Jammu & Kashmir High Court
Amir Sheikh vs Stateof J&K on 25 October, 2019
Author: Rashid Ali Dar
Bench: Rashid Ali Dar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRA No. 14/2018,
Crl.M No. 934/2019 &
Crl.M No. 1008/2019
Amir Sheikh
...Appellant(s)
Through: Mr. A. K.Shan, Advocate
V/s
Stateof J&K
...Respondent(s)
Through:None.
HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
CORAM:
HON'BLE MR. JUSTICE RASHID ALI DAR, JUDGE
ORDER
Rashid Ali Dar-J Crl.M No. 934/2019 & Crl.M No. 1008/2019
1. In terms of instant application, prayer is made by the applicant/appellant for enlarging him on bail while putting forth the following grounds:-
(i) That the applicant/appellant has spent more than five years in jail.
(ii) That the bail application filed by the applicant/appellant could not be reached for more than 15 months and so could not be considered.2 CRA No. 14/2018
(iii) That the father of the applicant/appellant is an elderly person, who is required to be taken care of by the applicant/appellant.
2. Supplementary application (Crl.M No.1008/2019) has also been filed stating therein that the omission to seek suspension of sentence (in terms of application) is not deliberate. However, it is stated that the applicant inadvertently failed to make prayer in the bail application for suspension of sentence.
3. Nominal Roll of the convict-applicant has been called pursuant to the order dated 12.11.2018 passed by this Court, which has been received. It indicates that the applicant has undergone a term of 5 years, two month and two days of sentence (till 05.09.2019).
4. Objections to the application have not been filed.
5. Earlier an application bearing IA No. 01/2018 filed by the applicant/appellant for suspension of sentence stood withdrawn on 10.12.2018.
6. Mr. Shan, learned counsel for the applicant,while pointing out the fact that the appellant herein has undergone imprisonment of more than half of which he has been sentenced by the learned trial court submitted it being an overwhelming factor which can be considered while examining the merit of the application made for grant of bail and suspension of sentence. Reliance has been placed on anorder passed by the Division Bench of this Court in MP No. 01/2007 in CR. Appeal No. 53/2014 captioned Jeet Raj vs. Stateon 24.07.2017. The applicant in the said case had been convicted under Section 376 RPC and sentenced for a term of 12 years. Taking into account the factum of having undergone half of the sentence, the applicant was granted 3 CRA No. 14/2018 bail and his sentence was suspended. Reference of judgment of Hon'ble Supreme Court in Mittu Pasi and anr. Vs. State of Jharkhand' 2016 (8) Scale 654 has been made in the said judgment.
7. We have gone through the judgment of the learned trial court. It indicates that the applicant/appellant herein has been sentenced to imprisonment for ten years and fine of Rs. 30,000/-. In default of payment of fine, he has to undergo simple imprisonment for six months.Accordingly, we have considered the applications in light of the material available before us. It is no more res integra that during pendency of an appeal, the appellate court is empowered to suspend sentence and release an appellant on bail.Such an order can be passed but only after affording opportunity to the Public Prosecutor in case the offence is punishable with death or life imprisonment or imprisonment for ten year or more and after recording reasons. In the instant case the State too had an opportunity to put forth its stand in case and bring forth a fact required to be brought to notice of the Court in opposition to the bail application, which, however, has not been done.
8. In Kashmira Singh Vs. State of Punjab reported in (1977) 4 SCC 291, their Lordship haveheld that so long as the 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. It has also been underlined that when a person is convicted, he cannot be said to be an innocent until the final decision is recorded by the superior court. 4 CRA No. 14/2018
9. In Atul Tripathi vs. State of Uttar Pradesh and Ors,(2014) 9 SCC 177,their lordships have highlighted the difference between the procedure for consideration of bail at pre-conviction stage and suspension of sentence at post-conviction stage. The private respondents in that case had been convicted by the court of Additional Sessions Judge under Section 302 and 120-B IPC and had been awarded sentence of imprisonment for life with fine. In toto seven persons had been convicted but bail had been granted only to four. The High Court was directed to consider afresh the applications of the applicants for bail after following the procedure indicated in the said judgment.
10.Hon'ble Apex Court in the judgment of Bagwan Ram Shinde Gosai Vs. State of Gujarat MANU/SC/0347/1999, 1999 CriLJ 2568 observed that when a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Pertinent observations are:-
"When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of-course, if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of 5 CRA No. 14/2018 expeditiously the appellate court must bestow special concern in the matter of suspending the sentence, so as to make the appeal right, meaningful and effective. Of- course appellate courts can impose similar conditions when bail is granted."
11.In another case Bhim Singh Vs. Union of India, 2015(13) SCC 603, their Lordships directed that jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judges to pass appropriate orders in jail itself for release of under-trial prisoners who have completed half period of imprisonment.
12.It is evident that the applicant/appellant herein has served the sentence of more than five years and having in view the same and taking note of that the main appeal cannot be disposed of in immediate future, it would be expedient in the ends of justice to suspend the sentence. The purpose of filing the appeal would stand frustrated in case the applicant/appellant hereinafter isable to show that he is entitled for acquittal on final consideration of the matter but continues to remain in custody. Accordingly, both the applications mentioned above are allowed and the sentence is suspended till next date of hearing before the Bench. The accused/applicant shall be released from the custody subject to the condition that he furnishes bail bond to the tune of Rs. 1.00 lac with two sureties of the like amount to the satisfaction of Registrar Judicial,Jammu on the following terms and conditions:-
a) That he shall not leave the State of J&K without prior permission;
b) That he will remain present before this Court on each and every date of hearing;
c) Parallel Personal bond be elicited from the applicant/convict.6 CRA No. 14/2018
13.List the main appeal on 13.12.2019.
14.Copy of this order be sent to the concerned Jail authority, for information and compliance.
(Rashid Ali Dar) (Dhiraj Singh Thakur)
Judge Judge
Jammu
25.10.2019
Karam Chand
Whether the order is speaking : Yes / No
Whether the order is reportable : Yes / No
KARAM CHAND
2019.11.01 09:27
I attest to the accuracy and
integrity of this document