Jharkhand High Court
Md. Sahabuddin Baig vs The Union Of India Through C.B.I./Spe on 22 June, 2021
Equivalent citations: AIRONLINE 2021 JHA 1054
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 469 of 2019
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Md. Sahabuddin Baig ... Appellant
Versus
The Union of India through C.B.I./SPE, Ranchi
... Respondent
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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Appellant : Mr. Samir Malik, Advocate
For the C.B.I. : Mr. Rohit Sinha, Advocate
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Order No.13 Dated- 22.06.2021
I.A. No.1691 of 2021 with I.A. No.2353 of 2021 with I.A. No.8963 of 2019 Heard the parties through video conferencing. It is submitted by the learned counsel for the Applicant- Appellant that he is not ready for hearing of the appeal on merits and is only ready for hearing of the interlocutory applications for bail and suspension of the execution of the sentence, to which these three interlocutory applications relate, as the Hon'ble Supreme Court of India has passed following order on 05.05.2021 in Writ Petition (s) (Criminal) No(s).190 of 2021 which is as follows:-
"We are not inclined to entertain this writ petition filed under Article 32 of the Constitution of India seeking bail.
Accordingly, the writ petition is dismissed. However, it is open for the petitioner to press his bail application, which is said to be pending before the High Court. The petitioner is given liberty to file an application for expeditious hearing of that bail application bearing I.A. No.8963 of 2019.
We hope and trust that the said bail application shall be decided as expeditiously as possible, preferably within four weeks from the date of filing of such application.
Pending application(s), if any, stands disposed of accordingly."
It is submitted by the learned counsel for the Applicant- Appellant that Criminal Appeal (SJ) No.469 of 2019 out of which three interlocutory applications have been preferred against the 2 Judgment of conviction and order of sentence dated 22.02.2019 passed by the learned Spl. Judge, C.B.I., Ranchi under the Prevention of Corruption Act, 1988 passed in R.C. No.02(A)/1997-R, whereby the Applicant-Appellant has been convicted and sentenced to undergo separate Rigorous Imprisonment for commission of offences punishable under various penal provisions of law as follows:-
Name of the Offences Imprisonment Fine Default Convict Md. Sahabuddin Section 13 (2) 5 years R.I. Rs.10 lacs 6 Months S.I. Baig r/w Section 13 (1) (d) of the P.C. Act Md. Sahabuddin Section 120B 2 years R.I. Rs.10 lacs 6 Months S.I. Baig r/w Sections 420, 407, 467, 468, 471 of the I.P.C. r/w Section 13 (2) r/w Section 13 (1) (d) of the P.C. Act The brief facts of the case is that this case relates to bitumen scam and the Applicant-Appellant was the employee of the State Government and at the relevant time his substantial post was Commercial Tax Officer in the Department of Commercial Taxes and he was posted for some time as Private Secretary of the then Minister of Road Construction Department, Government of Bihar, Patna being the co-convict -Md. Illiyas Hussain @ Md. Illiyas and the Applicant-Appellant has been held guilty along with the co-accused persons for having in criminal conspiracy with the co-accused persons committed the misappropriation of 3045.200 MT of bitumen amounting to Rs.1,52,26,000/-besides being a public servant having committed the offence of misconduct.3
It is next submitted by the learned counsel for the Applicant-Appellant that Applicant-Appellant has undergone more than half of the maximum sentence of five years imposed upon him by the trial court as the Applicant-Appellant has already undergone the sentence for a period of three years and one month.
The second ground for bail and suspension of execution of the sentence is that bail has been granted to the co-convict Ex- Minister -Md. Illiyas Hussain @ Md. Illiyas by the Hon'ble Supreme Court of India in S.L.P. (Crl) No.5022 of 2020 (Criminal Appeal No.810 of 2020).
The third ground for bail and suspension of execution of the sentence is that the case of the Applicant-Appellant is different from the case of co-convicts-Dhudheshwar Nath Singh @ Dudheshwar Nath Singh and Smt. Shobha Singh whose prayer for bail and suspension of execution of the sentences have been rejected by this Court, by separate orders.
