Manipur High Court
Thokchom Dharma Singh @ Paul vs The State Of Manipur on 28 September, 2021
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
Page |1
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
MC(Cril.A.) No. 28 of 2020
Ref:- Cril.A. No. 25 of 2019
Thokchom Dharma Singh @ Paul, aged about 46
years, S/o Th. Gouro Singh, resident of Andro
Kharam Leikai, P.O. Yairipok, P.S. Andro, Imphal
East District, Manipur-795149.
-- -- -- Applicant/Appellant
- VERSUS-
The State of Manipur
-- -- -- Respondent
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the applicant :: Mr. S. Rajeetchandra, Adv.,
For the Respondent :: Mr. H. Samarjit,PP
Date of Hearing and
reserving Judgment & Order :: 12.08.2021
Date of Judgment & Order :: 28.09.2021
JUDGMENT AND ORDER
(CAV)
This petition has been filed by the petitioner
under Section 389 read with Section 482 Cr.P.C. seeking to
release him on bail pending the disposal of the criminal
appeal.
MC(Cril.A.) No. 28 of 2020
Ref:- Crl.A. No. 25 of 2019
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2. By the judgment dated 29.05.2019 in Special
Trial (POCSO) Case No.3 of 2017, the learned Special Judge,
Imphal East, convicted the petitioner-first accused for the
offence under Section 10 of Protection of Children from Sexual
Offences Act, 2012 (for short "POCSO Act"), while acquitting
the second accused under Section 21(2) of the POCSO Act.
On 01.6.2019, the petitioner-appellant was produced before
the learned Special Judge, Imphal East and after hearing the
petitioner and his counsel, the petitioner was sentenced to
under to rigorous imprisonment for a period of 7 years and to
pay fine of Rs.50,000/- under Section 10 of the POCSO Act
and in default to undergo 6 months simple imprisonment. The
learned Special Judge also ordered that the said fine amount if
deposited, the same shall be given to the victim girl as
compensation. That apart, the learned Special Judge also
recommended for provision of victim compensation under
Section 357A of Cr.P.C. to the victim. The learned Special
Judge has also ordered the period which has already
undergone by the petitioner-appellant in the judicial custody
during the period of investigation as well as during the trial, if
any, shall be set-off from the sentence awarded.
MC(Cril.A.) No. 28 of 2020
Ref:- Crl.A. No. 25 of 2019
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3. Aggrieved by the conviction and sentence
imposed on the petitioner, the petitioner has filed Criminal
Appeal No.25 of 2019 before this Court. Pending appeal, the
petitioner has filed the present petition seeking to enlarge him
on bail on medical grounds pending disposal of the appeal.
According to the petitioner, he requires good medical care and
attention for his ailment outside the jail and if he is released on
bail, he will never jump the bail and he will abide by all the
terms and conditions imposed by this Court.
4. The respondent State filed objection stating that
the trial Court after appreciating the evidences produced by
the prosecution as well as the defence side, convicted the
petitioner and sentenced him to undergo 7 years rigorous
imprisonment. It is stated that there is no immediate or urgent
medical emergency that the petitioner-appellant is suffering
from and his ailment, if any, can be taken care of by the
medical staff of the jail.
5. The learned counsel for the petitioner submitted
that the petitioner was on bail during trial and he had fully co-
operated in the trial by putting his personal appearance in
almost all the hearing dates fixed by the trial Court and he
MC(Cril.A.) No. 28 of 2020
Ref:- Crl.A. No. 25 of 2019
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never violated any terms and conditions of his releasing on
bail during the whole proceedings of the trial. The learned
counsel would submit that the petitioner is a diabetic patient
and he requires constant medical care and attention for his
ailment. Furthermore, his health condition has worsened day
by day.
6. The learned counsel further submitted that
detention of the petitioner during pendency of the appeal is a
severe punishment to him and his family members and
therefore prays for bail and that the petitioner undertakes to
abide by the condition imposed by this Court in releasing him
on bail during the pendency of the appeal.
