Allahabad High Court
Anil Rastogi And (2) Ors. vs State Of U.P. on 27 October, 2016
Author: Abhay Mahadeo Thipsay
Bench: Abhay Mahadeo Thipsay
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 12 A.F.R. Reserved on 20.08.2016. Delivered on 27.10.2016. Criminal Misc. Application No. 68385 (B) of 2016 In Re: Case :- CRIMINAL APPEAL No. - 60 of 2001 Appellant :- Anil Rastogi And (2) Ors. (At 02:00 P.M.) Respondent :- State Of U.P. Counsel for Appellant :- Arun Sinha,Mahesh Chandra,O.P. Srivastava,Rajul Bhargava,Ratnesh Chandra,V.Bhatia,Vivek Shrotria Counsel for Respondent :- Govt.Advocate,J.N. Chaudhary,K.M.Rakesh,Manish Bajpai,Mridul Rakesh,Nadeem Murtaza,Nagendra Mohan,P.C.Mishra,R.Murtaza Hon'ble Abhay Mahadeo Thipsay,J.
1. By this application, the applicants, who are appellant Nos.1 and 2 respectively, have prayed that they be released on bail during the pendency of the appeal.
2. I have heard Shri Rajul Bhargava, learned counsel for the applicants. I have heard Shri S. N. Tilahri, learned Additional Government Advocate appearing for the State. I have heard Shri Nadeem Murtaza, learned counsel for the first informant- Dr. Rakesh Gupta (opposite party no.3).
3. The application has been vehemently opposed on behalf of the first informant. The first informant has filed written arguments opposing the bail application. The State has also filed written arguments. I have gone through the said written arguments. I have also considered the law laid down in the authoritative pronouncements of the Supreme Court of India on which reliance has been placed by the learned counsel for the parties.
4. Since the question of suspension of sentences imposed on the applicants and their release on bail during the pendency of the present appeal, has been made to appear somewhat complicated in view of certain developments that have taken place during the pendency of the appeal, it would be appropriate to mention here all the relevant facts leading to the present application, with relevant dates.
5. The offence in question has taken place in the year 1991. The First Information Report was lodged on 19.4.1991 by one Rakesh Kumar Gupta (opposite party No.3) alleging that his brother Rajendra Kumar Gupta was murdered by some persons, out of which, five were named in the First Information Report and three were mentioned as ''unknown'. Investigation was carried out and in due course, five persons were prosecuted as the accused. Apart from the present applicants, one Dr. Atul Rastogi, one Anand Swaroop Rastogi and one Giriraj Rastogi, were also prosecuted. Anand Swaroop Rastogi died during the trial. Giriraj Rastogi was acquitted by the trial court.
6. The applicants and Dr. Atul Rastogi were held guilty of an offence punishable under Section 302 of the Indian Penal Code read with Section 149 of the Indian Penal Code and sentenced to suffer imprisonment for life. They were also convicted of an offence punishable under Section 148 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for a period of two years.
7. The applicants/ appellants were on bail during the trial.
8. After their conviction, as aforesaid, by a judgment and order dated 31.01.2001, the three convicts, i.e., the applicants and the said Dr. Atul Rastogi filed the present appeal. By an order dated 19.2.2001, this court suspended the substantive sentences imposed upon the appellants, including the applicants, and released them on bail.
9. The appeal was heard by a Division Bench consisting of the Hon'ble Mr. Justice Bhanwar Singh and Hon'ble Mr. Justice Devi Prasad Singh, and the learned Judges were divided in the opinion and gave separate opinions. Hon'ble Mr. Justice Bhanwar Singh confirmed the conviction of the present applicants, but acquitted the third appellant-Dr. Atul Rastogi. The Hon'ble Mr. Justice Devi Prasad Singh, however, dismissed the appeal, by holding all the three appellants guilty.