It is next submitted by the learned counsel for the Applicant- Appellant that one of the convict in R.C. No.4 (A) of 1997-R has been admitted to bail by a coordinate Bench and similarly in another case being the case of Lalu Prasad @ Lalu Prasad Yadav vs. State of Jharkhand through CBI (AHD) also a coordinate Bench of this Court has granted bail to the appellant of that appeal vide order no.17, dated 09.10.2020 in Cr. Appeal (SJ) No.207 of 2018, inter alia on the ground that the appellant of that appeal has undergone more than half of the sentence imposed upon him.
It is then submitted by the learned counsel for the Applicant- Appellant that Section 427 of Code of Criminal Procedure has no application to the present case and it is also submitted that the Applicant-Appellant is entitled to bail by virtue of Section 436-A of Code of Criminal Procedure.
So far as the applicability of Section 436-A of the Code of Criminal Procedure for consideration of bail and suspension of execution of sentence in an appeal, the learned counsel for the 4 Applicant-Appellant relies upon the judgment of Hon'ble High Court of Jammu and Kashmir in the case of Raj Singh vs. State of Jammu and Kashmir (2020 SCC Online J&K 338). It is further submitted by the learned counsel for the Applicant-Appellant that the Hon'ble Supreme Court of India in the case of Kamal vs. State of Haryana (2004) 13 SCC 526 and Pinku and others vs. State of Uttar Pradesh (2020) 15 SCC 551 granted bail to the persons having undergone more than half of the maximum sentence imposed upon them.
I.A. No.8963 of 2019 has been filed with a prayer for suspension of execution of sentence and grant of bail to the Applicant-Appellant during the pendency of the appeal. The matter was taken up by the predecessor Judge of this court and vide order dated 25.02.2020 the matter was posted for final hearing and disposal of the same on 17.03.2020. On 17.03.2020, learned counsel for the Applicant-Appellant prayed for time for hearing of the appeal.
I.A. No.1691 of 2021 has been filed with a prayer for passing an appropriate order for suspension of sentence and grant of bail to the Applicant-Appellant during the pendency of the instant appeal bearing Criminal Appeal (SJ) No.469 of 2019. It has been averred therein in paragraph no.2, that I.A. No.8963 of 2019 has been filed for suspension of sentence and grant of bail but vide order dated 06.01.2020 passed by Hon'ble Mrs. Justice Anubha Rawat Choudhary in which the predecessor Hon'ble Judge was pleased not to consider the prayer for bail and passed the direction to list the appeal for Final Hearing, hence, it is submitted that no other interlocutory applications has been filed for the suspension of sentence and grant of bail and thereafter the same averments have been made in the petition of I.A. No.1691 of 2021 as made in the petition of I.A. No.8963 of 2019. The additional ground averred in I.A. No.1691 of 2021 is that the Applicant-Appellant is of 68 years of age and suffering from numerous ailments and in August, 2020 he got infected with 5 Covid-19 and also the wife of the Applicant-Appellant is suffering from numerous ailments.
Mr. Samir Malik, the learned counsel for Applicant- Appellant submits that though in paragraph no.15 of I.A. No.1691 of 2021, it has been mentioned that the Applicant- Appellant was made an accused in same and similar type of six cases relating to Bitumen scam but in fact besides the six cases as mentioned in the petition of I.A. No.1691 of 2021, the Applicant- Appellant is also accused in two more cases of disproportionate assets that is in total the Applicant-Appellant is involved in eight cases and out of the said eight cases, Applicant-Appellant has been acquitted in one of the cases and convicted in two cases including the present case while the rest five cases are pending for trial and in all such five cases he is on bail. I.A. No.2353 of 2021 has been filed with a prayer for passing order for expeditious disposal of I.A. No.8963 of 2019 and suspension of sentence and grant of bail to the applicant- appellant. Hence, it is submitted by Mr. Malik that the Applicant-Appellant be admitted to bail and execution of this sentence be suspended pending disposal of Criminal Appeal (SJ) No.469 of 2019.
