Gujarat High Court
Atul Indravadan Vaidh Thro.His Wife ... vs State Of Gujarat & on 27 June, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, A.J. Shastri
R/CR.MA/15020/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO. 15020 of 2017
In
CRIMINAL APPEAL NO. 1177 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
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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 ?
==========================================================
ATUL INDRAVADAN VAIDH THRO.HIS WIFE VAIDH DIPIKABEN ATULBHAI ....Applicant
Versus
STATE OF GUJARAT & 1....Respondent(s)
==========================================================
Appearance:
MR JAL S UNWALLA, ADVOCATE FOR MR. RAHUL R DHOLAKIA, ADVOCATE for the
Applicant
MR JK SHAH, ADDITIONAL PUBLIC PROSECUTOR for Respondent No.1
MR RC KODEKAR, SPECIAL PUBLIC PROSECUTOR for Respondent No.2
==========================================================
CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
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Date : 27/06/2017
ORAL JUDGMENT
(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI)
1. Rule. Mr.J.K.Shah, learned Additional Public Prosecutor and Mr.R.C.Kodekar, learned Special Public Prosecutor, waive service of notice of Rule for respondents Nos.1 and 2, respectively.
2. The present application under Section 389 of the Code of Criminal Procedure, 1973 ("the Code") has been preferred by the applicant, through his wife, with a prayer to suspend the judgment and order of conviction dated 02.06.2016, and the order of sentence dated 17.06.2016, passed by the learned Special Judge, Designated Court for Speedy Trial of Riot Cases (Gulbarg Society), Ahmedabad in Sessions Case No.152 of 2002 & allied matters, more specifically, Sessions Case No.195 of 2009, pending the final disposal of the criminal appeal, on terms and conditions as may be deemed fit by the Court, and to enlarge him on bail.
3. The applicant, along with two coaccused persons Page 2 of 43 HC-NIC Page 2 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT (accused Nos.47 and 50), has filed Criminal Appeal No.1177 of 2016, against the above mentioned judgment and order of conviction and sentence, which has been admitted on 04.10.2016.
4. The matter arises out of the incident that took place on 28.02.2002, referred to as the "Gulbarg Society Massacre Case", wherein it is alleged by the prosecution that a mob, initially of about five to seven thousand persons belonging to the majority community, the strength of which swelled to fifteen to twentyfive thousand, forcibly entered Gulbarg Society, a residential area, by breaking open the front gate and rear compound wall and caused mayhem, as a result of which sixtynine persons of the minority community lost their lives and extreme damage was caused to properties.
5. The applicant herein is the original accused No.59. The offences for which the applicant has been convicted and the sentence imposed are as below:
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HC-NIC Page 3 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT Offence under Section Sentence 436 r/w 149 of IPC 7 years R.I. 449 of IPC 5 years R.I. 435 of IPC 3 years R.I. 452 of IPC 3 years R.I. 427 of IPC 1 year R.I. 147 of IPC 1 year R.I. 148 of IPC 1 year R.I. 153(A)(1)(a)(b) of IPC 1 year R.I. 143 of IPC 3 months R.I. 447 of IPC 2 months R.I. 186 of IPC 2 months R.I. 188 of IPC 15 days R.I. The aforesaid sentences have been ordered to run concurrently and the time spent by the applicant in judicial custody is given as setoff by computing the total quantum of sentence. The applicant is, therefore, serving sentence of seven years' imprisonment.
6. We have heard Mr.Jal S. Unwalla, learned counsel for Mr.Rahul R. Dholakia on behalf of the applicant and Mr.R.C.Kodekar, learned Special Public Prosecutor on behalf of respondent No.2 - Special Investigating Team ("SIT"). Mr.J.K.Shah, learned Additional Public Prosecutor, has Page 4 of 43 HC-NIC Page 4 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT adopted the arguments advanced on behalf of respondent No.2.
7. Mr.Jal S. Unwalla, learned counsel for the applicant, has made the following submissions:
(i) The incident took place on 28.02.2002.
The police recorded statements of witnesses in the year 2002 itself. The name of the applicant did not figure in the statements recorded at that point of time, nor in the affidavits that were given to the police. The name of the applicant did not surface at all till the year 2008. It was only after the Supreme Court appointed the SIT in the year 2008, that for the first time, the name of the applicant has been mentioned in the statements of only three witnesses, out of a total number of 338 Prosecution Witnesses. The said statements were in a printed format and were prepared and given to the SIT pursuant to the advertisement issued by it.