10. Due to the difference of opinions between the Members of the Hon'ble Division Bench of this Court, the appeal was directed to be laid before a third Judge, as contemplated under Section 392 of the Code of Criminal Procedure(the ''Code'). The applicants, who were, however, opined to be guilty by both the aforesaid Hon'ble Judges in their separate opinions, were asked to surrender themselves to undergo the sentence and, accordingly, they both appeared before the Chief Judicial Magistrate, Lucknow and surrendered themselves. The Chief Judicial Magistrate accepted the surrender and took them in custody.
11. The appeal now has been laid before me, as the Third Judge.
12. The applicants thereafter filed separate appeals in the Hon'ble Supreme Court of India. They made a number of applications for bail. A petition for the writ of Habeas Corpus was also filed by them before this Court. The details of these proceedings need not be given here and such proceedings and the orders passed therein may be referred to in this order, as and when it becomes necessary, in the context of the contentions advanced by the learned counsel for the parties.
13. The main contention advanced by the learned counsel for the applicants is that the applicants were taken in custody, wrongly. It is submitted that the applicants were on bail during the trial and more importantly, when they appealed to this court by filing the present appeal, the substantive sentences imposed upon them were suspended till the hearing and final disposal of the appeal, and they were released on bail. It is submitted that as the appeal filed by the applicants is still pending, there was no occasion to take the applicants in custody.
14. It is not in dispute that the applicants were taken in custody on the basis of the opinions delivered by the Hon'ble Judges forming the Division Bench. Both the Hon'ble Judges, in their respective opinions, specifically directed that the applicants be taken in custody and be sent to jail to serve out the sentences awarded by the trial court. Both the Hon'ble Judges in their separate opinions, directed non-bailable warrants of arrest to be issued against the applicants for taking them into custody to serve out the sentences.
15. The first question is ''whether the applicants could automatically be taken in custody because both the Hon'ble Judges, giving separate opinions, had opined them to be guilty of the offence'. This in turn, leads to a more fundamental question viz.:- ''whether the applicants could be treated as persons, whose appeal against their conviction and the sentence had already been dismissed'. The answer to this question has to be in negative.
16. Though neither the Additional Government Advocate nor the learned counsel for the first informant has, in their respective arguments, attempted to dispute the position that the opinions delivered by the Hon'ble Judges constituting the Division Bench would not be treated as a ''judgment of the Division Bench' and the status of the orders passed by them was merely that of opinion, the legal position in that regard needs to be stated, in brief, for the sake of clarity. Section 392 of the Code reads as under:
Procedure where Judges of Court of Appeal are equally divided-. When an appeal under this Chapter is heard by a High Court before a Bench of Judges and they are divided in opinion, the appeal, with their opinions, shall be laid before another Judge of that Court, and that Judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion: Provided that if one of the Judges constituting the Bench, or, where the appeal is laid before another Judge under this section, that Judge, so requires, the appeal shall be re- heard and decided by a larger Bench of Judges.
17. A reading of Section 392 of the Code indicates that the views expressed by the Hon'ble Judge, in such a situation, would be merely ''an opinion' and would not be termed as a judgment or order capable of being enforced. Though as aforesaid, this position has not been disputed by the learned A.G.A. and the learned counsel for the first informant-opposite party No.3, it would be better to refer to the decision of Hon'ble Supreme Court in the case of Sajjan Singh and others Vs. State of M.P.1, which removes any doubt, as might be entertained about the correct legal position.