Mr. Rohit Sinha, the learned counsel for the Central Bureau of Investigation on the other hand opposes the prayer for bail and suspension of execution of sentence. It is submitted by Mr. Sinha that the Applicant-Appellant has not undergone half of the sentence imposed upon him in this case rather he remained only for five months eight days in custody during the pendency of the trial, as an under trial prisoner from 20.10.2003 to 27.03.2004 and thus in connection with this case the Applicant- Appellant has only remained in custody for five months and eight days and not three years and one month as claimed by the Applicant-Appellant. It is further submitted by Mr Sinha that as because the Applicant-Appellant has also been convicted in R.C. No.4 (A)/1997-R before his conviction in this case against which this appeal has been preferred and he has not completed the 6 sentence imposed upon him in that case and is presently undergoing the sentence imposed upon him in that case, hence the Applicant-Appellant is yet to serve out the remaining sentence of this case beyond five months and eight days and the sentence imposed upon him by the impugned Judgment will , commence only after the Applicant-Appellant completes the sentence imposed upon him in R.C. No.4(A)/1997-R, as no order in terms of Section 427 (1) of Code of Criminal Procedure has been passed by the learned trial court in the impugned judgment that the sentence of this case shall run concurrently with the previous sentence passed by the court in R.C. No.4(A)/1997-R nor such prayer was made by the Applicant-Appellant before the trial court at the time of hearing of sentence after his conviction in this case, for concurrent running of the sentence of this case with the previous sentence imposed upon him in R.C. No.4(A)/1997-R. It is further submitted by Mr. Sinha that though it is submitted on behalf of the Applicant-Appellant that he has been granted bail in R.C. No.4(A)/1997-R but as he has not furnished the bail bonds in terms of the order granting him bail and suspending execution of the sentence in that case and hence, execution of the sentence imposed upon him in R.C. No.4(A)/1997-R is still continuing as the order of bail and execution of suspension of sentence passed in R.C. No.4(A)/1997-R was a conditional order which will come into effect only upon the Applicant-Appellant furnishing his bail bond in terms of the said order for bail and suspension of execution of sentence passed in R.C. No.4(A)/1997-R. It is next submitted by Mr. Sinha that the Applicant-Appellant became ready for hearing of the appeal along with other appeals and accordingly the predecessor Judge fixed the appeal for final disposal on 17.03.2020 but on 17.03.2020 instead of advancing arguments on the merits of the appeal, prayer for time was made on behalf of the Applicant-Appellant and the same was allowed by the predecessor Judge.
7It is then submitted by Mr Sinha that as submitted by the learned counsel for the Applicant-Appellant today, the Applicant-Appellant is not ready for hearing of the appeal on merits even today though the appeal is fixed for hearing on merits today also and the hearing of the appeal for its final disposal can be taken up and this appeal can be disposed of finally on any day that will be suitable to the Applicant- Appellant and the respondent-CBI is also ready and willing for hearing of the appeal but the Applicant-Appellant obviously being aware that there is no merit in this appeal is not getting ready for hearing of the appeal on its merit and is only interested for bail and suspension of execution of the sentence imposed upon him without serving out the sentence imposed upon him by hook or crook. It is thereafter submitted by Mr Sinha that this conduct of the Applicant-Appellant speaks volumes about the fact that there is no merit in this appeal. It is also submitted that in view of this conduct and the facts of the case, there is every chance of the Applicant-Appellant absconding if released on bail considering the fact that he has already been convicted in two of the cases and he is to face trial in five of the cases where there is every likelihood of his being convicted.
Mr. Sinha, the learned counsel for the Central Bureau of Investigation next submitted that for suspension of execution of the sentence and granting bail to the Applicant-Appellant on the ground for undergoing half of the maximum sentence, following twin conditions are required to be satisfied:
(i) There is no likelihood of the appeal being taken up in near future; and
(ii) The appellant has undergone half of the maximum sentence imposed upon him in that particular case against the judgment of which the appeal has been preferred.
But as in this case neither of the two conditions is existing, as the Court may finally dispose of the appeal on any day and has even fixed the appeal for final decision on several 8 occasions but because of non-cooperation of the appellant by praying for time this appeal could not be disposed of finally so far and as the appellant has not undergone half of the maximum sentence as he has undergone only sentence of five months and eight days out of the maximum sentence of five years in this case, hence this ground of the Applicant- Appellant for suspension of execution of sentence and four been released on bail has no legs to stand.
So far as Section 436A of Code of Criminal Procedure is concerned it is submitted by Mr. Sinha, that the same is not applicable to appeals and same is applicable only to criminal trials as in the verbatim of the section itself it has been mentioned that the same is applicable to under trial prisoners, so by no stretch of imagination it can be said that the convict is an under trial prisoner and also the stage at which the same will be applicable has been mentioned in the section itself being during the period of investigation, inquiry or trial under the Code of Criminal Procedure and certainly it cannot be said that appeal comes under investigation, inquiry or trial.
