Patna High Court - Orders
Suddu Kumar vs The State Of Bihar on 9 March, 2017
Author: Hemant Gupta
Bench: Sharan Singh, Hemant Gupta
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.583 of 2015
Arising Out of PS.Case No. -111 Year- 2012 Thana -PARSABAZAR District- PATNA
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1. Suddu Kumar, Son of Baleshwar Rai, Resident of Village-
Ankopur, P.S.- Janipur, District- Patna.
.... .... Appellant
Versus
1. The State of Bihar
.... .... Respondent
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Appearance :
For the Appellant : Mr. Arvind Prasad Singh
For the Respondent : Mr. A.K. Sinha, APP
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
AND
HONOURABLE MR. JUSTICE CHAKRADHARI
SHARAN SINGH
C.A.V. ORDER
(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH )
REF.:- I. A. NO. 2349 of 2016
7 09-03-2017The appellant has been convicted of the offences punishable under Section 302 read with Section 34 of the Indian Penal Code and Section 27 of the Arms Act. He has been sentenced to undergo imprisonment for life with a fine of Rs. 10,000/- for the offence punishable under Section 302 of the Indian Penal Code and imprisonment for three years for the offence punishable under Section 27 of the Arms Act. In default of payment of fine, he has been made to undergo further imprisonment for one year in relation to offences under Sections 302/34 of the Indian Penal Code and six months in relation to the offence Patna High Court CR. APP (DB) No.583 of 2015 (7) 2 punishable under Section 27 of the Arms Act. The judgment and order recording his conviction and passing sentence are dated 02.06.2015 and 08.06.2015, respectively.
2. The present criminal appeal was filed on 03.08.2015 and after admission 07.08.2015; it is pending for final hearing.
3. After receipt of the Lower Court Records, a prayer was made on behalf of the appellant for suspension of sentence and his release on bail during pendency of appeal, which came to be rejected by an order dated 31.08.2015.
4. The present application has been filed, renewing the prayer for suspension of sentence and consequent release of the appellant on bail during the pendency of the appeal.
5. The question of reconsideration of the prayer for suspension of the sentence on merits, once such prayer having been earlier rejected by this Court does not arise as that will amount to review of the earlier order, which is impermissible in law. Learned Senior Counsel appearing for the appellant accepts this proposition of law.
6. Learned senior counsel appearing on behalf of the appellant has, however, submitted that the present appeal is not likely to be taken up for final adjudication in Patna High Court CR. APP (DB) No.583 of 2015 (7) 3 near future and considering long incarceration of the appellant in jail, his prayer for suspension of sentence may be re-looked from that perspective. According to him, delay in taking up of criminal appeals for final hearing and adjudication may also be a factor for consideration of suspension of sentence, if the appellant has remained in custody in connection with the concerned trial for a reasonably long time. He has relied on Supreme Court decision in the case of Surinder Singh Alias Shingara Singh v. State of Punjab, reported in (2005) 7 SCC 387, in support of his plea. A Division Bench decision of the Punjab & Haryana High Court in the case of Dharam Pal v. State of Haryana, reported in (2000) 1 Chan. LR. 74, had come up for consideration in the case of Surinder Singh (supra) on the question of release of convict on bail during the pendency of appeal on the ground of Court's inability to take up criminal appeals for final hearing. The Punjab & Haryana High Court in the case of Dharam Pal (supra) had passed certain orders, in this regard. Relevant portion from paragraph 10 of which is extracted hereinbelow:-
"10. ................... We, therefore, direct that life convicts, who have undergone at least five years of imprisonment of which at least three years should be after Patna High Court CR. APP (DB) No.583 of 2015 (7) 4 conviction, should be released on bail pending the hearing of their appeals should they make an application for this purpose. We are also of the opinion that the same principles ought to apply to those convicted by the courts martial and such prisoners should also be entitled to release after seeking a suspension of their sentences. We further direct that the period of five years would be reduced to four for females and minors with at least two years imprisonment after conviction. We, however, clarify that these directions shall not be applicable in cases where the very grant of bail is forbidden by law."