18. The relevant facts in the aforesaid case of Sajjan Singh (supra) as are found from the aforesaid reported judgment delivered by Their Lordships, were as follows:
Before the Sessions Court, eleven accused (including the appellants before the Supreme Court) were tried. The Sessions Judge acquitted one of them -one Banesingh- and convicted remaining ten, sentencing each of them to suffer imprisonment for life. The ten convicts appealed to the High Court; and the State also appealed against the acquittal of the said Banesingh. The appeals were heard together by a Division Bench and both the Judges constituting Bench, upheld the acquittal of Banesingh, and consequently, dismissed the appeal filed by the State. So far as the appeal filed by ten convicts was concerned, the Judges were divided in their opinion. While one of the Judges gave his opinion that the conviction of all of the convicts should be upheld and their appeal dismissed, the other Judge felt that the conviction of only three of them -''G', ''M' & ''B'- should be upheld and the rest should be acquitted. The matter was then referred to the third Judge under the provisions of Section 392 of the Code, who, by a judgment upheld the conviction of six of the convicts and dismissed their appeal while acquitting the remaining four persons. Out of the six convicts whose appeals were dismissed by the High Court, three -including ''M' & ''B'- appealed to the Supreme Court of India.
It transpired that the third Judge had not examined at all the case of the ''G', ''M' & ''B' as he had felt that there had been unanimity between the two Judges that the appeal of those three persons should be dismissed and their conviction and sentences should be upheld. The learned Judge was of the view that he was not called upon to decide the cases of the three convicts who were found guilty by both the Judges constituting the Division Bench. A contention that ''in view of Section 392 of the Code, he was not bound by the opinion of the two Judges of the Division Bench upholding the conviction of those three persons, and that he had to independently examine their appeal,' was advanced before the learned Third Judge, but he negatived the contention. The learned Third Judge, after referring to a number of cases decided earlier by the Apex Court concluded that the conviction and sentences of the said three convicts was ''final' and could not be ''reopened' by him as both the Judges comprising the Division Bench had held them guilty and convicted them. The learned Third Judge specifically refused to hear the appeal of those three persons on merits.
Their Lordships of the Supreme Court did not agree with the view of the learned third Judge. Their Lordships noted a number of previous decisions of the Supreme Court of India, some of which were delivered under the old Code of Criminal Procedure(Their Lordships observed that Section 429 of the old Code of Criminal Procedure was similar to Section 392 of the present Code except for the proviso that has been added thereto). Their Lordships observed that it was not necessary to refer to all the earlier decisions of the Supreme Court of India except the decision of the Constitution Bench in Babu Vs. State of U.P.2 and the later two judgments of the Apex Court in U.P. Vs. Dan Singh3 and Tanviben Pankajkumar Divetia Vs. State of Gujarat4. After considering the decisions referred to in these cases, Their Lordships observed as follows:
Statement of law is now quite explicit. It is the third Judge whose opinion matters; against the judgment that follows therefrom that an appeal lies to this Court by way of special leave petition under Article 136 of the Constitution or under Article 134 of the Constitution or under Section 379 of the Code. The third Judge is, therefore, required to examine whole of the case independently and it cannot be said that he is bound by that part of the two opinions of the two Judges comprising the Division Bench where there is no difference. As a matter of fact the third Judge is not bond by any such opinion of the Division Bench. He is not hearing the matter as if he is sitting a three-Judge Bench where the opinion of majority would prevail.
(Para 10 of the reported judgment) (Emphasis supplied)
19. The aforesaid observations leave no manner of doubt that as regards the guilt or innocence of the appellants, it would be the opinion of the Third Judge that would matter. In other words, the Third Judge would not be bound even by that part of the two opinions of the two Judges comprising the Division Bench where there is no difference.
20. In fact, this legal position has not been seriously disputed either by the learned counsel for the State or by the learned counsel for the first informant.
21. The main contention of the learned counsel for the applicants is that the applicants had been released on bail during the pendency of the appeal and they came to be taken in custody on a wrong notion of law and as if their appeal had already been dismissed. It is submitted that when such is the case, the applicants should be released on bail on that count itself. It is also submitted that the applicants were throughout on bail during the trial, then throughout on bail during the pendency of the appeal till they were taken in custody pursuant to the opinions delivered by the aforesaid two Hon'ble Judges. It is submitted that even otherwise, the applicants have remained in custody for a period of more than ten years; and that all these facts added to the strength of the applicants' case for bail.
