Himachal Pradesh High Court
Jaggu vs State Of Himachal Pradesh Il on 4 March, 2024
Jaggu Versus State of Himachal Pradesh Il Criminal Appeal No.114 of 2022 .
04.03.2024 Present: Mr. Kishore Pundir, Legal Aid Counsel, for the appellant.
Mr. Prashant Sen, Deputy Advocate General, for the respondent-State.
Cr.MP No.4039 of 2023 Applicant-convict [Jaggu] has filed an application under Section 389 of the Code of Criminal Procedure for suspension of operation of impugned judgment and conviction dated 23.04.2022 passed by learned Additional Sessions Judge-I, Kangra at Dharamshala, Circuit Court at Indora (HP), in Sessions Case No.21-N/VII/2013/2010, whereby, the applicant-
accused has been held guilty of the offence punishable under Section 307 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/- and in default of payment of fine, to further undergo simple imprisonment for a period of one year for the commission of offence punishable under Section 307 of the Indian Penal Code and with the prayer for releasing the applicant-accused during the pendency of the appeal.
2. The case set up by Mr. Kishore Pundir, Legal Aid Counsel, is that the applicant-accused is praying for ::: Downloaded on - 22/03/2024 20:31:58 :::CIS suspension of sentence on the plea that the applicant-
accused has undergone 2 years 3 months and 21 days .
of sentence as of now and in view of Section 436A, the benefit of release may be extended.
3. In order to appreciate the contention of the petitioner, it is relevant to take note of the provisions of Section 436A of the Code of Criminal Procedure, which read as under:
r436A. Maximum period for which an undertrial prison can be detained.
Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties;
Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties;
Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.
4. The prayer for suspension of sentence, is in considered view of this Court, is not tenable ::: Downloaded on - 22/03/2024 20:31:58 :::CIS for three reasons; (i) the plea of having undergone 2 years 3 months and 21 days of sentence will not confer .
an ipso facto right for suspension of sentence when, the mandate of Section 436A of the Code of Criminal Procedure is not available to a convict. A reference to Section 436A reveals that the benefit is available to an undertrial, who has undergone detention for a period extending up to one-half of the maximum period of imprisonment specified under law. In the instant case, once the petitioner/applicant is a convict and not an undertrial, therefore, the plea based on Section 436A is misconceived; and (ii) the claim for release or suspension of sentence, post conviction, without any material on record to show that the impugned judgement dated 23.04.2022 passed by the Court below suffers from any legal infirmity or contain perverse findings then, in absence of any material placed on record or submitted during arguments, the plea for suspension of sentence is not tenable; and (iii) once the conviction under Section 307 of the Indian Penal Code was imposed after due appreciation of the factual aspects and the evidence on record, therefore, the prayer for suspension of sentence, is not tenable, as the principle that bail is a rule and jail is an exception is not applicable in case of a convict and mere pendency of ::: Downloaded on - 22/03/2024 20:31:58 :::CIS appeal cannot be the sole factor for suspension of sentence and moreover when in the instant case, no .
other extenuating circumstance has been pointed out justifying suspension of sentence at this stage.
5. In view of the above discussion, the prayer for suspension of sentence, by the convict, is without any merit and the same is accordingly dismissed.
r Criminal Appeal No. 114 of 2022.
List for hearing after four weeks.
(Ranjan Sharma) Judge March 04, 2024 (Bhardwaj/tm) ::: Downloaded on - 22/03/2024 20:31:58 :::CIS