimately dismissed.
7. The application stands disposed of.
::: Downloaded on - 07/07/2023 21:08:14 :::CIS Cr. Appeal No.467 of 2022.
8. Since the appeal has already been admitted, therefore, list for final hearing in due course.
( Sushil Kukreja ) Judge July 07, 2023 (VH) ::: Downloaded on - 07/07/2023 21:08:14 :::CIS