22. Before proceeding further certain facts which cannot be disputed may be mentioned here:
(a) The applicants were on bail during the trial;
(b) The sentences imposed upon the applicants were suspended during the pendency of the appeal and the applicants were released on bail;
(c) The appeal filed by the applicants is still pending and is laid before the Third Judge with the separate opinions of the Judges constituting the Division Bench.
23. Let us now examine what are the grounds of objections to the grant of bail as raised by the State and by the first informant.
24. The learned counsel for the first informant submitted that the applicants had filed four bail applications before the Supreme Court of India, but all were rejected. The suggestion implicit in this is that it would not be proper for this Court to now release the applicants on bail. The mention of the previous rejections of the applicants' applications for bail by the Supreme Court of India has been made by the State also in the written arguments, that have been filed.
25. I have carefully gone through the orders passed by the Supreme Court of India, copies of which have been filed in the record.
26. The applications for bail were filed in two separate criminal appeals filed by the applicants after obtaining special leave of the Supreme Court. The appeals filed in the Supreme Court were ultimately dismissed by an order dated 18.03.2015, which reads as under:
Criminal Appeal No. 1123 of 2007 In the circumstances, though there is no question of remanding the case back to the learned third Judge as prayed for in this Crl.M.P., we permit the applicant/ appellant to withdraw this appeal to enable the appellant to place all the contentions and rely upon the decisions placed before us while arguing the appeal before the learned third Judge. With that liberty to the applicant/ appellant, this appeal is permitted to be withdrawn with a further direction to the Registry to send back all the records to the High Court to enable the learned third Judge to dispose of the Criminal Appeal No.60 of 2001 on merits. The appeal is accordingly, dismissed as withdrawn.
Criminal Appeal No. 1117 of 2007 Since the connected Criminal Appeal No.117 of 2007 preferred by the co-accused stands on the same footing of the appellant in Crl.A. No.1123 of 2007, the same directions referred to above is issued in this appeal also. The appeal is dismissed as withdrawn.
It is needless to state that depending upon the outcome of the judgment to be pronounced by the learned third Judge, both the Appellants can always work out their remedy in accordance with law.
It is open for the Appellants to move for bail before the learned third Judge and seek for order in accordance with law.
(Emphasis supplied)
27. The emphasis of the learned counsel for the first informant is on the fact that the facts pleaded in the present bail application were placed before the Supreme Court of India but Their Lordships did not order for release of the applicants. I do not find any substance in the contention -tacitly taken- that since the Supreme Court of India had not released the applicants on bail, this Court should not release them on bail. It is because Their Lordships of the Supreme Court had vide the order dated 18.03.2015, reproduced above, have given liberty to the applicants to move for bail before the Third Judge and seek for orders in accordance with law. In other words, the question of grant of bail to the applicants has been left open by the Supreme Court by stipulating that it would be decided by the Third Judge.
28. The question of grant of bail to the applicants, therefore, is required to be decided in accordance with law and a consideration of the present bail application cannot be refused on the ground that the applicants had previously failed to secure bail from the Supreme Court, on four occasions.
29. The second contention raised by the learned counsel for the first informant and the learned counsel for the State opposing the grant of bail is that the applicants had filed a petition praying for a writ of Habeas Corpus after they were taken in custody, claiming their custody to be illegal and for setting them at liberty on the same conditions on which they had been released on bail, which petition came to be dismissed. It is contented that, therefore, the custody of the applicants not having been held to be illegal by a Division Bench of this Court, the applicants cannot now be released on bail.