7. In case of Dharam Pal (supra), the High Court of Punjab & Haryana had held, as can be easily seen, that the Court decided that such life convicts, who had undergone at least 5 years of imprisonment of which at least 3 years, after conviction, should be released on bail pending the hearing of their appeals, if they made an application for the said purpose. In case of female and minors, the Punjab & Haryana High Court fixed 4 years in place of 5 years and 2 years imprisonment after conviction instead of conviction of 3 years. The said direction, the Patna High Court CR. APP (DB) No.583 of 2015 (7) 5 Punjab & Haryana High Court held, shall not to apply in cases, where very grant of bail is forbidden by law.
8. In another case, when an application for release on bail was refused by a Bench of Punjab & Haryana High Court, the Supreme Court, on an appeal, had an occasion to consider the said direction issued by the Punjab & Haryana High Court. The Supreme Court, in case of Surinder Singh Alias Shingara Singh (supra), held that the said directions, issued by the Punjab & Haryana High Court, were only in the nature of guidelines and it should not be understood to have laid down any invariable rule to be observed with mathematical precision. The Supreme Court observed, in paragraph 12 in the case of Surinder Singh Alias Shingara Singh (supra), that the guidelines laid by Punjab & Haryana High Court, in case of Dharam Pal (supra), should be kept in mind by the Courts dealing with applications for grant of bail in a pending appeal, though, it does not lay down any hard-and-fast rule of universal application. Paragraph 12 of the said decision, in case of Surinder Singh Alias Shingara Singh (supra), reads thus:-
"12. We, therefore, hold that the High Court of Punjab and Haryana in Dharam Pal case laid down guidelines which ought to be kept in mind by the courts dealing Patna High Court CR. APP (DB) No.583 of 2015 (7) 6 with applications for grant of bail in a pending appeal. It does not lay down any hard-and-fast rule of universal application. As we have observed earlier, it would be futile to lay down any straitjacket formula in such matters."
9. The issue of long pendency of criminal appeals for final hearing arising out of capital charges as a factor for considering suspension of sentence and release of the appellants on bail, on that ground, had come up for consideration in the case of Anurag Baitha (supra) before a Full Bench of this Court in a situation where till close of the year 1983, murder appeals, preferred in the year 1972, and well beyond a decade were pending disposal for the fact that the Court had remained crippled by the absence of full nearly one-third of its sanctioned strength. The anxiety of the Full Bench had been candidly expressed in paragraph no. 4 in the case of Anurag Baitha (supra), which reads as follows:-
"4. ........... But for the fact that the Court has remained crippled by the absence of full one- third of its sanctioned strength and as many as thirteen vacancies on this Bench have existed, there would have been no question of any delays in such hearings. This, Patna High Court CR. APP (DB) No.583 of 2015 (7) 7 however, was not to be. Yet hopefully the identical position of wiping out all delays at the Patna Bench itself would be reached well within the next year. However, there is no gainsaying the fact that as of today 1983 murder appeals only can be listed (barring the specially ordered cases) and heard in the ordinary course and there thus remains a yawning gap of three years or more betwixt the filing of an appeal and its final disposal. So long as this remains and if it unfortunately recurs, the significant issues raised herein have to be considered and frontally faced."
10. Upon analyzing the situation as it then prevailed, the Full Bench made significant observations, which, in our view, are of immense importance in the present scenario, since the state of affairs as on today is more alarming. The Full Bench observed that it would be a sound practice that unless there are cogent grounds for acting otherwise, on conviction, an appellant would become entitled to the favourable consideration for his liberty and grant of bail when even after 1 year of incarceration and pendency of the appeal, the High Court is not able to bring it to a final hearing. The Full Bench has observed that in Patna High Court CR. APP (DB) No.583 of 2015 (7) 8 such cases, where hearings of appeals extend to 3 or 4 years, the persons, who are vicariously convicted on capital charges with the aid of Section 34 or 149 of the IPC, may well be granted bail on the admission of the appeal itself during the pendency of its hearing after such time. While making these observations, the Full Bench made it clear that the practice shall apply only to ordinary run of the mill cases and not to the "peculiar and exceptionally heinous crimes".
