Andhra Pradesh High Court - Amravati
Boya Nallabothula Manohar vs The State Of Andhra Pradesh on 5 March, 2024
IN THE HIGH COURT OF ANDHRA PRADESH, AMARAVATI
****
CRIMINAL PETITION No.1117 of 2024
Between:
Boya Nallabothula Manohar, S/o. Moulali, Aged 30 years,
R/o Seerama Nagar, Dhone earlier worked as Court Assistant in Special Judicial
Magistrate of II class Court, Dhone, Nandyal District.
...PETITIONER/ACCUSED(S)
AND
The State Of Andhra Pradesh, Rep. by its Station House Officer,
Dhone Town, P.S, Amaravathi. Rep by its PP High Court of Andhra Pradesh
Amaravathi.
...RESPONDENT/COMPLAINANTS
DATE OF ORDER PRONOUNCED: 05-03-2024
SUBMITTED FOR APPROVAL:
THE HON'BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copies of judgment may be
marked to Law Reporters / Journals? Yes/No
3. Whether His Lordship wish to
see the fair copy of the Judgment? Yes/No
______________________________________
JUSTICE VENKATA JYOTHIRMAI PRATAPA
2
* THE HON'BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA
+ CRIMINAL PETITION No.1117 of 2024
% 05-03-2024
Between:
Boya Nallabothula Manohar, S/o. Moulali, Aged 30 years,
R/o Seerama Nagar, Dhone earlier worked as Court Assistant in Special Judicial
Magistrate of II class Court, Dhone, Nandyal District.
...PETITIONER/ACCUSED(S)
AND
The State Of Andhra Pradesh, Rep. by its Station House Officer,
Dhone Town, P.S, Amaravathi. Rep by its PP High Court of Andhra Pradesh
Amaravathi.
...RESPONDENT/COMPLAINANTS
! Counsel for Petitioner : Sri Lakshmikanth Reddy Desai
^ Counsel for Respondent : Sri K.Anand Kumar,
Asst.Public Prosecutor (State)
< Gist:
> Head Note:
? Cases referred:
1. (1977) 4 SCC 291
2. (1999) 4 SCC 421
3. 2009 SCC OnLine SC 267
4. (2001) 10 SCC 463
5. (2001) 10 SCC 338
6. (2004) 7 SCC 638
7. (2005) 5 SCC 281
8. (2007) 11 SCC 160
9. (2008) 5 SCC 230
10. AIR 2020 SC 3995
11. (2023) 6 SCC 123
12. 1978 (1) SCC 579
This Court made the following:
3
IN THE HIGH COURT OF ANDHRA PRADESH ::
AMARAVATI
(Special Original Jurisdiction)
3396
TUESDAY ,THE FIFTH DAY OF MARCH
APHC010091472024 TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA
CRIMINAL PETITION NO: 1117 OF 2024
Between:
Boya Nallabothula Manohar, S/o. Moulali, Aged 30 years,
R/o Seerama Nagar, Dhone earlier worked as Court Assistant in Special Judicial
Magistrate of II class Court, Dhone, Nandyal District.
...PETITIONER/ACCUSED(S)
AND
The State Of Andhra Pradesh, Rep. by its Station House Officer,
Dhone Town, P.S, Amaravathi. Rep by its PP High Court of Andhra Pradesh
Amaravathi.
...RESPONDENT/COMPLAINANTS
The Court made the following:
ORDER:
The instant petition under Sections 437 and 439 read with Section 389(2) of Code of Criminal Procedure, 19731 has been filed by the Petitioner/Accused to release him on bail by suspending the execution of sentence passed in C.C.No.916 of 2016 by the Court of Judicial Magistrate of First Class, Dhone, dated 01.11.2023, pending disposal of Criminal Appeal No.167 of 2023 on the file of the Court of I Additional Sessions Judge, Kurnool.
