Patna High Court - Orders
Subhash Mandal vs The State Of Bihar on 15 May, 2019
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.2363 of 2017
Arising Out of PS. Case No.-47 Year-2009 Thana- PRANPUR District- Katihar
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Subhash Mandal Son of Sudama Krishna Mandal, Resident of Village Parsa,
P.S. Pranpur, District- Katihar.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
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with
CRIMINAL APPEAL (SJ) No. 2522 of 2017
Arising Out of PS. Case No.-47 Year-2009 Thana- PRANPUR District- Katihar
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1. Shantosh Kumar Chaudhary and Anr S/o Late Ashok Kumar Chaudhary.
2. Satish Kumar Chaudhary, S/o Late Ashok Kumar Chaudhary. Both R/o
Village- Dogachhi, P.S.- Manihari, District- Katihar.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
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Appearance :
(In CRIMINAL APPEAL (SJ) No. 2363 & 2522 of 2017)
For the Appellant/s : Mr. Y. V. Giri, Sr. Advocate
Mr.Md. Musowir, Advocate
Mr. Pranav Kumar, Advocate
Mr. Rajat Kumar Tiwari, Advocate
Mr. Sumit Kumar Jha, Advocate
Mr.Arvind Kumar Sinha, Advocate
For the Respondent/s : Mr.Sri Shyed Ashfaque Ahmad, APP
For the Respondent/s : Mr.Harish Chandra Patel, Advocate
Mr. Rajiv Ranjan, Advocate
Mr. Sharda Nand Mishra, Advocate
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER
9 15-05-2019Heard learned counsel for the petitioners as well as learned APP.
2. Against the judgment of conviction and sentence dated 28/31-07-2017 relating to S.T. No. 351/2010 passed by Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 2/35 Additional Sessions Judge-FTC-II, Katihar holding the accused guilty for an offence punishable under Section 376, 342 of the IPC and directed to undergo RI for 8 years as well as to pay fine along with default clause under Section 376 IPC, no separate sentence was passed with regard to Section 342 IPC, the convicts have preferred three Criminal Appeals (SJ) Nos. 2828/2017, 2663/2017 and 2522/2017. After admission of the respective appeals, prayer for bail was made at their end asking for suspension of sentence till pendency of the respective appeals and, after considering the materials available on the record, vide order dated 21.12.2017, the same was rejected.
3. It is apparent that on behalf of appellants of Cr. Appeal (SJ) No. 2363/2017 an Interlocutory Application bearing No. 02/2019 has been filed in order to stay of realization of fine till pendency of the appeal under the garb of principle decided by the Apex Court in the case of Satyendra Kumar Mehra v. State of Jharkhand reported in 2018(2) PLJR 260 SC.
4. Heard.
5. Allowed. Accordingly, the realization of fine is stayed till pendency of the appeal. Consequent thereupon, I.A No. 02/2019 is allowed.
6. Prayer for bail has been renewed at the end of Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 3/35 appellants of Cr. Appeal (SJ) No. 2522/2017 by way filing an I.A. No. 01/2019. Furthermore, I.A. No. 02/2019 has also been filed asking for stay of realization of fine till pendency of appeal as the memo of appeal lacks the same. Seeing no impediment in between, it is ordered that there should be stay of realization of fine till pendency of instant appeal. Accordingly, I.A. No.02/2019 stand allowed.
7. Learned senior counsel while stressing upon and justifying the prayer of the appellants, namely, Santosh Kumar Chaudhary, Satish Kumar Chaudhary, has submitted that irrespective of rejection of the prayer for bail at an earlier occasion, successive petitions are maintainable without any restriction in the background of the fact that the order impugned could not be said to be the final order rather, it happens to be out and out an interlocutory order and further, guided by so many intervening incidents. Furthermore, it has also been submitted that prayer has been revived as is legally entertainable, more particularly, when the appellants are under custody and there happens to be no prospect on early hearing on account of over burdened docket.
8. In order to properly assist the Bench, learned senior counsel for the appellant has submitted that two Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 4/35 judgments of the Hon'ble Apex Court is frequently misinterpreted/misconstrued while rejecting the prayer for bail at post conviction stage. Before coming to that judgment, it has been submitted that different provisions for filing of an appeal has to be considered and in likewise manner, the legal implication relevant thereto.