(ii) No Test Identification Parade of the applicant took place and he was, for the Page 5 of 43 HC-NIC Page 5 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT first time, identified by PW106, in Court. However, the other two witnesses, namely, PW116 and 191, in whose testimonies the name of the applicant figures, failed to identify him.
(iii) The testimony of PW106 has not been believed by the Trial Court insofar as the offence under Section 302 of the IPC is concerned. However, the Trial Court has thought it fit to convict the applicant for offences punishable under Sections 436 and other offences read with Section 149 of the IPC, on the basis of the testimony of this witness alone.
(iv) It is only on the basis of the testimony of PW106 that the applicant has been convicted and sentenced to seven years' imprisonment. The Supreme Court, in the case of Masalti v. State of Uttar Pradesh - AIR 1965 SC 202, has approved the test adopted by the concerned High Court, the judgment of which was under challenge before it, to the effect that where the Court has to deal with the offence involving a large number of offenders and a large number of Page 6 of 43 HC-NIC Page 6 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT victims, unless two or three or more witnesses are shown to have given a consistent account against any of the accused, the case against them cannot be said to have been proved beyond a reasonable doubt.
(v) The applicant was on bail during the entire duration of the trial, upto the pronouncement of the judgment of conviction and order of sentence. He has not misused the liberty granted to him and was available throughout for investigation.
(vi) The applicant has no past antecedents. He has been sentenced to a sentence of a limited duration. The applicant is in custody for past about one year. There are no exceptional grounds or circumstances to deprive him of the benefit of suspension of sentence. Further, there is no statutory prohibition for not granting bail to him.
(vii) As per the principles of law laid down by the Supreme Court in cases of fixed term sentence, the Court would adopt a liberal Page 7 of 43 HC-NIC Page 7 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT approach in suspending the sentence. Rejection of the application in such a case would only be by way of an exception, and not other way round.
(viii) There is no likelihood of the criminal appeal preferred by the applicant being heard and decided in the near future.
8. Learned counsel for the applicant has relied upon the judgment of the Apex Court in the case of Bhagwan Rama Shinde Gosai And Others v. State of Gujarat - (1999)4 SCC 421, and submitted that when a convicted person is sentenced to a fixed period of sentence, his application for suspension of sentence ought to be liberally considered, unless there are exceptional circumstances. It is submitted that in the present case, there are no exceptional circumstances. Besides, it is not likely that the criminal appeal preferred by him would be heard and disposed of within a reasonably short period of time, therefore, the prayer of the applicant for suspension of sentence and release on bail may be considered in light of the Page 8 of 43 HC-NIC Page 8 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT principles of law enunciated in the above judgment.
9. Learned counsel for the applicant has also relied upon an Oral Order of this Court dated 24.01.2012 passed in Criminal Miscellaneous Application No.11414 of 2011 in Criminal Appeal No.984 of 2011 and allied matters, which was also a postGodhara riot matter. This Court, after considering the judgments of the Apex Court, including the judgment referred to hereinabove, allowed the application of the applicants therein for suspension of sentence, pending the appeal.
10. Reference has also been made to another Oral Order of this Court dated 11.05.2007, in Criminal Miscellaneous Application No.2755 of 2007 in Criminal Appeal No.29 of 2007, wherein the judgment of the Supreme Court in the case of Bhagwan Rama Shinde Gosai And Others v. State of Gujarat (supra), has been followed.
11. Learned counsel for the applicant has further fortified his submissions by referring to other Page 9 of 43 HC-NIC Page 9 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT judgments of the Apex Court, namely, in the case of Angana And Another v. State of Rajasthan - (2009)3 SCC 767, and Sunil Kumar v. Vipin Kumar And Others - (2014)8 SCC 868.
12. Opposing the application, Mr.R.C.Kodekar, learned Special Public Prosecutor, has submitted that the present is a case in which 69 persons have lost their lives, for no fault of their own. They were all innocent persons belonging to the minority community. Heinous crimes have been committed and even women, children and physically handicapped persons were not spared. There was no provocation from the side of the victims. They have lost their lives only because they professed a certain religion.