2. The facts that led to filing of the present petition, in brief, are as follows:
a. A case in C.C.No.916 of 2016 on the file of the Court of Judicial Magistrate of First Class, Dhone, was registered against the Petitioner for the offences punishable under Sections 468, 409 and 420 of Indian Penal Code,18602 and after completion of trial, on hearing both sides and on appreciation of evidence, the learned Magistrate convicted the Petitioner/Accused and sentenced him to undergo simple imprisonment for two years and also to pay fine of Rs.10,000/-, in default, to undergo simple imprisonment for one month, for the offence punishable under 1 for short „the Code‟ 2 for short „IPC‟ 4 Section 409 IPC. Petitioner was also convicted and sentenced to undergo simple imprisonment for two years for the offence punishable under Section 465 IPC.
b. Impugning the order of conviction and sentence, the Petitioner/Accused preferred Criminal Appeal No.167 of 2023 before the Court of District and Sessions Judge, Kurnool. Petitioner/Accused filed Crl.M.P.No.508 of 2023 in Crl.A.No.167 of 2023 under Section 389(1) of Cr.P.C seeking to suspend the sentence imposed against him, during pendency of the appeal. The said petition was dismissed on 30.11.2023 c. As the sentence was not suspended, the Petitioner was sent to jail on 01.12.2023 and he is undergoing imprisonment in Central Jail, Kadapa.
d. The Petitioner filed a petition in CFR No.34 of 2024 in Crl.A.No.167 of 2023 seeking bail before the learned Sessions Judge, Kurnool and the same was also dismissed.
Arguments advanced at the Bar:
3. Heard Sri Lakshmikanth Reddy Desai, leaned counsel for the Petitioner and Sri K. Anand Kumar, the learned Assistant Public Prosecutor for the Respondent.
4. Learned counsel for the Petitioner submits that learned trial Judge has failed to appreciate the evidence on record in right perspective and that Petitioner was on bail throughout the trial and the learned trial Judge suspended the sentence and released the Petitioner on bail, from the date of judgment by exercising the power under Section 389(3) of the Code. Learned counsel further submits that the crucial documents Exs.P.3 to P.5 were not sent to the expert to know the truth or otherwise to justify the conviction for the offence under Section 465 and 409 of IPC, beyond reasonable doubt. Learned counsel would also point out that Petitioner was terminated from the employment and that there is no scope for the Petitioner to commit the similar offence or to flee from the jurisdiction of the Court to serve the sentence, in case of dismissal of the appeal. Learned counsel further states that, Petitioner has permanent abode and is ready to furnish the sureties to the satisfaction of the Court, to assure his presence as and when directed. Learned 5 counsel finally submits that they have made out prima facie grounds in appeal and it is a fit case to suspend the sentence passed against the Petitioner.
5. Contrasting the same, learned Assistant Public Prosecutor would submit that, as rightly observed by the Appellate Court while dismissing the petition that the Prosecution has established the guilt of the accused beyond all reasonable doubt and there are no infirmities in the judgment of the trial Court. Accordingly prays for dismissal of the petition.
Point for Determination
6. Having heard the submissions and on perusal of the material of the record, the point that would arise for determination is:
Whether the Petitioner is entitled to be released on bail by suspending the sentence passed against him in C.C.No.916 of 2016 by the Court of Judicial Magistrate of First Class, Dhone, pending disposal of the Criminal Appeal No.167 of 2023 before the Court of I Additional Sessions Judge, Kurnool?
Legal Analysis by the Court:
Maintainability of the petition under Section 389(2) before this Court when the appeal is pending before the District Court:
7. Accused was found guilty for the commission of forgery and criminal breach of trust and was convicted for the offences punishable under Sections 465 and 409 IPC. The amount involved in the present case is Rs.46,900/- + Rs.6,070/-. The material on record would further show that the Accused paid the said amount to the Department.
8. During the course of hearing, learned Assistant Public Prosecutor would submit that, Petitioner would have preferred Revision against the order of the Appellate Court dismissing his petition for suspension of sentence and that the present petition is not maintainable. Refuting the same, learned counsel for the Petitioner states that they have not filed the present petition challenging the impugned order in Crl.M.P.No.508 of 2023 in Crl.A.No.167 of 2023 passed by the Appellate Court. Learned counsel further would argue that the present petition is 6 well maintainable under Section 389(2) of the Code and that this Court has ample authority to release the Petitioner on bail by suspending the sentence, when the Accused preferred an appeal to the Court Subordinate to the High Court.
9. At this juncture, for ready reference, it is desirable to extract Section 389 of the Code, which reads as under:
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 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.