9. Citing the case of Jumman & ors v. State of Punjab reported in AIR 1957 SC 469, it has been submitted at the end of learned counsel for the appellants that First Appeal is in continuation of trial which, the Hon'ble Apex Court in the aforesaid decision has conclusively held, more particularly, in the background of presence of so many provisions including that of Section 391 CrPC which virtually, if allowed, identifies the appellate court as a trial court. In the aforesaid background, it has been submitted that mere pendency of first appeal against the judgment of conviction would not spare rather, in its strict sense irrespective of being convicted and sentenced, would not allow the separate identity as Criminal Appeal though, in terms of Section 374 of the CrPC could be and in likewise manner, the prayer for bail is entertainable under Section 389(1) CrPC but the carode of consideration will be akin to Section 439 CrPC (pre-conviction stage) if the sentence happens to be beyond the Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 5/35 parameter of Sub-Section-3 of the Section 389 CrPC. Under the garb of aforesaid submission having been at the end of learned senior counsel for the appellants, it has been submitted that in a case State of M.P. v. Kajad reported in (2001) 7 SCC 673 wherein some sort of embargo has been prescribed was in the background of nature of the case relating to NDPS and more particularly, Section 37 was very much there along with clutch over consideration of prayer for bail.
10. It has also been submitted that in Sidhartha Vashisht @ Manu Sharma v. State of (NCT of Delhi) reported in (2008) 5 SCC 230, popularly known as Jessica Lal's murder case, whatsoever embargo was prescribed, that was on account of concurrent findings of the trial court as well as appellate court, that means to say, from the court of first appellate court, the judgment of conviction and sentence has been affirmed. So, the restrictions so imposed in the aforesaid judgment was relating to second appeal and so, it was not of universal application. So, it has been submitted that even though there happens to be basic difference, the aforesaid judgments are being frequently mis-interpreted.
11. It has also been submitted that Section 389(1) CrPC deals with two kinds of eventualities. The first one is Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 6/35 grant of bail after staying sentence till pendency of appeal, while the another part deals with stay of conviction till pendency of the appeal. So far stay of conviction is concerned, there happens to be consistency that in ordinary course of nature, it would not be unless and until there happens to be exceptional circumstance and for that, certain criterion have been laid down. With regard to suspension of sentence, again there happens to be uniformity with consistency that whenever there happens to be delay in disposal of the appeal and appellant has remained in custody for sufficient time irrespective of nature of the offence whereunder appellant has been convicted, should be released on bail under the garb of Article 21 of the Constitution of India. The procedure for consideration of the prayer has been laid down by the Hon'ble Apex Court identifying the gravity of the offence as well as tenure of the sentence in Atul Tripathi v. State of U.P reported in (2014) 9 SCC 177 but, it did not speak with regard to presence of any kind of hurdle in releasing the appellant on bail in case, he remained under custody for sufficient time and there happens to be no prospect of appeal being heard in near future.
12. However, learned Senior Counsel fairly submitted that no yardstick has been framed by the Apex Court, Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 7/35 though, certainly it should have been in consonance with the gravity of the offence. The learned Senior Counsel also submitted that after prescribing the mode of consideration in Atul Tripathi's case (supra) the Hon'ble Apex Court has bifurcated the issue in two parts, sentence having more than 10 years and , upto 10 years. Certainly, there would be gravity where sentence is more than 10 years and so, during course of consideration certain guideline has been prescribed while upto 10 years, no such abdulent is visible. That means to say, impliedly, the Hon'ble Apex Court has prescribed two kinds of yardstick for consideration of prayer for bail in terms of Section 389(1) of the CrPC in consonance with the infliction of sentence up to 10 years, more than 10 years, that means to say, the question has been positively settled at rest.
13. Furthermore, it has also been submitted that while the matter was considered in Kashmira Singh's Case reported in (1977) 4 SCC 291, the same was decided having fragrance of Article 21 of the Constitution which has been followed by the Full Bench of our own High Court in Anurag Baitha's case reported in AIR 1987 Pat 274. In its continuity learned counsel for the appellant also referred the case of Angana v. State of Rajasthan reported in (2009) 3 SCC 767, Bhagwan Rama Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 8/35 Shinde Gosai v. State of Gujarat (1999) 4 SCC 421, Chandra Shekhar Bharti v. State of Bihar, 2014 (2) PLJR 756.