11. As can be noticed from Full Bench decision, in case of Anurag Baitha (supra), relevant portion of which has been quoted hereinabove, the Court held that cases of convicts to whom primal role in a capital crime is attributed and are held guilty on substantive charge of murder or other capital offences, are undoubtedly on a different footing and the said concession cannot be extended to them routinely. The Full Bench, however, added that even they should not be denied bail and allowed to continue in further incarceration for 3 or 4 years, awaiting of appeal after having already undergone the mill of a trial extending over 2 to 5 years. The Full Bench, thus, held that even in their cases, after the period of 1 year of the pendency of the appeal, the issue of suspension of sentence and release on bail would have to be considered on the basic ground of Patna High Court CR. APP (DB) No.583 of 2015 (7) 9 delay in the light of the inability of the Court itself to hear and disposed of the appeal. The Bench in most categorical and unambiguous terms held that peculiarly heinous crimes shocking the very conscience of the society and the Court "there will be no alternative but to extend the concession of appeal, under this class of cases as well if the insistent claim of the convicts for hearing of the appeal could not be acceded to and their appeal are not adjudicated upon within the reasonable time frame of one year.
12. Similar question arose for consideration before a Division Bench of this Court in case of Chandra Shekhar Bharti (supra), wherein this Court dealt elaborately the Full Bench decision of this Court, in case of Anurag Baitha (supra), and the Supreme Court decision, in case of Kashmira Singh (supra). The Division Bench of this Court, in case of Chandra Shekhar Bharti (supra), noticed the ratio laid down by the Full Bench, in case of Anurag Baitha (supra), rejecting the plea of the State that delay in hearing of appeal cannot be a ground for release of a prisoner. In case of Anurag Baitha (supra), the Full Bench of this Court held that neither principle nor precedent could be cited for any such constricted view rather even under Section 389 of the Code of Criminal Procedure, inordinate delay in hearing of substantive appeals, because Patna High Court CR. APP (DB) No.583 of 2015 (7) 10 of the Court's own inability to do so, would be extremely relevant factor for grant of bail inasmuch as Section 389 of the Code of Criminal Procedure mentions necessity of recording of reasons for suspending sentence and undoubtedly it would be a good reason to state that there is no practicable possibility of expeditious hearing of the appeal. The Division Bench, in case of Chandra Shekhar Bharti (supra), concluded, in paragraph 111, that notwithstanding the fact that prisoner's application for suspension of sentence and his consequent release on bail cannot be allowed on merit or has been rejected on merit, the Appellate Court still retains the power to suspend the sentence for such period as the Court may consider imperative, particularly, when the Court finds that such suspension of sentence would make the right to life, guaranteed under Article 21 of the Constitution of India, meaningful. The Division Bench held (i) inordinate delay in disposal of the appeal, (ii) terminal ailments, (iii) marriage of daughter, and (iv) performing last rites, etc. as the circumstances falling in the broader definition of right to life and can become valid grounds for suspension of sentence of a prisoner and his release on bail for a temporary period or until disposal of his substantive appeal.
13. The observations, in the case of Kashmira Patna High Court CR. APP (DB) No.583 of 2015 (7) 11 Singh (supra), are of much significance, which we cannot afford to miss for the purpose of present judgment and order. In case of Kashmira Singh (supra), the Supreme Court noticed long prevailing practice adopted by the Supreme Court and many High Courts not to release a person on bail, after having been sentenced to life imprisonment for an offence punishable under Section 302 of the Indian Penal Code. The Supreme Court in said case posed a question to itself as to whether the practice should be departed from and, if so, in what circumstance and observed 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 Supreme Court held.