7. Per contra, the learned counsel for the State
submitted that in view of the gravity of the offence committed
by the petitioner, he cannot be released on bail pending
disposal of the appeal. He would submit that the petitioner, as
a matter of right, cannot seek bail and several other similar
factors need to be considered by the Court while granting bail
pending disposal of the appeal. In the case on hand, if the
Court considers the nature of offence, the petitioner is not
entitled to get the bail pending disposal of the appeal.
MC(Cril.A.) No. 28 of 2020
Ref:- Crl.A. No. 25 of 2019
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8. The learned counsel for the respondent State
further submitted that a bare perusal of the medical papers
annexed with the bail application reveals that the medical
papers are stale and irrelevant papers as the same are dated
2016 and that there is no life threatening medical ailment that
the petitioner is stated to be suffering from. According to him,
there is no immediate or urgent medical emergency that the
petitioner is suffering from and thus prayed for dismissal of the
petition.
9. This Court considered the submissions raised by
both parties and also perused the materials available on
record.
10. It appears that the petitioner was convicted under
Section 10 of the POCSO Act and sentenced him to undergo 7
years of rigorous imprisonment and to pay fine of Rs.50,000/-,
in default to undergo 6 months simple imprisonment. The
judgment of the learned Special Judge is dated 29.5.2019 and
sentence was imposed on 01.6.2019 and from 29.5.2019
onwards, the petitioner was in jail
11. Section 389 Cr.P.C. provides:
MC(Cril.A.) No. 28 of 2020
Ref:- Crl.A. No. 25 of 2019
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"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.
(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
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
MC(Cril.A.) No. 28 of 2020
Ref:- Crl.A. No. 25 of 2019
Page |7
(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 the
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."
12. In State of Maharashtra v. Madhukar
Wamanrao Smarth, reported in (2008) 5 SCC 721, the
Hon'ble Supreme Court held:
MC(Cril.A.) No. 28 of 2020
Ref:- Crl.A. No. 25 of 2019
Page |8
"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 [(2004) 7 SCC 638 : 2004
SCC (Cri) 2021] it was observed as follows:
(SCC p. 639, para 4)
"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
MC(Cril.A.) No. 28 of 2020
Ref:- Crl.A. No. 25 of 2019
Page |9
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."
The above position was reiterated in
Vasant Tukaram Pawar v. State of
Maharashtra [(2005) 5 SCC 281 : 2005
SCC (Cri) 1052].
11. It is true that the parameters to be applied
in cases where life or death sentence is
imposed, may not be applicable to other cases.
But, the gravity of the offence, the sentence
imposed and several other similar factors need
to be considered by the court. The fact that the
accused was on bail during trial is certainly not a
relevant factor. This position has been fairly
conceded by learned counsel for the
respondents. The reasons indicated by the High
Court for granting bail in our opinion do not
satisfy the parameters. It needs to be pointed
MC(Cril.A.) No. 28 of 2020
Ref:- Crl.A. No. 25 of 2019
P a g e | 10
out that the trial court considering the gravity of
the offence has directed the sentences to run
consecutively. This aspect has also not been
considered by the High Court. In the
circumstances, the impugned order in each case
is indefensible and deserves to be set aside
which we direct. But considering the fact that the
High Court had not applied correct principles it
would be proper for the High Court to reconsider
the matter and for that purpose the matter is
remitted to the High Court. Needless to say, the
High Court shall consider all the relevant
aspects and pass orders in accordance with law.
13. In Gajraj Yadav v. Rajendra Singh @ Deena
and others, reported in 2008 (7) Supreme 573, the Hon'ble
Supreme Court held:
"13. The parameters governing Section 389 of the
Code were highlighted in Kishori Lal v. Rupa [(2004) 7
SCC 638 : 2004 SCC (Cri) 2021], Vasant Tukaram
Pawar v. State of Maharashtra [(2005) 5 SCC 281 :
MC(Cril.A.) No. 28 of 2020
Ref:- Crl.A. No. 25 of 2019
P a g e | 11
2005 SCC (Cri) 1052] and Gomti v. Thakurdas [(2007)
11 SCC 160 : (2008) 1 SCC (Cri) 644] .
14. The High Court noted that except Girdhari other
appellants (present respondents) were on bail during
trial.