14. On the other hand, learned APP though controverted the submissions made on behalf of learned senior counsel for the appellants but has submitted that an order under Section 389(1) CrPC on no stretch of imagination could be considered as final order, on account thereof, prayer could be revived/renewed without any clutch. Even in the case of State of MP v. Kajad reported in (2001)7 SCC 673 on the basis of which a Division Bench decision of this Court in Satendra Singh v . The State of Bihar reported in 2019 (1) PLJR 608, is based, also did not prohibit, however, inferred that it should be in exceptional circumstance as well as in the background of perversity in the judgment impugned.
15. Furthermore, it has also been submitted that mere custody of a convict could not be considered as bench mark though, it may be one of the grounds, more particularly, in consonance with the length of sentence coupled with gravity of the offence. Furthermore, it has also been submitted that during consideration of the aforesaid theme in proportionate way over inadequacy of infliction of proper sentence in consonance with the gravity of the offence is also be considered in the Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 9/35 background of the fact that now-a-days, there happens to be complete disregard of the sentencing policy properly explained times without number by the Hon'ble Apex Court and so, the overall situation is to be properly perceived at post conviction stage, more particularly, in the background of erosion of basic jurisprudence of the criminal law that accused is innocent till he is convicted. In the aforesaid background, it has been submitted that being the culprit of gang rape, appellants did not deserve bail after suspending the sentence till pendency of appeal.
16. After patient hearing over sagital issue, two points have been identified requiring properly answered. The first one whether renewal of prayer is permissible or not and the second one that period of custody be a sole yardstick for grant of bail at post conviction stage in accordance with Section 389(1) CrPC. In order to properly appreciate the point no.1, Section 389(1) is to be quoted which is as follows:-
13. "S.- 389. Suspension of sentence pending the appeal; release of appellant on bail.-
(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
[Provided that the Appellate Court shall, before releasing on bail or on his own bond a Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 10/35 convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:
Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.
17. In State of Rajasthan v. Salman Salim Khan reported in (2015) 15 SCC 666, it has been observed as follows:-
"17. In State of Tamil Nadu v. A. Jaganathan (1996) 5 SCC 329 this Court held that power to suspend conviction and sentence pending appeal/revision can be exercised only when damage caused to the Appellant/revisionist cannot be undone if he ultimately succeeds.
18. Similar observation was made by this Court in Ravikant S. Patil v. Sarvabhouma S. Bagali (2007) 1 SCC 673. In the said case, this Court held:
"15. It deserves to be clarified that an order granting stay of conviction is not the rule but is' an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non- operative. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying the Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 11/35 consequences if conviction was not stayed, that is, the Appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the Respondent that the disqualification arising out of conviction continues to operate even after stay of conviction".
19. Referring to other decisions of this Court, in Ravikant S. Patil this Court further observed:
'16.5. All these decisions, while recognising the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences.'
18. As referred hereinabove, from plain reading of Section 389(1) CrPC, there happens to be no visibility of any kind of embargo over availing the liberty. Had there been an intention at the end of legislature, certainly there would have been restriction as, CrPC itself possesses relevant provisions whereunder such kind of prohibition has been prescribed, such as no appeal against petty nature of sentence, no second appeal before the High Court, no revision against an interlocutory order etc. Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 12/35
19. That being so, it could not be said that once rejected, it ultimately dooms the fate of the appellant in renewing the prayer under Section 389(1) CrPC. Even in Satendra Singh v . The State of Bihar reported in 2019 (1) PLJR 608 wherein para-8 of State of MP v. Kajad (supra) has been referred, finally concluded under para-14 as follows:-
"14. ......... The Hon'ble Supreme Court has already observed that such power should be exercised in exceptional cases. Meaning thereby that in appeal, grant of suspension of sentence is "Exception", whereas, rejection of prayer for suspension of sentence is "Rule". Accordingly, in normal course, in appeal, there is no reason to entertain the prayer for suspension of sentence or granting bail, unless the case is of exceptional nature and also there is perversity in the judgment of conviction and sentence."