30. I am not impressed by this contention. A perusal of the order passed by the Division Bench of this Court dismissing the said Habeas Corpus Petition shows that one of the grounds on which the Habeas Corpus Petition came to be rejected was that the petitioners had been surrendered themselves before the Magistrate on their own application for surrender; and, therefore, the order of the Magistrate who acted on the directions of the Division Bench of this Court ''that they shall be taken into custody' could not be said to be without jurisdiction. The Division Bench categorically held that the Apex Court, at the time of disposing of the appeals filed by the applicants categorically observed that applicants were entitled to move application for bail before the third Judge and seek orders in accordance with law. The Division Bench categorically observed that the applicants were at liberty to raise all the contentions raised by them in the said writ petition in their application for bail before the third Judge. Thus, to suggest that the applicants are not entitled to be released on bail, by pointing out that the habeas corpus petition filed by them was dismissed, when one of the reasons for the dismissal thereof was that the applicants could apply for bail, is not a sound way of reasoning.
31. The next contention taken by the learned counsel for the first informant is that the Third Judge, i.e., this Bench is not competent to hear the present bail application, as, under the Allahabad High Court Rules, such an application is required to be heard by a Bench of two Judges. I find no substance in this contention also. As a matter of fact, this contention was taken before the Hon'ble Third Judge, who was then seized of the matter (Hon'ble Mr. Justice A. H. Khan). Undoubtedly, the Hon'ble Judge accepted the contention that the Third Judge was seized with the hearing of the appeal only; and that the bail application should be heard only by a Division Bench of this Court in view of the provisions of Rule 2 of Chapter V of the High Court Rules. However, when the applicants, thereafter, moved a bail application before a Division Bench, the Division Bench held that since the Hon'ble third Judge was seized of the entire appeal, the bail application also should be moved before the same learned Judge. The Division Bench categorically observed that the appeal was a matter incidental to the appeal. The Division Bench further observed that the direction given by the Supreme Court of India viz:- that the applicants were at liberty to move an application for bail before the Third Judge, was clear; and that had left no doubt that the application for bail could be considered by the Third Judge.
32. The view of the Division Bench cannot be ignored or overlooked by me. Even otherwise, on independently considering the question, I am also of the same view. In the first place, it is rather absurd to suggest that the Third Judge has full powers to deal with the appeal as he pleases, but he has no power to suspend the sentences during the pendency of appeal. The prayer for bail in the present case is only consequential to the power and authority of the appellate court to suspend the sentences imposed upon a convict during the pendency of appeal against such conviction.
33. There can be no doubt that the applicants, who were released on bail during the pendency of the appeal, were taken in custody in consequence of the directions given by the Hon'ble Judges in their separate opinions. Though it is nobody's case that a conscious decision of cancelling the bail granted to the applicants, was taken by the Division Bench, since it was possible for the Division Bench to do so, I have carefully examined the directions given by the Hon'ble Judges in their separate opinions. The relevant part of the order passed by the Hon'ble Mr. Justice Bhanwar Singh reads as under:
The two convicts Anil Rastogi and Ajai Rastogi, who were on bail during the pendency of this appeal, will now be taken into custody and sent to jail to serve out the sentences awarded to them by the learned trial Court.
(Emphasis supplied)
34. The relevant part of the order passed by Hon'ble Mr. Justice Devi Prasad Singh reads as under:
The present appeal filed by the appellants is devoid of merit, hence dismissed. The Judgment and Order of conviction and sentences rendered by the IInd Addl. Sessions Judge, Lucknow in S.T. No. 527/93 calls for no interference and is hereby confirmed. The appellants who were on bail be taken into custody and be set to the jail in view of sentence awarded by the sessions court.