10. Section 389(1) of the Code lays down the power of an Appellate Court to deal with a petition seeking suspension of execution of sentence and release of a person in confinement, pending disposal of the appeal. Coming to Section 389(2) of the Code, this provision is vivid as to the authority of the High Court to exercise the very same power of the Appellate Court as envisaged under Section 389(1) of the Code, when the appeal is pending before a Court Subordinate to the High Court. In the case on hand, the appeal preferred by the Accused is pending before the Appellate Court, which is a District Court, which is a Court that is subordinate to the High 7 Court. In that view, this Court also has jurisdiction to entertain the present petition filed under Section 389(2) of the Code, as clear from the very wording of the provision.
11. Further, before delving into the point in issue, it is apt to recollect the parameters for consideration of the plea of suspension of sentence, pending disposal of the appeal. When an appeal is preferred against conviction and sentence passed against the Accused, the Appellate Court has ample power and discretion to suspend the sentence. Needless to say, such discretion has to be exercised judiciously depending on the facts and circumstances of each case. There is no strait-jacket formula to exercise such discretion. It is a settled proposition of law that there is a difference between grant of bail under Section 439 of the Code before concluding the trial and suspension of sentence and release of the individual under Section 389 of the Code, post-conviction.
12. At this juncture, it is beneficial to refer to a few judgments of the Hon‟ble Apex Court on the manner in which the power enshrined under Section 389 is to be exercised.
13. A reference may be further made to the decision of the Hon‟ble Supreme Court of India in Kashmira Singh v. State of Punjab3, way back from the year 1977, wherein, it was observed as follows:
"2.....Now, the practice in this Court as also in many of the High Court has been not to release on bail a person who has been sentenced to life imprisonment for an offence under 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 3 (1977) 4 SCC 291 8 the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified? Would it be just at all for the Court to tell a person: `We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?' What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not 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."
(emphasis supplied)
14. In Bhagwan Rama Shinde Gosai v. State of Gujarat4, the Hon‟ble Apex Court has stated that when a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances or statutory restrictions. It was observed as under:
"3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. 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 a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of 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 to make the appeal right, meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted."
(emphasis supplied) 4 (1999) 4 SCC 421 9
15. A two Judge Bench of the Hon‟ble Apex Court in Angana and another v. State of Rajasthan5, comprehensively dealt with the scope and manner of exercise of the discretion by the Appellate Court under Section 389 of the Code. In Angana (referred supra), the Sessions Court acquitted most of the accused, after trial, except the Appellants therein who were convicted under Section 326 read with 34 IPC and sentenced to four years‟ rigorous imprisonment with a fine of Rs.2,000/-. The High Court dismissed the petition filed for suspension of sentence. In that context, the Accused carried the matter to the Hon‟ble Apex Court in Criminal Appeal. While deciding the said case, by exercising the power under Article 136 of the Constitution of India, the Hon‟ble Apex Court allowed the appeal, suspended the sentence, and directed the Accused be released on bail on some conditions. While dealing with that matter, Hon‟ble Apex Court held as follows:
"14. When an appeal is preferred against conviction in the High Court, the Court has ample power and discretion to suspend the sentence, but that discretion has to be exercised judiciously depending on the facts and circumstances of each case. While considering the suspension of sentence, each case is to be considered on the basis of nature of the offence, manner in which occurrence had taken place, whether in any manner bail granted earlier had been misused. In fact, there is no strait jacket formula which can be applied in exercising the discretion. The facts and circumstances of each case will govern the exercise of judicial discretion while considering the application filed by the convict under Section 389 of Criminal Procedure Code."
(emphasis supplied)
16. The Hon‟ble Apex Court in Takhat Singh and Others v. State of M.P.,6 while releasing the accused on bail, during pendency of appeal before the High Court, observed as follows:
"2....the appellants are already in jail for over three years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore."
(emphasis supplied)
17. In Suresh Kumar and Others v. State (NCT of Delhi)7, where the appellants were convicted under Section 307 read with Section 34 of IPC and each was sentenced to imprisonment for a period of three years and to pay fine of Rs. 5 2009 SCC OnLine SC 267 6 (2001) 10 SCC 463 7 (2001) 10 SCC 338 10 2000/-, when they moved an application under Section 389 of the Code for suspension of the sentence of imprisonment, the High Court had rejected the application by stating "Heard learned counsel for the parties. Dismissed". The Hon‟ble Apex Court following the observations made in the Bhagwan Rama Shinde Gosai (supra), while allowing the appeal filed by the convict, had kept in abeyance the order of conviction passed by the trial court till the disposal of the appeal filed by the convict and also had directed the release of the convict on bail.