20. In Babu Singh & Ors v. State of U.P. reported in (1978) 1 SCC 579, it has been held as follows:-
" 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 Art- 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. Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 13/35
18. We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a batter chance to prepare or present his case than one remanded in custody. And if public justice is to be promoted, mechanical detention should be demoted. In the United States, which has a constitutional perspective close to ours, the function of bail is limited, 'community roots' of the applicant are stressed and, after the Vera Foundation's Manhattan Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible.
19. A few other weighty factors deserve reference. All deprivation of liberty is validated by social defense and individual correction along an anti-criminal direction, public justice is central to the whole scheme of bail law. Fleeing justice must be forbidden but punitive harshness should be minimised. Restorative devices to redeem the man, even through community service, meditative drill, study classes or other resources should be innovated, and playing foul with public peace by tampering with evidence, intimidating witnesses or committing offences while on judicially sanctioned 'free enterprise', should be provided against. No seeker of justice shall play confidence tricks on the court or community. Thus, conditions may be hung around bail orders, not to cripple but to protect. Such is the holistic jurisdiction and humanistic orientation invoked by the judicial discretion correlated to the values of our constitution. Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 14/35
21. The second questionnaire is the backbone of the issue and needs extra attention. In Atul Tripathi's case (supra) under para-15, criteria has been laid down but that relates to where the sentence is 10 years and above, and so, goes out of consideration as the matter in hand relates with sentence upto 10 years .
22. Before coming over citations having at the end of the appellants, the submissions of the learned senior counsel for the appellant that Sidhartha Vashisht @ Manu Sharma v. State of (NCT of Delhi) reported in (2008) 5 SCC 230 has laid down the principle in the background of stage of the appeal/second appeal having concurrence of judgment of conviction and sentence to the Supreme Court and in the aforesaid background, in para-16 certain observations detrimental to the interest of the appellant has been passed, could not be applicable in the present circumstance. It is needless to say that though, the matter was before the Apex Court relating to murder, that too under second appeal, special principle so laid down deals with the method as to how to consider the prayer after post conviction stage and for better appreciation, the same is quoted below:-
"32. 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 Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 15/35 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 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.
33. 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)
34. 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 and grant of bail. What really necessary is to consider Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 16/35 whether reasons exist to suspend execution of the sentence and grant of bail."
23. In Bhagwan Rama Shinde Gosai v. State of Gujarat reported in AIR 1999 SC 1859, it has been held as follows:-
"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 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 matter 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.
24. In Kashmira Singh v. State of Punjab reported in (1977) 4 SCC 291 which happens to be the sheet anchor of the present theme wherein during course of consideration of the prayer entitlement of a convict in terms of Article 21 has been Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 17/35 properly acknowledged the Apex Court has observed as follows:-
" 2. The appellant contends in this application that pending the hearing of the appeal he should be released on bail. Now, 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, he 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 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 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 Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 18/35 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 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.
25. In Kishori Lal v. Rupa, (2004) 7 SCC 638 : It has been observed as follows:-
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 loses 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 Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 19/35 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 v. Hasmat [(2004) 6 SCC
8. In Vijay Kumar v. Narendra [(2002) 9 SCC 364 : 2003 SCC (Cri) 1195] and Ramji Prasad v. Rattan Kumar Jaiswal [(2002) 9 SCC 366 : 2003 SCC (Cri) 1197] it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. The impugned order of the High Court does not meet the requirement. In Vijay Kumar case [(2002) 9 SCC 364 : 2003 SCC (Cri) 1195] 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.
26. In Vijay Kumar vs. Narendra, : (2002) 9 SCC 364, it has been observed as follows:
"10. ... ....... The principle is well settled 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 the accusation Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 20/35 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."