13. Learned Special Public Prosecutor has heavily relied upon and taken the Court through the evidence of PW106 in detail. He has submitted that this witness is the star witness of the prosecution, on whose testimony the applicant ought to have been convicted under Section 302 read with Section 149 of the IPC. The testimony Page 10 of 43 HC-NIC Page 10 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT of PW106 is sufficient to convict the applicant for this offence as the presence of the applicant in the mob, in furtherance of the common object, is proved. He has contended that if any person commits the crime of murder, all persons who were sharing the common object have also committed the same offence. The Trial Court has thought it fit to convict the applicant for lesser offences which, according to him, is not correct. The SIT is in the process of obtaining approval for challenging the acquittal of the applicant under Section 302 of the IPC and for filing an appeal for the enhancement of the sentence imposed upon him.
14. It is further submitted by the learned Special Public Prosecutor that even if the name of the applicant has surfaced only in the year 2008, it cannot be said that this would, in any manner, weaken the evidence on record. One has to understand the trauma the witnesses underwent on the day of the incident when their first priority was to save their lives and property.
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15. It is further elaborated that in the present case, the nature of the accusation is grave and serious. If the sentence imposed upon the applicant is suspended, it would have an adverse impact upon society, which aspect may be considered by the Court.
16. It is urged that this Court is not hearing a bail application before trial. The present application has been preferred after the trial is over, the evidence has been evaluated and a judgment of conviction rendered. The release of the applicant on bail, at this stage, therefore would have a direct impact on the society as a whole. No lenience may, therefore, be shown to the applicant who has served only one year of sentence.
17. It is further argued that though, under Section 389 of the Code, there is no statutory prohibition for suspension of sentence, the sentence should not be suspended as a matter of course. Exceptional circumstances have to be shown for suspension of sentence.
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18. In support of the above submissions, learned Special Public Prosecutor has relied upon the judgments in the case of Shiv Kumar v. State of NCT of Delhi - (2008)17 SCC 122, and Vijay Kumar v. Narendra And Others - (2002)9 SCC 364.
19. No other submissions have been advanced by Mr.R.C.Kodekar, learned Special Public Prosecutor, and no other contrary material, insofar as the present applicant is concerned, has been produced before us.
20. In rejoinder, Mr.Jal S. Unwalla, learned advocate for the applicant, has submitted that the submissions advanced by the learned Special Public Prosecutor are diametrically opposite to the principles of law laid down by the Apex Court in the judgments relied upon by him. That while considering the application under Section 389 of the Code, the Court is not required to evaluate or appreciate the evidence, which would be done by the Court deciding the criminal appeal. That, the submission of the learned Special Public Prosecutor that there have to be Page 13 of 43 HC-NIC Page 13 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT exceptional circumstances for suspension of a fixed term sentence, is exactly opposite to the principles laid down by the Supreme Court, namely, that there have to be exceptional circumstances to deny suspension of sentence in such a case.
21. That there is no statutory bar for the denial of the relief sought by the applicant herein in the present case, therefore the case may be considered in light of the settled law in this regard.
22. Distinguishing the two judgments relied upon by learned Special Public Prosecutor, it is submitted by Mr.Unwalla that Shiv Kumar v. State of NCT of Delhi (supra), was a case under the Prevention of Corruption Act, 1988, wherein the Supreme Court has observed in the peculiar facts of the case that when an accused is convicted for an offence punishable under the said Act, it would not be prudent and desirable to extend the benefit of Section 389 of the Code. As regards Vijay Kumar v. Narendra And Page 14 of 43 HC-NIC Page 14 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT Others (supra), it is submitted that the offence alleged therein was under Section 302 of the IPC and the sentence was not for a fixed term. It is submitted that both these cases were decided on their own facts, therefore, the ratio of these judgments would not be applicable in the present case.
23. In the above background, we have heard learned counsel for the respective parties at length and accorded deep and thoughtful consideration to the facts and circumstances of the case, the judicial precedents relied upon and the rival contentions.
24. The applicant has been convicted for offences mentioned hereinabove and sentenced to seven years' imprisonment. The sentence imposed upon him, therefore, is for a limited duration. The law regarding the judicial approach to be adopted by the Court while dealing with an application for suspension of sentence, pending appeal, wherein the sentence is for a fixed term, is no longer resintegra.
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25. We may take note of the relevant judgments of the Supreme Court in this regard, some of which have been referred to by learned counsel for the applicant, as well.
