Rajasthan High Court - Jaipur
Ashok Kumar S/O Kishori Lal vs State Of Rajasthan (2024:Rj-Jp:17845) on 21 March, 2024
Author: Farjand Ali
Bench: Farjand Ali
[2024:RJ-JP:17845]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Misc 2nd Suspension Of Sentence Application
(Appeal) No. 509/2024
In
S.B. Criminal Appeal No.199/2021
Ashok Kumar S/o Kishori Lal, R/o Chandera, P.s. Kolwa, District
Jail Dausa) (At Present Confined In District Jail Dausa)
----Petitioner
Versus
State Of Rajasthan, Through P.p
----Respondent
For Petitioner(s) : Mr. Uma Shanker Pandey
For Respondent(s) : Mr. S.K. Mehla, PP
HON'BLE MR. JUSTICE FARJAND ALI
(THROUGH VIDEO CONFERENCING)
Order
21/03/2024
1. The instant second application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 24.07.2020 passed by the learned Special Judge, POCSO Act Cases, Dausa in Sessions Case No.83/2018 whereby he was convicted and sentenced as under:-
Offence Sentence Fine and default sentence punishable under Section 376(D)of the 20 years RI Rs.1,00,000/- and in default to IPC further undergo 6 months RI 376(2) (I) of 10 years RI Rs.50,000/- and in default to the IPC further undergo 3 months RI All the sentences were ordered to run concurrently.
The first application for suspension of sentence was dismissed as withdrawn by this Court vide order dated (Downloaded on 19/04/2024 at 09:01:27 PM) [2024:RJ-JP:17845] (2 of 5) [SOSA-509/2024] 10.02.2023 passed in S.B. Criminal Misc. Suspension of Sentence Application No.118/2021. Hence, the instant application for suspension of sentence.
2. It is contended on behalf of the applicant that the applicant is in custody since 14.11.2017 and the sentence of co-accused Nitin has already been suspended by this Court vide order dated 10.02.2023 passed in S.B. Criminal Misc. Suspension of Sentence Application No.958/2020 and the case of the applicant is at par to him. He placed reliance on the Petition(s) for Special Leave to Appeal (Crl.) No(s) 2893/21 titled Manohar Lal Ainani Vs. State of Rajasthan & Anr., wherein it was held vide order dated 15.11.2021 that looking to the prolonged custody period of the petitioner, bail shall be granted to him in that matter. In another landmark judgment of Satender Kumar Antil vs. Central Bureau of Investigation and Ors. reported in AIR 2022 SC 3386, the aforesaid aspect has been reiterated. Hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted.
3. Per contra, learned public prosecutor has vehemently opposed the prayer made on behalf of the accused-applicant for releasing the appellant on application for suspension of sentence.
4. Heard learned counsel for the parties and perused the material available on record.
5. It is emanating from the record that the applicant is in custody in this case since 14.11.2017 i.e. for more than six years and in view of the pendency of the cases and the statistic in this (Downloaded on 19/04/2024 at 09:01:27 PM) [2024:RJ-JP:17845] (3 of 5) [SOSA-509/2024] regard, it can be assumed that early hearing of the appeal will not be possible in near future and how much time the appeals will take to reach the point of disposal cannot be speculated today.
6. In view of the guidelines propounded by Hon'ble the Supreme Court in the case of Satender Kumar Antil (supra) on the subject of bail on the ground of long period of incarceration, the sentence of the present applicant deserves to be suspended. The relevant paragraphs of the afore-mentioned judgment are as follows:-
"41. Sub-section (2) has to be read along with Sub-section (1). The proviso to Sub-section (2) restricts the period of remand to a maximum of 15 days at a time. The second proviso prohibits an adjournment when the witnesses are in attendance except for special reasons, which are to be recorded. Certain reasons for seeking adjournment are held to be permissible. One must read this provision from the point of view of the dispensation of justice. After all, right to a fair and speedy trial is yet another facet of Article 21. Therefore, while it is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. This we hold so notwithstanding the beneficial provision Under Section 436A of the Code which stands on a different footing.
42. ......
43. A suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication. Though delay in taking up the main appeal would certainly be a factor and the benefit available Under Section 436A would also be considered, the Courts will have to see the relevant factors including the conviction rendered by the trial court. When it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the Appellant.
44. Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit conferred Under Section 436A of the Code among other factors ought to be considered for a favourable release on bail."
(Emphasis Supplied)
7. Considering the overall facts and circumstances of the case and looking to the fact that the sentence of co-accused Nitin has already been suspended by this Court and the case of the applicant is similar to the co-accused Nitin and as some of the (Downloaded on 19/04/2024 at 09:01:27 PM) [2024:RJ-JP:17845] (4 of 5) [SOSA-509/2024] questions raised by the learned counsel for the appellant deserves to be appreciated again and if the same will be decided in his favour, he may get acquittal; out of total sentence he has served more than 6 years and looking to voluminous pendency of the cases, there is no likelihood of hearing of the appeal on merits in near future, thus, while refraining from passing any comments on the niceties of the matter and the defects of the prosecution as the same may put an adverse effect on hearing of the appeal, this court is of the opinion that it is a fit case for suspending the sentence awarded to the accused appellant.
8. Accordingly, the second application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the impugned order of sentence dated 24.07.2020 passed by learned Special Judge, POCSO Act Cases, Dausa in Sessions Case No.83/2018 against the appellant-applicant Ashok Kumar S/o Kishori Lal shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail provided he executes a personal bond in the sum of Rs.50,000/-with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 17.05.2024 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-
(1) That he will appear before the trial Court in the month of January of every year till the appeal is decided.
(2) That if the applicant changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court.(Downloaded on 19/04/2024 at 09:01:27 PM)
[2024:RJ-JP:17845] (5 of 5) [SOSA-509/2024] (3) Similarly, if the sureties change their addresses, they will give in writing their changed address to the trial Court.
9. The learned trial Court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused- applicant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicant does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.
(FARJAND ALI),J Mamta/51 (Downloaded on 19/04/2024 at 09:01:27 PM) Powered by TCPDF (www.tcpdf.org)