It is next submitted by Mr Sinha that co-accused-Md. Ilyas Hussain @ Md Illiyas Hussain in the criminal appeal arising out of R.C. No.4(A)/1997-R was granted bail vide the order passed in I.A. No.4748 of 2020 (Cr. Appeal (SJ) No.1480 of 2018) by another predecessor coordinate bench of this roster by inter alia observing as under:
"Xxxx Counsel appearing on behalf of the Central Bureau of Investigation opposes the prayer of the appellant and submits that Section 427 of the Code of Criminal Procedure will be applicable, but, submits that the present case, which is before this Court, is the first conviction Xxxxxxx."
Hence, it is submitted by Mr Sinha that there is no merit in the three instant Interlocutory Applications hence the same be rejected and the Applicant-Appellant ought not to be admitted to bail.
9Having heard the submissions made at the Bar, it is pertinent to mention here that it is a settled principle of law that that where the accused is convicted for offence punishable under the Prevention of Corruption Act, 1988 it would not be prudent and desirable to give protection to the convict under Section 389 of "the Code of Criminal Procedure" as has been reiterated by the Hon'ble Supreme Court of India in the case of Shiv Kumar v. State (NCT of Delhi), reported in (2008) 17 SCC 122, paragraph no.7 of which reads as under :-
"7. This Court has observed in several cases that where the accused is convicted for offence punishable under the Act, it would not be prudent and desirable to give protection under Section 389 of "the Code". However, taking into account the peculiar circumstances of the case we request the High Court to dispose of the appeal as early as practicable."
It is also pertinent to mention here that this Court can hear and dispose of this appeal on merits on any day which is suitable to the applicant-appellant. It is also relevant to mention here that this Court has heard and disposed of all such appeals under the roster heading 'P.C. Act Cases' in which the appellants were ready for final hearing of the appeals and even several appeals filed in the year 2020 including the appeal having voluminous documents, where the Lower Court Records in view of the voluminous documents were to be transported to this Court in big tin trunk have already been finally disposed of after the Covid-19 pandemic set in by virtual mode, hence this appeal can also be disposed of as and when the appellants get ready for hearing of these appeals. It is needless to mention here that there has not been many judgments of conviction involving the offences punishable under the penal provisions of the Prevention of Corruption Act,1988, of the year 2021 in this part of the country, because of the restrictions imposed by the administrative side of this court upon the trial courts restraining them from examining the witnesses because of the Covid-19 pandemic.
10So far as the contention of the order of granting of bail by the Hon'ble Supreme Court of India to the co-accused- Ex-Minister Md. Ilyas Hussain @ Md Illiyas in Cr. Appeal No.810 of 2020 arising out of Special Leave Petition (Cr.) No.5022 of 2020 is concerned, perusal of the said order reveals that in the said order, it has been mentioned that an application under Section 389 of Code of Criminal Procedure was filed by the co-convict- Ex-Minister Md. Ilyas Hussain @ Md Illiyas before this Court and the prayer in that behalf was rejected by this Court and out of maximum imprisonment of 5 years, the said appellant- petitioner has completed more than 2 years and 5 months of actual imprisonment and on that account, the trial court was directed to release the co-accused- Md. Ilyas Hussain @ Md. Illiyas subject to the such condition as the trial court may deem fit.
It is pertinent to mention here that the co-convict- Md. Ilyas Hussain @ Md. Illiyas filed I.A. No.4795 of 2020 before this Court in Cr. Appeal (SJ) No.444 of 2019 with a prayer for releasing him on provisional bail for three months and the said interlocutory application is still pending and has not yet been disposed of by this Court hence this Court has never rejected any application under Section 389 of Code of Criminal Procedure of the co- convict- Md. Ilyas Hussain @ Md. Illiyas. Perusal of the order dated 22.09.2020, passed in the said I.A. No.4795 of 2020 reveals that on that day the learned counsel for the said Md. Ilyas Hussain @ Md. Illiyas prayed for time to advance arguments as to why the principle of law reiterated by the Hon'ble Supreme Court of India in the case of Shiv Kumar vs. State (NCT of Delhi) reported in (2008) 17 SCC 122 (supra) will not be applicable to the facts of that case and co-convict-Md. Ilyas Hussain @ Md Illiyas has not even filed any petition for suspension of sentence before this Court in his connected appeal arising out of the same impugned judgment against which this appeal has also been preferred.