(Emphasis supplied)
35. Thus, the applicants were directed to be taken in custody automatically by treating their appeal as dismissed. It was not deliberated by the Division Bench as to ''whether the bail previously granted to the applicants, which was to remain in force during the pendency of the appeal, should be cancelled in view of the fact because in the opinion of both the Hon'ble Judges the applicants were guilty'. The relevant part of the opinions delivered by the Hon'ble Judges, reproduced above, leaves no manner of doubt that the appeal of the applicants was treated as dismissed and as a consequence thereof, they were directed to be taken in custody to serve out the sentences awarded to them. Now, the notion that the appeal filed by the applicants was dismissed, which resulted in the direction regarding the applicants to be taken, was clearly wrong. The appeal of the applicants is still pending. It would now be decided by the Third Judge. When the appeal was still pending, there was no occasion to reconsider the question of revocation of the suspension of the sentences; and it is evident from the observations made by the Hon'ble Judges in their orders that the applicants were directed to be taken in custody by treating their appeal as dismissed.
36. Once this position is accepted, the natural consequence thereof should that the applicants who were deprived of their liberty in such a manner be restored with it. No other factors would be really significant in that context. The concept that the order of the Court shall prejudice no one, expressed in the maxim actus curiea neminem gravabit, cannot be overlooked in a situation like this. The erroneous notion on the basis of which the applicants were forced to land themselves into custody, cannot be permitted to confer any advantage on the State or the first informant, who had earlier though it fit not to challenge the initial suspension of the sentences awarded to the applicants and had submitted to the position that the sentences would remain suspended till the disposal of the appeal.
37. Shri Nadeem Murtaza, learned counsel for the first informant, submitted that the applicants do not deserve to be released on bail, as, while in jail, they have committed offences punishable under Sections 332 of the IPC and 353 of the IPC, for which they have been convicted and sentenced to imprisonment for a period of two years. It is also submitted that the present criminal appeal is ready for hearing and can be decided within a short span of time and thereafter the sentences imposed upon the applicants may not now be suspended.
38. Undoubtedly, these factors cannot be said to be irrelevant, but in the present case when there can be no manner of doubt that the applicants were deprived of their liberty -granted to them by this Court itself- on a wrong notion that their appeals were dismissed, then these factors pale into insignificance. The skillful arguments of the counsel cannot be permitted to cloud the vision of the Court to see what is the real point involved in deciding the question of grant of bail, in the present case.
39. Even otherwise, the applicants are in custody for a period of more than ten years during the pendency of this appeal. By keeping in mind the provisions of Section 57 of the IPC, it can be certainly said that the applicants have already undergone more than half of the sentences imposed upon them, and the appeal is still pending. This factor also weighs in favour of the applicants, for grant of bail.
40. I am, however, not inclined to release the applicants on bail of the same amount that was stipulated by this Court about fifteen years back. I think it fit to enhance the amount of bail and to impose appropriate conditions to ensure that the applicants remain available at the time of final hearing of the appeal.
41. Also, in view of the submissions made by the learned counsel for the first informant that the applicants are interested in delaying the outcome of the appeal, which was denied by the counsel for the applicants by saying that it is not so, and that the applicants are ready to go on with the appeal expeditiously, I intend to give appropriate directions to ensure an expeditious hearing and disposal of the appeal.
42. Application is allowed.
43. Pending the hearing and final disposal of the appeal, the substantive sentences imposed upon the applicants shall stand suspended; and the applicants shall be released on bail in the sum of Rs.1,00,000/-(One lac) each, with one surety in like amount, or two sureties in the sum of Rs.50,000/-(Fifty Thousand) each, on the condition that the applicants shall report to the trial court on the first and third Monday of each calendar month, till the disposal of the appeal.
44. Should the court be closed on any given Monday on account of holiday, the applicants shall report to the court on the next working day.
45. Any default by the applicants in reporting to the trial court, as aforesaid, shall forthwith be brought by the trial court to the notice of this Court, for further appropriate action.
46. The appeal be listed, peremptorily, for final hearing on 15.12.2016 along with the pending applications.
47. It is made clear to the learned counsel for the parties that, as far as possible, the appeal shall be heard on day to day basis, thereafter.
[Abhay Mahadeo Thipsay, J.] Order Date :- 27.10.2016 Mustaqeem