27. In the background of principle laid down by the Hon'ble Apex Court in Kashmira Singh's case (supra) the matter has come up for consideration before the Full Bench in Anurag Baitha's case and even thereafter, the matter has been found to some relevance on account of absence of uniformity of the scale and that happens to be reason behind that once again the matter has come up before the Division Bench in the case of Chandra Shekhar Bharti v. State of Bihar reported in 2014(2) PLJR 756. After discussing the matter in detail, ultimately, it has been concluded under para-111, concurred by another member of the Bench which is as follows:-
"111. The discussion, undertaken hereinbefore, may be summarized as follows:--
a. While considering an application for suspension of sentence, the Appellate Court has to record reasons, in writing. The requirement of recording of reasons must be preceded by careful consideration of the relevant aspects of the case at hand including issues of human rights or other relevant aspects as envisaged under Article 21 of the Constitution of India.
b. The mere fact that during the period, when an accused person was on bail during trial, there was no misuse of liberty does not per se warrant suspension of execution of sentence and grant of bail. Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 21/35 What really is necessary to be considered by the Court is whether reasons exist, on the merits of the case, to suspend the execution of sentence and, thereafter, grant bail to the appellant.
c. During pendency of an appeal against conviction or sentence or both, temporary or interim or provisional suspension of sentence, on some extremely rare circumstances, is inherent in the jurisdiction of the Appellate Court, under Sec. 389 Cr.P.C, by the doctrine of implied power. Such a recourse must be taken only when pressing circumstances are shown to exist and when the Court is of the opinion that further inquiry would be required before finally disposing of the application for suspension of sentence pending decision on the convict's appeal.
d. it may be equally necessary to mention that circumstances, which show existence of a right within the ambit Article 21 of the Constitution of India, may be considered as valid circumstances, while granting interim suspension pending disposal of an appellant's application seeking suspension of sentence and bail.
e. Notwithstanding the fact that a prisoner's application for suspension of sentence and his consequent release on bail cannot be allowed on merit or has been rejected on merit, the Appellate Court still retains the power to suspend sentence for such period as the Court may consider imperative, particularly, when the Court finds that such suspension of sentence would make the right to life, guaranteed by Article 21, meaningful. Thus, inordinate delay, in disposal of appeal, terminal ailments, marriage of daughter, performing last rites, etc., are circumstances falling in the broader definition of "right to life" and can become valid grounds for suspension of sentence of a prisoner and his. release on bail for a temporary period or until disposal of his substantive appeal."
28. In Suddu Kumar v. State of Bihar as reported in 2017 (3) BLJ 47 (HC), again same question cropped up for consideration, that means to say entitlement of a convict to be released on bail after suspending the sentence in accordance Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 22/35 with Section 389(1) CrPC and during course of consideration the Division Bench considered the criteria having been laid down by single judge in connection with Cr. Appeal (SJ) No. 167/2015 (Ubed, son of Latifur Rahman v. The State of Bihar) and amulet the same in following manner:-
"15. Considering the Supreme Court decision in the case of Surinder Singh (Supra), a Full Bench decision of this Court in the case of Anurag Baitha v. The State of Bihar, reported in 1987 PLJR 485, and taking note of observations made by Supreme Court in the case of Kashmira Singh v. The State of Punjab , reported in (1977) 4 SCC 291, a Single Bench of this Court, dealing with the issue of suspension of sentence during the pendency of appeal on the ground of the Court's inability to take up final hearing of criminal appeals, recently in an order, dated 30.01.2017, in Criminal Appeal (S.J.) 167 of 2015 (Ubed, son of Latifur Rahman v. The State of Bihar ), has concluded that inordinate delay in hearing on substantive appeals because of Court's inability to do so would be extremely relevant factor for grant of bail, and undoubtedly, it would be a good reason to state that there is no practicable possibility of expeditious hearing of the appeal. The Single Bench has held in paragraph nos. 23 and 24 as follows:-
"23. I am further of the view, taking cue from the law laid down by the Full Bench of this Court, in case of Anurag Baitha (supra), and the Supreme Court decision, in case of Surinder Singh Alias Shingara Singh (supra), that in case where the sentence of imprisonment for a term of 10 years, if the appellant has remained in custody post-conviction for a period of 2 years and has remained in custody for a period of 5 years altogether, his application for suspension of sentence and release on bail will be required to be considered favourably except in exceptional circumstance. If the sentence is for a term less than 10 Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 23/35 years and if the appeal is not taken up within a period of 1 years of presentation of the appeal and the convict has remained in custody half the period of sentence, his case for suspension of sentence will be required to be considered favourably.