18. In Kishori Lal v. Rupa and Others8, the Hon‟ble Apex Court indicated the factors that are required to be considered by the Courts while granting benefit under Section 389 in cases involving serious offences. It is useful to refer to the observations made therein. They are "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.
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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. ..."
(emphasis supplied) 8 (2004) 7 SCC 638 11
19. The aforesaid view is reiterated by the Hon‟ble Apex Court in Vasant Tukaram Pawar v. State of Maharashtra9, and Gomti v. Thakurdas and Others.10
20. In Sidharth Vashisht @ Manu Sharma v. The State (N.C.T. of Delhi)11, Hon‟ble Supreme Court, after considering all the earlier decisions on the issue of consideration of an application under Section 389 of the Code, has concluded, in the context of conviction under Section 302 IPC, the seriousness of the offence, the manner in which it was committed and the gravity come in the way of suspending the sentence and granting bail.
21. In Preet Pal Singh vs. State of Uttar Pradesh12, wherein Accused was sentenced to undergo life imprisonment and was granted bail, held as follows:
"25. Section 389 provides 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. Of course, in view of the mandate of Section 389(3) of the CrPC, the principles are different in the case of sentence not exceeding three years and/or in the case of bailable offences.....
26. As the discretion under Section 389(1) is to be exercised judicially, the appellate court is obliged to consider whether any cogent ground has been disclosed, giving rise to substantial doubts about the validity of the conviction and whether there is likelihood of unreasonable delay in disposal of the appeal, as held by this Court in Kashmira Singh v. State of Punjab [Kashmira Singh v. State of Punjab, (1977) 4 SCC 291 : 1977 SCC (Cri) 559] and Babu Singh v. State of U.P. [Babu Singh v. State of U.P., (1978) 1 SCC 579 : 1978 SCC (Cri) 133] ****
31. Even though detailed examination of the merits of the case may not be required by courts while considering an application for bail but, at the same time, exercise of jurisdiction has to be based on well settled principles and in a judicious manner and not as a matter of course as held by this Court in Chaman Lal v. State of U.P. and Anr.(2004) 7 SCC 525"
(emphasis supplied)
22. It is also relevant to refer to the decision of the Hon‟ble Apex Court in Omprakash Sahni v. Jai Shankar Chaudhary & Anr 13. It is a case of murder, and the Accused was found guilty for the offence under Section 302 IPC and was 9 (2005) 5 SCC 281 10 (2007) 11 SCC 160 11 (2008) 5 SCC 230 12 AIR 2020 SC 3995 13 (2023) 6 SCC 123 12 sentenced to undergo life imprisonment. The High Court allowed and suspended the substantive order of life imprisonment and ordered release of the Accused on bail, pending disposal of the Criminal Appeal. In that view, Hon‟ble Apex Court observed difference between release of a person on bail at pre-conviction and post-conviction and held thus;
"22. Thus, when we speak of suspension of sentence after conviction, the idea is to defer or postpone the execution of the sentence. The purpose of postponement of sentence cannot be achieved by detaining the convict in jail; hence, as a natural consequence of postponement of execution, the convict may be enlarged on bail till further orders.
***
24. From perusal of Section 389 of the CrPC, it is evident that save and except the matter falling under the category of sub-section 3 neither any specific principle of law is laid down nor any criteria has been fixed for consideration of the prayer of the convict and further, having a judgment of conviction erasing the presumption leaning in favour of the accused regarding innocence till contrary recorded by the court of the competent jurisdiction, and in the aforesaid background, there happens to be a fine distinction between the prayer for bail at the pre-conviction as well as the post-conviction stage, viz Sections 437, 438, 439 and 389(1) of the CrPC.
***
33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the above said question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The Appellate Court should not reappreciate the evidence at the stage of Section 389 of the CrPC and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach."