14. The Supreme Court, in case of Kashmira Singh (supra), further remarked that practice not to release on bail a person, who was sentenced to life imprisonment, was evolved in the High Courts on the basis that once a person had 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 at the same time noticed the underlying postulate of this practice that the appeal of such person would be disposed of within a Patna High Court CR. APP (DB) No.583 of 2015 (7) 12 "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 Court, in case of Kashmira Singh (supra), made significant observations by answering to the questions posed by itself in paragraph 2 of the decision, relevant portion of which reads thus:-
"2. ......... The rationale of this practice can have no application where 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 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 Patna High Court CR. APP (DB) No.583 of 2015 (7) 13 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."
15. Considering the Supreme Court decision in the case of Surinder Singh (Supra), a Full Bench decision of this Court in the case of Anurag Baitha v. The State of Patna High Court CR. APP (DB) No.583 of 2015 (7) 14 Bihar, reported in 1987 PLJR 485, and taking note of observations made by Supreme Court in the case of Kashmira Singh v. The State of Punjab, reported in (1977) 4 SCC 291, a Single Bench of this Court, dealing with the issue of suspension of sentence during the pendency of appeal on the ground of the Court's inability to take up final hearing of criminal appeals, recently in an order, dated 30.01.2017, in Criminal Appeal (S.J.) 167 of 2015 (Ubed, son of Latifur Rahman v. The State of Bihar), has concluded that inordinate delay in hearing on substantive appeals because of Court's inability to do so would be extremely relevant factor for grant of bail, and undoubtedly, it would be a good reason to state that there is no practicable possibility of expeditious hearing of the appeal. The Single Bench has held in paragraph nos. 23 and 24 as follows:-
"23. I am further of the view, taking cue from the law laid down by the Full Bench of this Court, in case of Anurag Baitha (supra), and the Supreme Court decision, in case of Surinder Singh Alias Shingara Singh (supra), that in case where the sentence of imprisonment for a term of 10 years, if the appellant has remained in custody post-conviction for a Patna High Court CR. APP (DB) No.583 of 2015 (7) 15 period of 2 years and has remained in custody for a period of 5 years altogether, his application for suspension of sentence and release on bail will be required to be considered favourably except in exceptional circumstance. If the sentence is for a term less than 10 years and if the appeal is not taken up within a period of 1 years of presentation of the appeal and the convict has remained in custody half the period of sentence, his case for suspension of sentence will be required to be considered favourably.
24. I sum up my discussions as follows:
(i) An appellant
convicted of a criminal offence,
whose appeal is pending, shall be
entitled to a favourable
consideration for his liberty and
grant of bail on suspension of
sentence on the ground of
inordinate delay in hearing of the
substantive appeals because of the
Court's own inability to hear the
appeals. There cannot be any
straightjacket formula and hard and fast rule of universal application for consideration of bail in such situation. The discretion always lies Patna High Court CR. APP (DB) No.583 of 2015 (7) 16 with the Court to allow or reject any plea for grant of bail during the pendency of appeal, in the background of nature of the case and other attending circumstances.
(ii) Ordinarily, if the
appellant has spent half of the term
of sentence in custody, in
connection with a case, before
conviction and after conviction
taken together and his appeal is not
likely to be heard on merits in near
future, he should be released on bail on the ground of possible delay in disposal of the appeal.
(iii) In any event, if the appellant has remained in custody for two (2) years or more after conviction and awaiting for turn of his appeal to come for final hearing and there is no likelihood of the appeal being taken up in near future, his case for release on bail would need favourable consideration on that ground.
(iv) Barring in peculiar and exceptional circumstance, when conviction is for a period of five (5) years or less, the appellant should be admitted to bail at the stage of admission.