26. In Bhagwan Rama Shinde Gosai And Others v. State of Gujarat, the Supreme Court was dealing with a case where the appellants before it were sentenced to rigorous imprisonment for ten years. Their application for suspension of sentence was disallowed by the High Court and their motion for having their appeal expedited was also declined. In this factual background, the Supreme Court held as below:
"3. When a convicted person is sentenced to fixed period of sentence and when he files appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for Page 16 of 43 HC-NIC Page 16 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT any reason the sentence of limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when motion for expeditious hearing the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate Court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate Court must bestow special concern in the matters of suspending the sentence. So as to make the appeal right meaningful and effective. Of course appellate Courts can impose similar conditions when bail is granted."
27. In Kiran Kumar v. State of M.P. (2001)9 SCC 211, the Apex Court, while following its earlier decision in the case of Bhagwan Rama Shinde Gosai stated thus:
"3. This Court has held in Bhagwanram Shinde v. State of Gujarat, 1999 (4) SCC 421 that when a person is convicted and sentenced to a short term imprisonment the normal rule is that when his appeal is pending the sentence should be suspended and rejection is only by way of exception and be put forward for such rejection. In Page 17 of 43 HC-NIC Page 17 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT such case also every endeavour should be made to have the appeal posted for early hearing and disposal. If the shortterm sentence is allowed to run out during the pendency of the appeal the appeal itself will become, for all practical purposes, infructuous so far as the appellant is concerned. It does not mean that the appellate Court should suspend the sentence, if its consequence would be danger to the society or any other similar difficulties.
4. No exceptional reason had been shown in the impugned order for not suspending the sentence in this case. We, therefore deem it appropriate to interfere with the said order. We suspend the sentence passed on the appellant during the pendency of the appeal and direct him to be released on bail on his executing a bond with two solvent sureties to the satisfaction of the trial Court."
(emphasis supplied)
28. Thereafter, in the case of Suresh Kumar And Others v. State (NCT of Delhi) - (2001)10 SCC 338, following the principle enunciated in the judgment of Bhagwan Rama Shinde Gosai, the Page 18 of 43 HC-NIC Page 18 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT Supreme Court held as below:
"5. This Court has stated in Bhagwan Rama Shinde Gosai v. State of Gujarat [(1999)4 SCC 421]: (SCC p.422, para 3)
3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances."
6. No exceptional circumstance has been highlighted by the learned Single Judge for deviating from the aforesaid course suggested by this Court. We, therefore, allow this appeal and order the suspension of the sentence of imprisonment passed on the appellants during the pendency of the appeal before the High Court. They shall be released on bail on each of them executing a bond with two solvent sureties to the satisfaction of the trial court."
29. In Angana And Another v. State of Rajasthan (supra), which is also a case of fixed sentence, the Supreme Court held:
"13. In the instant case, an application under Section 389 CrPC is filed for suspension of sentence by a convict in a Page 19 of 43 HC-NIC Page 19 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT pending appeal. The accused was on bail when the matter was pending before the Sessions Court. It is not the case of the prosecution that the accused who is released on bail would abscond during the pendency of the appeal.
14. When an appeal is preferred against conviction in the High Court, the Court has ample power and discretion to suspend the sentence, but that discretion has to be exercised judiciously depending on the facts and circumstances of each case. While considering the suspension of sentence, each case is to be considered on the basis of nature of the offence, manner in which occurrence had taken place, whether in any manner bail granted earlier had been misused. In fact, there is no straitjacket formula which can be applied in exercising the discretion. The facts and circumstances of each case will govern the exercise of judicial discretion while considering the application filed by the convict under Section 389 of Criminal Procedure Code.
15. This Court in Takhat Singh and others v. State of M.P. (2001) 10 SCC 463, has held that: (SCC p.464 para 2) "2. the appellants are already in jail for over 3 years and 3 months. There is Page 20 of 43 HC-NIC Page 20 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore."
16. Reference can made to the decision of this Court in Kashmira Singh v. State of Punjab (1977) 4 SCC 291, where this Court has observed that : (SCC pp.29293, para 2) "2. ...Now, the practice in this Court as also in many of the High Court has been not to release on bail a person who has been sentenced to life imprisonment for an offence under S. 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, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application Page 21 of 43 HC-NIC Page 21 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT 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 for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be 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 to 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 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."