11So far as the contention of the learned counsel for the Applicant-Appellant regarding the granting of bail and suspension of execution of sentence of the Applicant-Appellant on the ground of undergoing half of the sentence is concerned, without going to the merits as to whether the Applicant- Appellant has undergone half of the maximum sentence in view of the provisions of Section 427 of Code of Criminal Procedure or not, at this stage, assuming for the sake of arguments, the Applicant-Appellant has undergone half of the maximum sentence still this Court is of the considered view that the Applicant-Appellant is not entitled to be released on bail and suspension of execution of the sentence on the ground of undergoing more than half of the sentence simpliciter because it is a settled principle of law for releasing a convict on the ground of undergoing half of the sentence, the twin conditions must exist;
One is that there is no chance of the appeal of being taken up for hearing and final disposal in near future; and The second condition is that the Applicant-Appellant has undergone half of the maximum sentence imposed. It is needless to mention that the release of a convict on the ground of half of the sentence undergone is not based upon any statutory provision of law rather the same is based on the principle of violation of the fundamental rights of speedy trial as enshrined under Article 21 of the Constitution of India. In the case of Hussainara Khatton & Ors. Vs. Home Secretary, State of Bihar (1980 1 SCC 108), the Hon'ble Supreme Court of India recognized the right of speedy trial to be a fundamental right under Article 21 of the Constitution of India. In the case of Akhtari Bi (Smt.) v. State of M.P., reported in (2001) 4 SCC 355 which case is also relied upon by the learned counsel for the Applicant-Appellant in his written notes of arguments, the Hon'ble Supreme Court of India has observed as under in paragraph no.5:-
12"5. To have speedy justice is a fundamental right which flows from Article 21 of the Constitution. Prolonged delay in disposal of the trials and thereafter appeals in criminal cases, for no fault of the accused, confers a right upon him to apply for bail. This Court has, time and again, reminded the executive of their obligation to appoint requisite number of Judges to cope with the ever-increasing pressure on the existing judicial apparatus. Appeal being a statutory right, the trial court's verdict does not attain finality during pendency of the appeal and for that purpose his trial is deemed to be continuing despite conviction. It is unfortunate that even from the existing strength of the High Courts huge vacancies are not being filled up with the result that the accused in criminal cases are languishing in the jails for no fault of theirs. In the absence of prompt action under the Constitution to fill up the vacancies, it is incumbent upon the High Courts to find ways and means by taking steps to ensure the disposal of criminal appeals, particularly such appeals where the accused are in jails, that the matters are disposed of within the specified period not exceeding 5 years in any case. Regular Benches to deal with the criminal cases can be set up where such appeals be listed for final disposal. We feel that if an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the court. In computing the period of 5 years, the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted. There may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them. We request the Chief Justices of the High Courts, where the criminal cases are pending for more than 5 years to take immediate effective steps for their disposal by constituting regular and special Benches for that purpose."(Emphasis supplied) It is pertinent to mention here that while enunciating this principle, the Hon'ble Supreme Court of India has very much in its mind the denial of fundamental right of speedy trial guaranteed under Article 21 of the Constitution of India to the appellant of that case and thus for the purpose of computing the period beyond which the convicts can be released on bail, the 13 Hon'ble Supreme Court has held that if an appeal is not disposed of within the aforesaid period of five years for no fault of the convicts, such convicts may be released on bail on such condition as may be deemed fit and proper by the Court and the Hon'ble Supreme Court also went on to say that in computing the five years delay which is attributable to the convict or his counsel can be deducted. This in other words means that if the delay in disposal of the appeal is caused by the appellant or his counsel certainly that will not entitle the appellant for bail because of the pendency of the appeal for a long time. So from the aforesaid discussions it is crystal clear that if the convict is not cooperating with the hearing of the appeal, he cannot take the plea that merely because he has undergone half of the sentence, he has to be released on bail and if such a proposition is accepted it will lead to an absurd consequence whereby the sentence imposed by the trial court will automatically be reduced to half of what has been imposed, without the appeal being heard because of non- cooperation of the appellant.