15. The order directing suspension of sentence and
grant of bail is clearly unsustainable and is set aside.
Learned counsel for the respondent-accused stated that
fresh applications shall be moved before the High Court.
In case it is done, it goes without saying, that the High
Court shall consider the matter in the proper perspective
in accordance with law.
14. In Sunil Kumar v. Vipin Kumar and others,
reported in (2014) 8 SCC 868, the Hon'ble Supreme Court
held:
"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 CrPC to
enlarge the respondents on bail. Firstly, both the
MC(Cril.A.) No. 28 of 2020
Ref:- Crl.A. No. 25 of 2019
P a g e | 12
criminal appeal and criminal revision filed by
both the parties are pending before the 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.
14. We are of the opinion that the High Court
has taken into consideration all the relevant
facts including the fact that the chance of the
appeal being heard in the near future is
extremely remote, hence, the High Court has
released the respondents on bail on the basis of
sound legal reasoning. We do not wish to
interfere with the decision of the High Court at
this stage. The appeal is dismissed accordingly.
15. In Navjot Singh Sidhu v. State of Punjab and
another, reported in (2007) 2 SCC 574, the Hon'ble Supreme
Court held:
MC(Cril.A.) No. 28 of 2020
Ref:- Crl.A. No. 25 of 2019
P a g e | 13
"4. Before proceeding further it may be seen
whether there is any provision which may enable
the Court to suspend the order of conviction as
normally what is suspended is the execution of
the sentence. Subsection (1) of Section 389 says
that 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. This
sub-section confers power not only to suspend
the execution of sentence and to grant bail but
also to suspend the operation of the order
appealed against which means the order of
conviction. This question has been examined in
considerable detail by a three-Judge Bench of
this Court in Rama Narang v. Ramesh Narang
[(1995) 2 SCC 513] and Ahmadi, C.J., speaking
for the Court, held as under (para 19 of the
reports): (SCC p. 527)
MC(Cril.A.) No. 28 of 2020
Ref:- Crl.A. No. 25 of 2019
P a g e | 14
"19. That takes us to the question whether
the scope of Section 389(1) of the Code
extends to conferring power on the
appellate court to stay the operation of the
order of conviction. As stated earlier, if the
order of conviction is to result in some
disqualification of the type mentioned in
Section 267 of the Companies Act, we
see no reason why we should give a
narrow meaning to Section 389(1) of the
Code to debar the court from granting an
order to that effect in a fit case. The
appeal under Section 374 is essentially
against the order of conviction because
the order of sentence is merely
consequential thereto; albeit even the
order of sentence can be independently
challenged if it is harsh and
disproportionate to the established guilt.
Therefore, when an appeal is preferred
under Section 374 of the Code the appeal
is against both the conviction and
MC(Cril.A.) No. 28 of 2020
Ref:- Crl.A. No. 25 of 2019
P a g e | 15
sentence and therefore, we see no
reason to place a narrow interpretation on
Section 389(1) of the Code not to extend
it to an order of conviction, although that
issue in the instant case recedes to the
background because High Courts can
exercise inherent jurisdiction under
Section 482 of the Code if the power was
not to be found in Section 389(1) of the
Code. We are, therefore, of the opinion
that the Division Bench of the High Court
of Bombay was not right in holding that
the Delhi High Court could not have
exercised jurisdiction under Section 482
of the Code if it was confronted with a
situation of there being no other provision
in the Code for staying the operation of
the order of conviction. In a fit case if the
High Court feels satisfied that the order of
conviction needs to be suspended or
stayed so that the convicted person does
not suffer from a certain disqualification
MC(Cril.A.) No. 28 of 2020
Ref:- Crl.A. No. 25 of 2019
P a g e | 16
provided for in any other statute, it may
exercise the power because otherwise the
damage done cannot be undone; the
disqualification incurred by Section 267 of
the Companies Act and given effect to
cannot be undone at a subsequent date if
the conviction is set aside by the
appellate court. But while granting a stay
or suspension of the order of conviction
the Court must examine the pros and
cons and if it feels satisfied that a case is
made out for grant of such an order, it
may do so and in so doing it may, if it
considers it appropriate, impose such
conditions as are considered appropriate
to protect the interest of the shareholders
and the business of the company."