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The Court going by the said consideration held that : (Kashmira Singh case, p.291) ".... that so long as the Supreme Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail where special leave has been granted to the accused to appeal against his conviction and sentence. The other consideration, however, is equally important and relevant. When a person is convicted by an appellate Court, he cannot be said to be an innocent person until the final decision is recorded by the superior Court in his favour."
17. In Babu Singh v. State of U.P., 1978 (1) SCC 579, it was observed, that: (SCC p.585, para 17) "17. The significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even handed and geared to the goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bifocal interests of justice to the individual involved and society affected.""
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HC-NIC Page 23 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT (emphasis supplied) In the very judgment, after noticing certain other judgments, including that in the case of Bhagwan Rama Shinde Gosai and Suresh Kumar And Others v. State (NCT of Delhi), the Supreme Court held as under:
"23. In the present case, the appellants were on bail during the pendency of the case before the Sessions Court. The Sessions Court has acquitted most of the accused persons after trial except the appellants. It is not the case of the other side, that, when the accused were on bail they had indulged themselves in any offence either under the provisions of Indian Penal Code or any other statute. It is also not the case of the prosecution that when the appellants were on bail they had either jumped the bail or were any way responsible for prolonging the proceedings before the Sessions Court, and it is also not the case of the other side that they would abscond and would not be available, to undergo the sentence if the appellate Court affirms the order passed by the Sessions Court.
24. Taking into consideration overall view of the matter and in particular offence Page 24 of 43 HC-NIC Page 24 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT alleged and sentence imposed and further taking into consideration the acquittal of other accused persons, who were also charge sheeted in the same offences as that of the appellants and further taking into consideration the conduct' of the appellants during the trial before the Sessions Court when they were on bail, in our view the High Court could have suspended the sentence and granted bail to the appellants. Therefore, this Court would be justified that Art. 136 of the Constitution in interfering with the discretion exercised by the High Court. We, therefore, suspend the sentence and direct the appellants to be released on bail on each one of them executing a bond with two solvent sureties to the satisfaction of Additional District and Sessions Judge, Deeg."
30. In Sunil Kumar v. Vipin Kumar And Others (supra), the Supreme Court held as below:
"13. We have heard the rival legal contentions raised by both the parties. We are of the opinion that the High Court has rightly applied its discretionary power under Section 389 of CrPC to enlarge the respondents on bail. Firstly, both the Criminal Appeal and Criminal Revision filed by both the parties are pending before the Page 25 of 43 HC-NIC Page 25 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT High Court which means that the convictions of the respondents are not confirmed by the appellate court. Secondly, it is an admitted fact that the respondents had been granted bail earlier and they did not misuse the liberty. Also, the respondents had conceded to the occurrence of the incident though with a different version."
31. This Court, while dealing with a postGodhara riot case regarding suspension of a fixedterm sentence has, by the order dated 24.01.2012 passed in Criminal Miscellaneous Application No.11414 of 2011 in Criminal Appeal No.984 of 2011 and allied matter has, after relying upon the judgments of the Apex Court in Bhagwan Rama Shinde Gosai And Others v. State of Gujarat, Kiran Kumar v. State of M.P., and Suresh Kumar And Others v. State (NCT of Delhi), held, after quoting Paragraph3 of the judgment in Bhagwan Rama Shinde Gosai, as below:
"7. It is also true that such principle has been reiterated by the Apex Court subsequently, therefore, what calls for the consideration of the Court is whether there are exceptional circumstances.