This view of the Hon'ble Supreme Court is also reiterated in the Judgment of Hon'ble Supreme Court in the case of Shiv Kumar vs. State (NCT of Delhi) (supra) where in the case involving the offences punishable under penal provisions of Prevention of Corruption Act, 1988 the Apex Court did not release the appellant convict on bail and instead requested the High Court to conclude the trial. Similarly in the case of Salim Javed vs. State of Rajasthan reported in (2006) 9 SCC 602 where also before releasing the appellant on bail, the Apex Court has taken into consideration the submissions made on behalf of the appellant that there was no chance of the concerned appeal to be heard in near future. Similarly, in the case of Dinesh Kumar Sinha vs. State of Jharkhand through C.B.I. reported in (2009) 6 SCC 628, the Hon'ble Supreme Court also considered that there is no possibility of early hearing of the appeal in the High Court and therefore, the bail was granted to the appellant of that case concerned. Principally basing upon this principle, the legislature 14 introduced section 436A in the Code of Criminal Procedure, 1973 in the year 2000 by way of Amendment in the year 2005 vide Section 36 of Act No.25 of 2005 with effect from 23.06.2006 of course which provision of law is only applicable to the stage of proceeding before final judgment is passed by the trial court, and explanation that section which reads as under
Explanation.- In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.
Also provides for excluding the delay in in proceeding caused by the accused in computing the period of detention for granting bail in terms of the said provision of law.
So far as the judgment of Hon'ble Supreme Court in the case of Kamal vs. State of Haryana (supra) is concerned, no principle of law as such was laid down in that case and there is no material in the record to show that in that case, the Court was ready for hearing of the appeal on its merit but the appellant was taking time and still he was granted bail.
So far as the Pinku and others vs. State of Uttar Pradesh (supra) is concerned, in that case, the appellant was undergoing sentence since the year 2005 and though the appeal was filed in the year 2007 still that appeal could not be heard and disposed of till 11.10.2018, when the appellant was admitted to bail.
Same is the case in the case of Lalu Prasad @Lalu Prasad Yadav versus State of Jharkhand Through Central Bureau of Investigation (AHD) (supra) relied upon by the learned counsel for the applicant-appellant, and in that case also the coordinate bench of this case dealing with that case under the roster heading "AHD scam cases" has not stated anything to suggest that the court was ready for hearing of the appeal but the appellant was running away on one pretext or the other from hearing of the appeal like the facts of this case where though the appeal was fixed for final disposal but the appellant did not cooperate and 15 has been praying for time and till today and the Applicant- Appellant is not cooperating for hearing of the appeal on one pretext or the other.
So the facts of those cases are different from the facts of this case and the ratio of those cases is not applicable to the present case.
So far as the contention of the Applicant-Appellant regarding applicability of Section 436-A of Code of Criminal Procedure to the criminal appeals is concerned, this Court is not persuaded by the enunciation of law by the Jammu and Kashmir High Court regarding applicability of Section 436-A of Code of Criminal Procedure to criminal appeals. This Court is of the considered view that Section 436-A of Code of Criminal Procedure which was incorporated in the Code of Criminal Procedure by way of Amendment in the year 2005 vide Section 36 of Act No.25 of 2005 with effect from 23.06.2006 is only applicable to the stage of proceeding before final judgment is passed by the trial court basically for four reasons;
(i) Because the legislature thought it fit to introduce Section 436A in Chapter XXXIII of Code of Criminal Procedure which deals with the provision of bail and bail bonds during the enquiry, investigation or trial and not in chapter of XXIX of Code of Criminal Procedure which deals with the appeal.
(ii) If the legislature had intended that the benefit under Section 436-A of the Code should be given to a convict before an Appellate Court, it would have suitably amended Section 389 of the Code of Criminal Procedure. The legislature having not done so shows its intention was limited to extending benefit only to an under-trial prisoners and not to convicts whose appeal is pending before the Appellate Court under Section 374 of the Code.
16(iii) If it is held that section 436A of the Code of Criminal Procedure, 1973 is applicable to criminal appeals also then it will lead to an absurd consequence where an accused completing half of the sentence imposed upon is him during the trial may not apply under Section 389 of the Code for suspension of sentence and grant of bail, but he can claim the release from detention even without suspension of sentence.
(iv) the Verbatim of Section 436A which reads as under:-
"436A. Maximum period for which an undertrial prisoner 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.