....
6. The legal position is, therefore, clear that an appellate court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the MC(Cril.A.) No. 28 of 2020 Ref:- Crl.A. No. 25 of 2019 P a g e | 17 attention of the appellate court to the consequences that may arise if the conviction is not stayed. Unless the attention of the court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. Further, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case.
16. In the instant case, the petitioner has filed the present petition seeking to enlarge him on bail pending disposal of the appeal on medical grounds. Therefore, now the point that arises for consideration is whether the petitioner is entitled to get bail pending disposal of the appeal on medical grounds.
17. Section 389 Cr.P.C. 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 Cr.P.C. is the requirement for the appellate Court to record reasons in writing for ordering suspension of MC(Cril.A.) No. 28 of 2020 Ref:- Crl.A. No. 25 of 2019 P a g e | 18 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. In the case on hand, the petitioner has pleaded that he is a diabetic patient and he requires constant medical care and attention, which is not available in the jail. Though the respondent State contended that there is no immediate or urgent medical emergency that the petitioner is suffering from and his ailment, if any, can be taken care of by the medical staff of the jail, nothing has been produced by the respondent State to prove that there was no life threatening medical ailment and that the medical staff are giving good medical treatment to the petitioner. Though no recent medical records have been produced by the petitioner, since the factum of petitioner's ailment has not been denied by the respondent State, it would be appropriate to accept the plea of the petitioner that he requires constant medical care and attention.
MC(Cril.A.) No. 28 of 2020 Ref:- Crl.A. No. 25 of 2019
P a g e | 19
18. In the instant case, the learned counsel for the petitioner has pointed out certain infirmities in the judgment impugned. In the grounds of appeal also, the petitioner has pointed out infirmities in the judgment of the learned Special Judge. According to the learned counsel for the petitioner- appellant, there are arguable points involved in the appeal.
19. Considering the given facts and circumstances of the case; taking note of the fact that there are arguable points involved in the appeal as contended by the learned counsel for the petitioner; the appeal is not likely to be taken up for final hearing in the near future; the petitioner was in jail for more than two years after conviction; the petitioner needs medical care and attention for his ailment and also the undertaking given by him that he will abide by the conditions imposed by this Court, this Court is satisfied in granting the relief of bail pending disposal of the appeal.
20. Accordingly, the petition is allowed and the petitioner is directed to be enlarged on bail on condition that he shall execute a bond for a sum of Rs.50,000/- (Rupees fifty Thousand only) with two sureties each for a like sum to the satisfaction of the learned Special Judge (POCSO), Imphal MC(Cril.A.) No. 28 of 2020 Ref:- Crl.A. No. 25 of 2019 P a g e | 20 East, Manipur, and, on further condition that the petitioner shall appear before the said Court on the first working day of every month at 10.30 A.M. without fail. The petitioner shall not leave the place of his residence without prior permission of the Trial Court and shall ordinarily reside at a place of his residence.
21. It is made clear that this Court granted bail pending disposal of the appeal purely on medical grounds and during the bail period, the petitioner shall not indulge in any criminal activities. If the petitioner indulges in any such criminal activities pending disposal of the appeal, the respondent State is at liberty to move an application for cancellation of bail. Both the petitioner and the respondent State are directed to cooperate for early disposal of the appeal.
JUDGE FR/NFR Sushil SHAMURAILA Digitally signed by SHAMURAILATPAM TPAM SUSHIL SUSHIL SHARMA Date: 2021.10.01 SHARMA 11:40:49 +05'30' MC(Cril.A.) No. 28 of 2020 Ref:- Crl.A. No. 25 of 2019