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8. The learned counsel of both the sides have not been able to show any decision of the Apex Court, wherein, those exceptional circumstances are further explained or stated by giving instances or otherwise. In our view, the word "exceptional circumstances" is to be interpreted in the matter of exercise of powers for suspension of sentence and for grant of regular bail. It is also an admitted position that pending the trial, the applicants herein were granted bail. It is not the case of the prosecution that when they were on bail pending trial, have misused their liberty nor it is the case of the prosecution that there are any extraordinary circumstances like that of jumping of bail, indulging into any crime or any offence while on bail or any such ground which can be said as valid for disentitling the liberty of bail. Therefore, as such, in absence of any such exceptional circumstances, in view of the observations made by the Apex Court in the case of Bhagwan Rama Shinde Gosai & Ors., the matter may be required to be considered for suspension of sentence and grant of bail, more particularly, when the sentence imposed is, in any case, not exceeding five years R/I, i.e. the sentence for a limited duration of five years R/I. Page 27 of 43 HC-NIC Page 27 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT Regarding the implication of Section 149 IPC, the Division Bench held that:
9. The attempt made by Mr. Panchal learned Special PP to contend that the learned Sessions Judge has committed an error in convicting the applicants and imposing sentence coupled with the circumstances that enhancement appeal is preferred by the State so as to deny the exercise the powers by the Court for suspension of sentence and grant of regular bail treating them as exceptional circumstances, in our view, cannot be countenance at this stage, since whether the applicants hereinconcerned accused, were required to be convicted for the offence under sec. 302 read with section 149 of IPC and not under section 324, 325 or 326 with sec. 149 of IPC, are the aspects which can be concluded at the time of final hearing of the enhancement appeal preferred by the State and not at this stage. The aforesaid is also coupled with the circumstance that the applicants being aggrieved by the judgment and order of the learned Sessions Judge for conviction and imposition of sentence, have also preferred appeal against the conviction. Therefore, the conviction appeal preferred by the accused as well as Page 28 of 43 HC-NIC Page 28 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT the appeal for enhancement of the sentence preferred by the State, both are admitted and to be finally decided after appreciation of the evidence. Whether the charge under sec. 149 of IPC is validly proved or if proved, to what extent, for attracting conviction and whether with sec. 302 or 324, 325 or 326 or whether the conviction at all can be maintained or not, are the aspects which can be gone into after appreciating the whole evidence and any view can be expressed at the time of final hearing of the appeal. Therefore, such cannot be termed as exceptional circumstances at the stage of suspension of sentence and grant of bail on the premise of appropriate conviction and sentence ought to have been imposed by the learned Sessions Judge.
Dealing with the submission regarding the impact on society if the sentence in that case is suspended, this Court held that:
10. The second aspect of impact on the society on account of post Godhra riots case, while exercising the powers for suspending the sentence, deserves to be considered, but it is not a case where it has resulted into no conviction at all. The conviction of three persons namely A2, A8 Page 29 of 43 HC-NIC Page 29 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT and A6 has resulted with the sentence of life imprisonment and 10 years R/I respectively, and this Court has declined to release those accusedconvicts on bail by suspending the sentence. However, the same would not be applicable to the applicants herein who have been convicted for the offence under sec. 324, 325, 326 and 149 of IPC, and sentence is not in any case exceeding five years R/I. Therefore, in our view, considering the facts and circumstances of the case, when the suspension of sentence and bail has been denied to three accused, who have been convicted for the serious crime, and when for the applicantsaccused herein namely A 3,A9 and A10, the sentence is imposed of a period not exceeding five years R/I, it cannot be said that the exercise of powers by the Court would adversely affect the impact on the society as sought to be canvassed. We may only observe that it is for the Court to balance the rights of the citizen under the law for liberty keeping in mind the adverse effect or adverse impact on the society. Considering the facts and circumstances of the case, we do not find that when bail is not granted to the three accusedconvicts, it should apply to everybody irrespective of the conviction and sentence imposed by the learned Sessions Page 30 of 43 HC-NIC Page 30 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT Judge."
32. In the order dated 11.05.2007, passed in Criminal Miscellaneous Application No.2755 of 2007 in Criminal Appeal No.29 of 2007, the Division bench has followed the principles enunciated by the Supreme Court in the case of Bhagwan Rama Shinde Gosai.
33. We have applied the test of the principles enunciated by the Supreme Court in the judgments discussed hereinabove, to the facts and circumstances of the present case, while keeping all aspects of the matter including the nature of the offence and its possible social implications in mind, visavis the liberty of the convicted applicant. The sentence imposed upon the applicant is for a limited duration, namely, imprisonment for seven years. Though the criminal appeal preferred by him has been admitted, there does not appear to be any likelihood that it would be heard and disposed of in the near future. The learned Special Public Prosecutor has submitted that the SIT has Page 31 of 43 HC-NIC Page 31 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT sought approval from the State Government to challenge the acquittal of the applicant under Section 302 of the IPC and also to prefer an appeal for enhancement of the sentence. Such an appeal has not been filed so far but if filed in future, it would have to be heard along with the criminal appeal preferred by the applicant. There would be other appeals of convicted persons and all appeals would be heard together, as is the usual practice. The expeditious disposal of the appeals(s), therefore, cannot be said to be a possibility that can be banked upon, with any amount of certainty.