Explanation.--In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded."
says that no person shall in any case be denied bail during the period of investigation, enquiry or trial for more than maximum period of imprisonment provided for the offence under the law but the verbatim is not or the maximum period of imprisonment imposed by a Court. Had it been the intention of legislature of making 17 Section 436A of the Code of Criminal Procedure applicable for the bail in criminal appeals is also, it must have incorporated the words like "or the maximum sentence imposed by any trial court" in the said section. Thus it can very well be said that Section 436-A of the Code of Criminal Procedure, 1973 is restricted in its operation to grant of bail to an under-trial prisoner 'during the period of investigation, inquiry or trial'.
So far as the applicability of Section 427 of Code of Criminal Procedure is concerned, both the Applicant-Appellant and the respondent have filed certificates from the jail authority. The jail authority has categorically mentioned that the Applicant- Appellant was in custody for a period of five months and eight days as a prisoner during the trial of the case.
Section 427 (1) of Code of Criminal Procedure which reads as under:
427. Sentence on offender already sentenced for another offence.
(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence: Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.(Emphasis supplied) Envisages that when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent imprisonment shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.18
It was open for the Applicant-Appellant while the hearing on the point of sentence was going on before the trial court in this case after his conviction to make a prayer before the trial court that the sentence which was passed by the trial court in R.C. No.2(A)/1997-R out of the Judgment of which case this appeal has arisen to run concurrently with the sentence of R.C. No. 4(A)/1997-R and upon such prayer made or otherwise, had the trial court ordered that the sentence of R.C. No. 2(A)/1997-R shall run concurrently with the sentence of R.C. No.4(A)/1997-R then only the Applicant-Appellant could have been in a position to undergo both the sentences concurrently but the perusal of the impugned judgment reveals that no such argument has been advanced by the Applicant-Appellant at the time of hearing of sentence after his conviction at the conclusion of trial, before the trial court nor the trial court has passed any such order for the sentences of this case to run concurrently with the sentence of any previous conviction of the Applicant-Appellant. Having not done so, it is not open for the Applicant-Appellant to take a plea of that he is also undergoing the sentence imposed upon him by the trial court in this case more so because undisputedly the Applicant-Appellant has not submitted his bail bond after being granted bail by the appellate court in the appeal arising out of the judgment of the case bearing no. R.C. No. 4(A)/1997-R and under such circumstances this Court is of the considered view that at present the Applicant-Appellant is undergoing the sentence of the said R.C. No. 4(A)/1997-R and the sentence of imprisonment imposed upon him by the impugned judgment of conviction and order of sentence this case shall commence at the expiration of the imprisonment which he has been previously sentenced to in the said R.C. No. 4(A)/1997-R. Thus the Applicant-Appellant has not undergone half of the sentence and he has only undergone sentence of five months and eight days, so far as the sentence of imprisonment imposed by the trial court in this case is concerned.
19It is also a settled principle of law that for granting of post-conviction bail to a convict under Section 389 of Code of Criminal Procedure, there has to be strong and compelling reasons and such strong and compelling reason must be recorded in the order granting bail as has been observed by the Hon'ble Supreme Court of India in the case of Preet Pal Singh v. State of U.P. and Anr. reported in (2020) 8 SCC 645, paragraph no.35 of which reads as under:-
"35. Xxxxxxxxxxxx However, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC."(Emphasis supplied) So far as the grounds of the Applicant-Appellant for bail because of ailments are concerned, the same is neither strong nor a compelling reasons to admit the Applicant-Appellant on bail. More so, because of the submissions made by the learned counsel for C.B.I. that there is every chance of the Applicant- Appellant absconding if released on bail and admittedly, the Applicant-Appellant has been convicted in another case and facing trial in five other cases.
Considering the aforesaid facts, this Court is of the considered view that this is not a fit case where the Applicant- Appellant be admitted to bail during the pendency of the appeal or to suspend the execution of the sentence of the applicant- appellant.
Accordingly, these interlocutory applications being without any merit are rejected.
(Anil Kumar Choudhary, J.) 20 Cr. Appeal (SJ) No. 469 of 2019 List this appeal for hearing in due course or as and when mentioned by the appellant on becoming ready for hearing of the appeal on merit.
(Anil Kumar Choudhary, J.) A.F.R. -Sonu-Gunjan/