Jammu & Kashmir High Court
Ulfat Hussain & Ors vs Ut Of J&K on 16 June, 2022
Author: Mohan Lal
Bench: Mohan Lal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Crl A(S) No. 7/2022
CrlM No. 1035/2022
Reserved on: 14.06.2022
Pronounced on: 16.06.2022
Ulfat Hussain & Ors. ....Petitioner/Appellant(s)
Through :- Mr. Ajay Sharma, Advocate
V/s
UT of J&K ....Respondent(s)
Through :-
Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
ORDER
16.06.2022 Crl A(S) No. 7/2022
1. Issue notice to the respondents in the main appeal.
2. List on 22.07.2022.
Meanwhile, call for the record from the court below.
CrlM No. 1035/20223. The instant Criminal Appeal has been directed against the judgment of conviction and order of sentence dated 30.05.2022, rendered by the Court of learned Principal Sessions Judge, Poonch in case file No. 19/Sessions titled „State vs Ulfat Hussain & Ors‟ arising out of FIR No. 205/2013 of Police Station, Surankote whereby the appellants have been found guilty for commission of offences punishable under Sections 316, 324, 323 r/w Section 34 of the RPC and accordingly all the accused persons other than Naseem Akhter were convicted for the commission of offence u/s 316, 324, 323, 34 RPC and are sentenced to undergo simple imprisonment of three years and a fine of Rs. 2000/, while as accused Naseem Akhter was sentenced for a simple imprisonment of six months and fine of Rs. 1000/-for offences u/s 324, 323, 34 RPC.
4. Feeling aggrieved of the impugned judgment of conviction, appellants/convicts have assailed it‟s correctness, propriety and legality on the grounds, that as a result of miss-appreciation of facts and misapplication of law so far as the finding of the trial court relating to holding appellants guilty of having committing of offences under Sections 316, 324, 323, 34 RPC and convicting them of the same is bad in the eyes of law, therefore, prayed that the present appeal be allowed and the judgment of learned Principal Sessions Judge, Poonch be set aside.
5. Alongwith the appeal, appellants/convicts have filed application for suspension of conviction and sentence pending the hearing of appeal, with further prayer for ordering them release on bail primarily on the grounds that there is no likelihood of the appeal being heard in the near future, and in view of the law laid down by the Supreme Court wherein it has been held that when a convicted person is sentenced to a fixed period of sentence, on filing of appeal, suspension of sentence should be considered liberally unless there are exceptional circumstances; that the reasoning given by the trial court while rejecting the arguments raised before it by the defence are not based on correct appreciation of evidence and law; that the appellants are in custody since 30.05.2022, therefore, the present application be allowed and sentence of the appellants may kindly be suspended.
6. Sh. Ajay Sharma, learned counsel for appellants/convicts to support the case of appellants/convicts for suspension of their sentence of conviction and their released on bail, has strenuously argued, that the prayer for suspension of sentence of conviction and ordering of the appellants/convicts on bail should be considered liberally unless there is any statutory restriction. It is argued, that when the sentence is of life imprisonment, the consideration for suspension of sentence should be of different approach, and when the appellate court finds that due to practical reasons, the appeal could not be disposed of expeditiously, the appellate court must bestow special concern in the matter of suspending the sentence so as to make the appeal right, meaningful and effective, but if for any reason the sentence of limited duration cannot be suspended, every endeavor should be made to dispose of the appeal on merits. It is further argued, that by the judgment and order of this court passed in "Vajida Bano and ors v/s State in CrlA (S) No. 05/2019, CrlM No. 853/2019" it is manifest, that even the sentence of ten (10) years rigorous imprisonment was suspended against the accused persons who were found guilty for commission of offences u/ss 364/120-B/201 RPC.
7. Heard & considered. Section 389 of Code of Criminal Procedure deals with the provisions of suspension of sentence pending the appeal. For the sake of convenience Sec. 389 Cr.PC is reproduced hereunder:-
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 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.] (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-
(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of Appellate Court under Sub-Section(1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.
Cursory glance of Section 389 Cr.PC makes the legal proposition abundantly clear, that pending an appeal preferred by a convicted person notice shall only be issued to the Public Prosecutor/State in case the convict is punished for offences punishable with death or imprisonment for life or imprisonment for a term not less than ten (10) years, which clearly connote that if the convict is punished with imprisonment for a term less than 10 years no notice is required to be given to the Public Prosecutor/State in regard to the application filed by the convict/accused for suspension of his sentence and his release on bail.
In the case of Bhagwan Rama Shinde Gosai And Others v. State Of Gujarat [(1999) 4 Supreme Court Cases 421], Hon‟ble Supreme Court while discussing the power and scope of section 389 Cr.PC regarding suspension of sentence pending the appeal filed by the convict, and while holding that the prayer for suspension of sentence should be considered liberally unless there is any statutory restriction, and while suspending the sentence and directing appellant/accused/convict to be released on bail found guilty for commission of offences u/s 392 r/w section 397 IPC for rigorous imprisonment of 10 years by the trail court, in paras 3&4 of the judgment held as under:-
3. When a convicted person is sentenced to fixed period of sentence and when he files appeals 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 of suspending the sentence. So as tomake the appeal right meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted.
4. In this case as the High Court was not inclined to hear the appeal expeditiously we are of the view that the sentence passed on appellants can be suspended on some stringent conditions. We, therefore, suspend the sentence and direct the appellants to be released on bail on each of them executing a bond to the satisfaction of Additional Sessions Judge, Nadiad. We direct the appellants to report to Kapadwang Police Station on all Mondays and Thursdays between 4.00p.m. and 6.00 p.m. until disposal of the appeal pending before the High Court.
Ratio of the judgment (Supra) makes it manifest, that Section 389 Cr.PC does not contain any "statutory restriction" in suspension of sentence and granting of bail to the accused/convict and the prayer should be considered liberally and the Appellate Court may impose restrictions considering the gravity of offence.
Similarly, in the case of Vajida Bano and Ors v. State Through Advocate General the Coordinate Bench of this Court while relying upon the judgment of Bhagwan Rama Shinde Gosai‟s (Supra) suspended the sentence of appellant/convicts, convicted and sentenced in FIR 09/2014 for commission of offences u/ss 363/317/ 302/ 120-B & 201 RPC of P/S Kargil.
8. Keeping in view the fact that the applicants are in custody since 30.05.2022, there is no immediate prospect of the appeal being heard in near future, a fit and proper case for suspension of sentence is made out.
9. As a sequel to the aforesaid discussion, I am of the considered opinion that appellants/convicts have made out a strong case for suspension of sentence and grant of bail in their favour. I, therefore, suspend the sentence inflicted upon the appellants/convicts and direct them to be released on bail by executing surety bonds in the sum of Rs. 50000/- to the satisfaction of Registrar Judicial of this court with the direction to furnish personal recognizance of like amount before Superintendent District Jail, Poonch where the appellants/convicts are presently serving the sentence term in judicial lockup. It is further ordered, that the appellants/convicts shall appear before this court on each and every date of hearing except for the reasons beyond their control.
10.Application is disposed of.
(Mohan Lal) Judge Jammu:
16.06.2022 Vijay