24. I sum up my discussions as follows:
(i) An appellant convicted of a criminal offence, whose appeal is ending, shall be entitled to a favourable consideration for his liberty and grant of bail on suspension of sentence on the ground of inordinate delay in hearing of the substantive appeals because of the Court's own inability to hear the appeals. There cannot be any straightjacket formula and hard and fast rule of universal application for consideration of bail in such situation. The discretion always lies with the Court to allow or reject any plea for grant of bail during the pendency of appeal, in the background of nature of the case and other attending circumstances.
(ii) Ordinarily, if the appellant has spent half of the term of sentence in custody, in connection with a case, before conviction and after conviction taken together and his appeal is not likely to be heard on merits in near future, he should be released on bail on the ground of possible delay in disposal of the appeal.
(iii) In any event, if the appellant has remained in custody for two (2) years or more after conviction and awaiting for turn of his appeal to come for final hearing and there is no likelihood of the appeal being taken up in near future, his case for release on bail would need favourable consideration on that ground.
(iv) Barring in peculiar and exceptional circumstance, when conviction is for a period of five (5) years or less, the appellant should be admitted to bail at the stage of admission.
(v) This will, however, not apply in case of peculiar and exceptionally heinous crimes.
(vi) In order to make out a case for suspension of sentence, on the ground of delay in hearing of Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 24/35 substantive appeals, a party will have to establish that despite effective steps having been taken by him/her for getting the appeal heard, his prayer for expeditious hearing could not be acceded to."
29. From plain reading of the Section, it is apparent that neither it speaks about its finality nor being an interlocutory one or inter-mediary one as the exercise of power, up to 10 years of sentence is not at all found to be barricaded one, though exceeding 10 years contains mechanism to be followed during course of consideration. Moreover, the activities are found duly influenced with either suspension of conviction or suspension of sentence. It is needless to say that both has got independent identity and have got different yardstick for consideration. So far issue in hand is concerned, it is with regard to suspension of sentence till pendency of an appeal followed with grant of bail, hence, another fact of Section 389(1) regarding suspensions of conviction is being left henceforth.
30. In Hussain v. Union of India with Aasu v. State of Rajasthan reported in (2017) 5 SCC 702, it has been held as follows:-
12. Timely, delivery of justice is a part of human rights. Denial of speedy justice is a threat to public confidence in the administration of justice. Directions of this Court in Noor Mohammed v. Jethanand and Anr. : (2013) 5 SCC 202 are as follows:
Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 25/35 "34. ...Therefore, we request the learned Chief Justice of the High Court of Rajasthan as well as the other learned Chief Justices to conceive and adopt a mechanism, regard being had to the priority of cases, to avoid such inordinate delays in matters which can really be dealt with in an expeditious manner. Putting a step forward is a step towards the destination. A sensible individual inspiration and a committed collective endeavour would indubitably help in this regard. Neither less, nor more".
13. In Thana Singh v. Central Bureau of Narcotics : (2013) 2 SCC 590 this Court directed that liberal adjournments must be avoided and witnesses once produced must be examined on consecutive dates. Directions were also issued for setting up of sufficient laboratories, for disposal of seized narcotics drugs and for providing charge-sheets and other documents in electronic form in addition to hard copies of same to avoid delay.
14. In Akhtari Bi (supra) this Court observed as under:
"5. ...it is incumbent upon the High Courts to find ways and means by taking steps to ensure the disposal of criminal appeals, particularly such appeals where the Accused are in jails, that the matters are disposed of within the specified period not exceeding 5 years in any case. Regular Benches to deal with the criminal cases can be set up where such appeals be listed for final disposal. We feel that if an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the court. In computing the period of 5 years, the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted. There Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 26/35 may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them. We request the Chief Justices of the High Courts, where the criminal cases are pending for more than 5 years to take immediate effective steps for their disposal by constituting regular and special Benches for that purpose.
15. Again in Imtiyaz Ahmad v. State of Uttar Pradesh and Ors. : (2012) 2 SCC 688 it was observed that long delay has the effect of blatant violation of Rule of law and adverse impact on access to justice which is a fundamental right. Denial of this right undermines public confidence in justice delivery.