(v) This will, however, not apply in case of peculiar and Patna High Court CR. APP (DB) No.583 of 2015 (7) 17 exceptionally heinous crimes.
(vi) In order to make out a case for suspension of sentence, on the ground of delay in hearing of substantive appeals, a party will have to establish that despite effective steps having been taken by him/her for getting the appeal heard, his prayer for expeditious hearing could not be acceded to."
16. It has been noticed by the Single Bench, in the case of Ubed (supra), that criminal appeals (DB) of the year 2010, where the appellants are in custody, are being heard; whereas, criminal appeals (DB) are pending final hearing from 1993. There may be exceptions where few appeals of subsequent years might have been taken up for final hearing and might have been disposed of on urgent mentioning or for any other reason. This is, by and large, the scenario of long pendency of criminal appeals in Patna High Court. Apparently, thus, an appellant, in custody, has, as on date, to wait for five years or more after filing of the criminal appeal, to get his appeal heard. Many of them might have spent some period in custody in course of investigation or trial, prior to conviction and presentation of appeal.
17. In the background of long pendency of Patna High Court CR. APP (DB) No.583 of 2015 (7) 18 criminal appeals, in this Court, in our view, what has been held in the case of Ubed (supra) can be followed and applied for the purpose of consideration of suspension of sentence of appellant during the pendency of the criminal appeals (D.B) including appeal against conviction of an appellant of capital charge.
18. The case of Ubed (supra) deals with the cases where the sentence is for a period of time. For life convicts, we do not find any reason why should we forget the view expressed in the Full Bench decision, in the case of Anurag Baitha (supra). Taking a cue from the said Full Bench decision, in the case of Anurag Baitha (supra), we are of the view that even in such cases, normally, concession of bail should be extended if claim of convicts of the hearing of the appeal cannot be acceded to and their appeals cannot be adjudicated upon within a reasonable time. The heinous crimes, shocking to the very conscious of the society and the Court, like offences under the provisions of the Narcotic Drugs and Psychotropic substances Act, 1985, the Prevention of Children from Sexual Offences Act, 2012, offences under Sections 376, 376-C, 376-D and 364- A of the Indian Penal Code etc. are certain exception to the general run of the mill cases. It is not possible to make an exhaustive categorization of cases, which can be described Patna High Court CR. APP (DB) No.583 of 2015 (7) 19 as heinous capital crimes, which is shocking to the conscious of the society, peculiarly horrendous crimes and so on nor such classification is desirable. It will depend on the facts and circumstances of a particular case where the Court can refuse the concession of bail despite delay in the disposal of the appeal.
19. We are, further of the view that it would be a sound practice if a prayer for suspension of sentence and release of an appellant on bail, convicted of a capital crime and sentenced to undergo imprisonment for life, is considered favourably and he is ordinarily allowed bail if he has completed seven years of incarceration in connection with such case before conviction and after conviction, taken together when his appeal is not likely to be heard on merits in near future, on the ground of possible delay in the disposal of the appeal. In case of female convict, such period shall be six years in place of seven years. It is reiterated that this rule can be uniformly followed barring peculiar and exceptional circumstances.
20. Having said so, let's now consider the appellant's prayer for bail which has earlier been rejected by this court. In the present case, the appeal was filed in August, 2015. His prayer for suspension of sentence has been rejected on merit by an order, dated 31.08.2015. The Patna High Court CR. APP (DB) No.583 of 2015 (7) 20 appellant is in custody in connection with the said case since 24.06.2012. The appellant's appeal is, thus, pending for nearly one-and-a-half years. Further, his period of incarceration is less than five years. In that view of the matter, the prayer of the appellant for suspension of his sentence cannot be acceded to.
21. I. A. No. 2349 of 2016 is accordingly dismissed, at this stage.
(Chakradhari Sharan Singh, J.) Hemant Gupta, ACJ.: I agree (Hemant Gupta, ACJ.) Prabhakar Anand/-
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