34. The applicant has been on bail throughout the trial. We have specifically inquired from the learned Special Public Prosecutor whether the applicant has misused his liberty at any point of time. He has answered in the negative. Neither has any apprehension been expressed before us that the applicant is likely to misuse his liberty in future, if the sentence is suspended.
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35. The learned Special Public Prosecutor has tried to draw a distinction between bail granted during trial and suspension of sentence granted after the judgment of conviction is pronounced. He has made an attempt to canvas that as per Section 389 of the Code, the sentence can only be suspended as an exception and not as a matter of course. We are unable to find such a principle enshrined in Section 389 of the Code. On the contrary, the Supreme Court has held that the Court has ample power and discretion to suspend the sentence by exercising discretion on the facts and circumstances of each case. It is also stated that refusal to suspend the sentence of a fixed term would be an exception [See: Kiran Kumar v. State of M.P. (supra)]. Each case has to be considered in the context of its own facts and there cannot be any straightjacket formula.
36. Learned Special Public Prosecutor has gone into the evidence on record in great detail, especially the deposition of PW106, on the basis of whose testimony the applicant has been Page 33 of 43 HC-NIC Page 33 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT convicted under Section 436 and other offences of the IPC and sentenced to seven years' imprisonment. He has elaborated upon all facets of the evidence, laying stress upon the serious nature of the allegations against the applicant, while stating that in view of the provisions of Section 149 of the IPC, it is a fit case for the conviction of the applicant under Section 302 of the IPC.
37. Although we have been taken through the evidence on record, insofar as it pertains to the present applicant, we do not consider it appropriate, at this stage, to enter into a discussion regarding it. Whether the applicant ought to have been convicted of the offence under Section 302 read with Section 149 of the IPC, or not, is not at issue before us at the stage of deciding an application under Section 389 of the Code. The evaluation and appreciation of evidence would be done by the Court hearing the criminal appeal(s).
38. The learned Special Public Prosecutor has Page 34 of 43 HC-NIC Page 34 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT emphatically submitted that if this Court favourably considers the suspension of sentence in the present case, it would have a direct impact upon society, taking into consideration the nature of the offence where a particular community was targeted.
39. We are conscious of the nature of the case and have given thoughtful consideration to the aspect regarding the impact on society if the sentence of the applicant is suspended. Suspension of sentence in a matter such as this one requires a careful and cautious judicial approach. To this end, we have kept the evidence on record in mind and taken into consideration all relevant aspects, both factual and legal, in order to arrive at a conclusion. No doubt, the submission regarding the possible impact on society is a relevant one. At the same time, it has to be weighed with other factual aspects such as the duration of the sentence, the aspect whether the applicant was on bail during trial and whether he has misused his liberty, whether there is an apprehension regarding the misuse of Page 35 of 43 HC-NIC Page 35 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT liberty in future and whether there are any exceptional circumstances to deny him the suspension of sentence. All these factors have to be balanced and weighed judiciously, in light of settled legal principles. After doing so, we find that there are no such exceptional circumstances to refuse the suspension of the sentence imposed upon the applicant. None have been pointed out by the learned Special Public Prosecutor and neither is there any submission regarding misuse of liberty in the past or an apprehension regarding the future.
40. Insofar as the social implications of the matter are concerned, it is not as though no accused person has been convicted. The record reveals that out of a total number of 66 accused persons, six have died during the trial, 36 have been acquitted and 24 persons have been convicted, including the applicant. Out of these 24 convicted accused, 11 accused have been sentenced to undergo life imprisonment. Each case has to be adjudged on the basis of its own facts and we have done so in the present case.
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41. Learned counsel for the applicant submits that, as of today, no application for bail has been moved by the persons convicted of the offence under Section 302 IPC. One application that was moved was withdrawn. There have been convictions in the matter, even under Section 302 IPC. The appeals are yet to be heard and enhancement would be prayed for in some cases. The applicant herein has been convicted for offences punishable under Section 436 and other offences and sentenced to seven years' imprisonment. The facts of this case have to be evaluated in the context of the law laid down by the Supreme Court in a catena of judgments
42. Insofar as the judgments relied upon by learned Special Public Prosecutor are concerned, in Shiv Kumar v. State of NCT of Delhi (supra), it is held:
"6. Of course both these cases related to the offence punishable under Section 302 IPC.