(emphasis supplied)
23. The survey of the above referred judgments on this point is relevant for the purpose of the present petition as it has laid a path to be followed in deciding an application filed under Section 389. A fair look at the observations of the Appellate 13 Court while dismissing the application under Section 389 of the Code is quite interesting. The relevant portion reads;
"In the case on hand, on going through the judgment of the learned Magistrate, this Court found no infirmity in the findings arrived at by the Magistrate in any angle. Both the offences under Sections 409 and 465 IPC are made out against the Petitioner without any manner of doubt and beyond all reasonable doubts."
24. It is a pertinent postulate of criminal law that the right of an appeal to the Accused is a statutory right, which is given under the Code to challenge the sustainability of the judgment of the trial Court on facts and law. At the same time, it is also an opportunity to the Appellate Court to examine the correctness of the judgment with avowed object of doing justice. In the backdrop of the object of the provisions of the Code while dealing with the appeals, it goes without saying that an Appellate Court has to reappreciate the evidence and take an independent decision. Of course, the presumption of innocence on the part of the Accused is not available post-conviction.
25. In that view, the Appellate Court, while dealing with a petition for suspension of sentence, at the threshold, without scrutinizing the material part of the record, making observations supporting the impugned judgment in all aspects, is unwarranted. It literally amounts to closing the doors to the Appellant for submitting further arguments, as it appears to have arrived at a conclusion, without thoroughly going through the record, as expected under the Code. It is apt to say suspension of conviction is different from suspension of sentence.
26. An appellate court which starts its journey with a narrow and bleak view, would not subserve the cause of justice. In criminal administration of justice, the Code envisages the hierarchy of the Courts, to safeguard the principles of justice delivery. It is not uncommon to see several judgments of trial Courts being affirmed as well reversed in appeals. Sometimes even concurrent judgments are set aside. This is also one consideration that is to be kept in mind to liberally construe the power envisaged under Section 389(1) of the Code, while dealing with the cases where sentence is below 10 years, in general, except under special circumstances. 14 Many a time, we come across instances of the Accused serving the complete sentence, even when the Criminal Appeals end in acquittal. At this juncture, it is relevant to refer to the judgment of the Hon‟ble Apex Court in Babu Singh v. State of U.P.14, wherein, it was observed 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 Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice to the individual involved and society affected."
(emphasis supplied)
27. To sum up, based on the precedents, this Court is of the view that while dealing with an application under Section 389 of the Code, the Appellate Court has to consider the following aspects like;
(1) prima facie grounds in appeal, (2) Nature of the offence, (3) Manner in which the occurrence took place (4) Danger to the life and limb, (5) Gravity of the offence, (6) Criminal Antecedents, (7) Commission of similar offence pre-conviction, (8) Misuse of bail granted during the trial, if any and (9) Chance of the Appeal being heard in time.
28. During the course of arguments, learned counsel for the Petitioner/Accused would submit that as the Appellate Court, while dismissing the petition, passed some observations indicating unnoticed prejudice, a direction may be passed to the head of the Sessions Division to transfer the matter to any other Court. Learned Assistant Public Prosecution would submit that Court may pass appropriate orders. It is not 14 1978 (1) SCC 579 15 out of the place to mention that the Petitioner may work out the remedies according to the provisions of the Code, if he feels aggrieved.
29. In the present case, the Accused was convicted for the offences under Sections 465 and 409 IPC and sentenced to undergo simple imprisonment for two years each and the sentence shall run concurrently.
30. In that view, taking into consideration the nature and gravity of the offence and the antecedents of the Accused during the course of trial, and as no instance has been reported that he jumped the bail, this Court is inclined to suspend the sentence passed against Accused and release him on bail on the following conditions:
a. Accused shall furnish a personal bond for Rs.20,000/- (Rupees Twenty thousands only) with two sureties for the like sum each to the satisfaction of the learned Judicial Magistrate of First Class, Dhone.
b. Accused shall appear before the Court of I Additional Sessions Judge, Kurnool, as and when directed.
31. Accordingly, Criminal Petition is allowed in the above terms. Pending Interlocutory applications, if any, shall also stand closed.
______________________________________ JUSTICE VENKATA JYOTHIRMAI PRATAPA Date: 05.03.2024 Dinesh 16 HON'BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA Crl.P.No.1117 of 2024 Dt.05.03.2024 Dinesh