These observations have been reiterated in recent Constitution Bench judgment in Anita Kushwaha etc. etc. v. Pushap Sudan etc. etc. : (2016) 8 SCC 509- para(s) 31-36. In the said judgment it was noticed that providing effective adjudicatory mechanism, reasonably accessible and speedy, was part of access to justice.
31. During course of consideration, the Apex Court consistently dealt with other issue including upward mode of crime graph, Law Commission report on that score coupled with the basic concept of judicial service as well as legal service, and then propagated as follows:-
29. To sum up: (29.1) The High Courts may issue directions to subordinate courts that-
(29.1.1) Bail applications be disposed of normally within one week;
(29.1.2) Magisterial trials, where Accused are in custody, be normally concluded within six months and sessions trials where Accused are in custody be normally Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 27/35 concluded within two years;
(29.1.3) Efforts be made to dispose of all cases which are five years old by the end of the year;
(29.1.4) As a supplement to Section 436A, but consistent with the spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded such undertrial must be released on personal bond. Such an assessment must be made by the concerned trial courts from time to time;
(29.1.5) The above timelines may be the touchstone for assessment of judicial performance in annual confidential reports. (emphasis added) (29.2) The High Courts are requested to ensure that bail applications filed before them are decided as far as possible within one month and criminal appeals where Accused are in custody for more than five years are concluded at the earliest;
(29.3.) The High Courts may prepare, issue and monitor appropriate action plans for the subordinate courts;
(29.4.) The High Courts may monitor steps for speedy investigation and trials on administrative and judicial side from time to time;
(29.5.) The High Courts may take such stringent measures as may be found necessary in the light of judgment of this Court in Ex. Captain Harish Uppal (supra).
32. However, bail was rejected with a direction to the High Court to hear the appeal expeditiously.
33. In Mithu Pasi v. State of Jharkhand reported in (2018) 11 SCC 196, considering the appellants having been convicted under Section 326 IPC for causing knife injury measuring 1.5" x 3.4" over the victim and for that, they were Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 28/35 under custody for six years against the sentence inflicted for 10 years coupled with the fact that at the time of occurrence, appellants were aged about 19-20 years, the Hon'ble Apex Court observed as follows:-
"2 It is common ground that the Appellants were about 20 years of age on the date of the incident which occurred some 19 years ago. Appellant No. 2- Bhithan Pasi is alleged to have inflicted a knife injury measuring 1.5" x 3.4" inches on the victim. The Appellants have already undergone nearly 6 years of imprisonment without remission out of the 10 years awarded to them by the trial court Under Section 326 of the Indian Penal Code The hearing of the appeal is likely to take some time. In the circumstances we deem it just and proper to direct suspension of the remainder of the sentence awarded to the Appellants. We accordingly direct that in case the Appellants furnish bail bonds in a sum of ` 20,000/- each with two sureties of the like amount to the satisfaction of the trial court, they shall be enlarged from custody pending the disposal of this case.
34. In the circumstances, we deem it just and proper to direct the suspension of remainder of the sentence awarded to the appellants.
35. In Sandeep @ Raja Acharya v. State of Orissa reported in (2018) 11 SCC 715, wherein appellant having been convicted under Section 302/34 IPC and sentenced to undergo RI for life and further, while rejecting the prayer for bail after suspending the sentence at the end of the Apex Court previously Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 29/35 directing the High Court to hear the appeal expeditiously which could not materialized and on account thereof, appellant remained under custody for nine years and further, having no forciveness in getting the appeal disposed of in near future, appellant was released on bail after suspending sentence.
36. In Ash Mohammad v. Shiv Raj Singh as reported in (2012) 9 SCC 446, it has been observed as follows:-
"30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction of liberty of the accused.
37. The principle so decided in Kashmira Singh, Smt. Akhtari Bi and Babu Singh's case has been considered by the Apex Court in the case of Surinder Singh @ Shingara Singh v. State of Punjab as reported in AIR 2005 SC 3669, wherein it Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 30/35 has been observed as follows:-
"9 Similar observations are found in some of the other decisions of this Court which have been brought to our notice. But however, it is significant to note that all these decisions only lay down broad guidelines which the Courts must bear in mind while dealing with an application for grant of bail to an appellant before the Court. None of the decisions lay down any invariable rule for grant of bail on completion of a specified period of detention in custody. Indeed in a discretionary matter, like grant or refusal of bail it would be impossible to lay down any invariable rule or evolve a strait jacket formula. The Court must exercise its discretion having regard to all the relevant facts and circumstances. What the relevant facts and circumstances are, which the Court must keep in mind, has been laid down over the years by the Courts in this country in large number of decisions which are well known. It is, therefore, futile to attempt to lay down any invariable rule or formula in such matters.