7. This Court has observed in several cases that where the accused is convicted Page 37 of 43 HC-NIC Page 37 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT for offence punishable under the Act,it would not be prudent and desirable to give protection under Section 389 of "the Code".
However, taking into account the peculiar circumstances of the case we request the High Court to dispose of the appeal as early as practicable."
That was a case regarding suspension of sentence where the conviction was under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988. Taking into consideration the peculiar facts and circumstance of the case, as well as the aspect that the appellant therein was convicted under the Prevention of Corruption Act, the Supreme Court was not inclined to grant him protection under Section 389 of the Code. The present is not a case under the Prevention of Corruption Act, therefore, the observations of the Supreme Court, rendered on the facts of that case, would not be applicable in the present case.
43. In Vijay Kumar v. Narendra And Others (supra), relied upon by the learned Special Public Prosecutor, conviction was recorded under Section 302 of the IPC. The Supreme Court held Page 38 of 43 HC-NIC Page 38 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT that the High Court did not consider the relevant factors such as the nature of the accusation, the manner in which the crime was committed, and the gravity and seriousness of the offence of murder while suspending the sentence under Section 389 of the Code. This judgment, as well, would not be applicable in the present case as the sentence imposed upon the applicant herein is for a fixed duration. The applicant has not been convicted for the offence under Section 302 of the IPC, but for a lesser offences. The above judgment would, also not be applicable to the present case.
44. In the present application, the applicant has made a prayer to suspend his conviction, as well as sentence. We make it clear that we are not inclined to grant the prayer insofar as the suspension of conviction is concerned. Therefore, the conviction of the applicant stands, for the present.
45. While considering the facts of the case, we are guided by the principles of law enunciated by Page 39 of 43 HC-NIC Page 39 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT the Apex Court in the judgments referred to above. We are conscious that the Court is obliged to balance the rights of the citizen regarding liberty with the possible impact on society. While weighing both aspects, we do not find that the suspension of the sentence imposed upon the applicant would have a momentously adverse impact or deleterious effect on society, especially when all other factors based on judicial precedents as required by law to suspend the sentence, are present in this case.
46. We deem it fit to clarify that we have considered this application only on the basis of the material in respect of the present applicant before us, and not with regard to any other aspect.
47. As a result of the aforesaid discussion, we deem it proper to pass the following order: The order of sentence dated 17.06.2016, imposed by the learned Special Judge, Designated Court for Speedy Trial of Riot Cases (Gulbarg Society), Ahmedabad, in Sessions Case No.152 of Page 40 of 43 HC-NIC Page 40 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT 2002 & allied matters, namely, Sessions Case No.195 of 2009, whereby the applicant - original accused No.59 has been sentenced to undergo rigorous imprisonment for a period of seven years, is ordered to be suspended till the decision of Criminal Appeal No.1177 of 2016, qua the applicant. The applicant - original accused No.59, shall be released on bail on his furnishing a bail bond of Rs.25,000/ (Rupees Twenty Five Thousand Only) with one solvent surety of the like amount, to the satisfaction of the Trial Court, subject to the following conditions:
(i) The applicant shall not take undue advantage of his liberty or abuse his liberty;
(ii) The applicant shall not indulge in any offence and shall maintain law and order;
(iii) The applicant shall not leave India without the prior permission of this Court;
(iv) The applicant shall surrender his Passport, if any, to the Court below within one Page 41 of 43 HC-NIC Page 41 of 43 Created On Tue Jun 27 23:52:56 IST 2017 R/CR.MA/15020/2017 JUDGMENT week. If he does not possess any Passport, he shall make a declaration to this effect before the Trial Court;
(v) If, during the pendency of the Criminal Appeal, there is any change in the residential address, permanent or temporary, the applicant shall intimate the same to the Trial Court as well as to the concerned Police Station.
48. Bail before the Trial Court having jurisdiction.
49. It is, however, made clear that any observation contained in this order shall not affect the merits of the case at the time of the final hearing of the criminal appeal.
50. Subject to the above conditions, the application is partlyallowed. Rule is made absolute to the above extent.
51. Direct Service of this order is permitted.
(SMT. ABHILASHA KUMARI, J.)
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(A.J. SHASTRI, J.)
sunil
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