38. In the case of Kishori Lal v. Rupa: (2004)7 SCC 638, it has been held as follows:-
"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 against. 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 Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 31/35 matter of routine.
5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused-respondents 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 loses 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." (Emphasis supplied)
39. Reiterating the aforesaid theme in the case of Anil Ari v. State of West Bengal : (2009) 11 SCC 363, it has been held as under:-
"11. 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. In Vijay Kumar's case (supra) it was held that in considering the prayer for bail in a case involving Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 32/35 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.
12. The above position was highlighted in Kishori Lal v. Rupa and Others 2004 : 2004 (7) SCC 638], Vasant Tukaram Pawar v. State of Maharashtra : 2005 (5) SCC 281] and Gomti v. Thakurdas and Ors : 2007 (11) SCC 160)."
40. In the case of Atul Tripathi v. State of UP:
(2014) 9 SCC 177, it has been held as follows:
"15. To sum up the legal position, a. The appellate court, if inclined to consider the release of a convict sentenced to punishment for death or imprisonment for life or for a period of ten years or more, shall first give an opportunity to the public prosecutor to show cause in writing against such release.
b. On such opportunity being given, the State is required to file its objections, if any, in writing.
c. In case the public prosecutor does not file the objections in writing, the appellate court shall, in its order, specify that no objection had been filed despite the opportunity granted by the court.
d. The Court shall judiciously consider all the relevant factors whether specified in the objections or not, like gravity of offence, nature of the crime, age, criminal antecedents of the convict, impact on public confidence in court, etc. before passing an order for release."
(Emphasis supplied)
41. In the case of State of Punjab v. Deepak Mattu:
Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 33/35 (2007) 11 SCC 319, it has been observed that "possible delay in disposal of the appeal and the fact that there are arguable points may not by itself be sufficient ground to grant suspension of sentence."
42. In Akhilesh Kumar Sinha v. State of Bihar:
(2000) 6 SCC 461, it has been held as follows:-
"2. ........... A convicted person being kept in jail pending appeal for such a long period is not a desirable course, but it is only one side of the picture. As the petitioner is found guilty by a trial court of the offence under Section 302, the appellate court can normally presume that he is prima facie guilty of the offence as for suspending the sentence despite the pendency of the appeal. Of course it is open to the appellate court, even at that stage to consider whether it is a fit case for suspending sentence despite such presumption.........."
43. In Vijay Kumar v. Narendra: (2002) 9 SCC 364, it has been held as follows:-
"10. ............ The principle is well settled 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 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."
44. In State of Maharashtra v. Madhukar Wamanrao Smarth : (2008) 5 SCC 721, it has been held as Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 34/35 follows:-
"10. The parameters to be observed by the High Court while dealing with an application for suspension of sentence and grant of bail have been highlighted by this Court in many cases. In Kishori Lal v. Rupa it was observed as follows:
"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 against. 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."
45. After going through the relevant judicial pronouncements referred hereinabove, irrespective of the fact that confinement of a convict at post conviction stage though, attracts influence of Article 21 of the Constitution of India during pendency of appeal having no prospect of early hearing but, its consideration as sole ground for grant of bail is not at all found rather, it may be having cumulative effect if the the facts so warrant. On the other hand, it has been settled at rest that during consideration of the same, all the relevant factors, that Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019 35/35 means to say, gravity of the offence, nature of the crime, manner in which it was committed, age, antecedent and lastly, but having a pivotal role during course of appreciation of public confidence in court. Side by side, it has also been directed that a plausible way be traced out facilitating way of early hearing of the appeal.
46. In the aforesaid background, when the materials having been placed during trial been gone through, restraining to discuss the same, suggests active involvement of the appellants, hence, did not deserve bail. Hence, rejected. Consequent thereupon, I.A No. 2/2019 is rejected.
(Aditya Kumar Trivedi, J)
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