Madhya Pradesh High Court
Rahul vs The State Of Madhya Pradesh on 7 January, 2022
Author: Virender Singh
Bench: Virender Singh
THE HIGH COURT OF MADHYA PRADESH : JABALPUR (Division Bench) (Rahul vs State of Madhya Pradesh) Order on LA. No.12087/2021 (a repeat application for suspension of sentence) Date of Order : 07-01-2022 Whether approved for reporting : Yes Law laid down : sentence of any term of a convict cannot be suspended just because he has served half of the sentence or any particular period of the sentence but, amongst other factors, it ts required to consider the mertts like nature of accusation, been committed and the desirability of the accused being released on bail after conviction. e Section 389 of CrPC makes it clear that while granting suspension, it is mandatory for the Court to record reasons. ® Though the subsequent bail/suspension application is maintainable, there must be some material change in the facts and circumstances or the law. Significant Paragraph Nos. (7,9 and 16 1 Dashrath vs State of M.P. : Cri. Appeal No. 1248/2005 delivered by a Pull Bench of this Court on 26.04.2017 CRA-740-2016 THE HIGH COURT OF MADHYA PRADESH CRA No.740 of 2016 (Rahul vs the State of Madhya Pradesh) Jabalpur, Dated 07-01-2022. Per Virender Singh, J: Shri Manish Kumar Tiwart, counsel for applicant/appellant. Ms. Shikha Singh Baghel, Panel Lawyer for the State. LA. No.12969/2021 and LA. No.21835/2021 are taken up. Supreme Court as well as of this Court on record and to consider them while passing the order on suspension application being LA. No. 12087/2021. The LAs are allowed and the orders are taken on record. Heard on 1A. No.12087/2021. This is the seventh application under Section 389 of CrPC for suspension of sentence to the appellant who stands convicted under Sections 8/20(b)G1)(C) and 8/20(b)G1)(C) rAyv 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 and has been awarded imprisonment for 12 years' R.I. for each offence and fine of Rs.1,25,000/- for each offence with default stipulation. 2. The prosecution case is that when acting on a credible piece of information, the police raided a place, two out of the three Ayush was caught. He was found tn possession of 10 kg Ganja. On his disclosure, the police searched the house of his associates (i.e. present applicant and other co-accused person) and recovered another 44 kg Ganja. Hence, total 54 kg legal Ganja was recovered. t.3 CRA-740-2016 3. The fourth application (LA. No.18299/2019) of the applicant has been dismissed on merits vide order dated 28.11.2019 while all other previous applications have been withdrawn. 4. This time the suspension has been pleaded on the sole ground of period of custody. According to the Id. counsel, out of the 12 years' sentence awarded, the applicant has already suffered 07 years 07 months and 23 days. 5. Perusal of the order sheets would reveal that considering 7 years custody period, the sixth application G.A. No.8738/2020) of the applicant was disposed off with a direction to file an application for early hearing which may be considered sympathetically, but no such application has been filed, instead the counsel for the applicant retreated his steps citing the reason that he needed to seek mstructions from his chent. 7. With regards to the ground taken by the applicant this time, discussing a series of judgements and orders of the Hon'ble Supreme Court as well as of various High Courts delivered from time to trme on the issue, the Full Bench of this Court in Dashrath vs State of MLP. (CrA. No.1248/2005) delivered on 26.04.2017, has held that sentence of any term of a convict cannot be suspended just because he has served half of the sentence or any particular period of the sentence. It has been concluded that while considering suspension, the Court, amongst other factors, 1s required to consider the nature of accusation made against the accused, gravity of the offence, the manner in which the crime is Land CRA-740-2016 alleged to have been committed and the desirability of the accused bemg released on bail after conviction. 8. Reference of Section 389 of CrPC would be apt here, which reads as under: 389. Suspension of sentence pending the appeal; release of appellant on bail.--(1) Pending any appeal hy a convicted person, the Appellate Court mav, far reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond: Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release: Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall -- fi} where such person, being on bail, is sentenced to imprisonment for a term not exceeding three vears, or (il) where the offence of which such person has been convicted is a bailable ene, and he ts on bail, order that the convicted person be released on bail, unless there are special reasons Jor refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1); and the sentence of fn CRA-740-2016 imprisonment Shall, so long as he is so released on hail, be deemed to be suspended. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is se sentenced, d) (Emphasis supphe 9. Asimple and plain reading of this Section makes it clear that while granting suspension, it is mandatory for the Court to record reasons. In the judgements of The State of Haryana v. Hasmat, (2004) 6 SCC 175, State of Maharashtra v. Madhukar Wamanrao Smarth, (2008) 5 SCC 721, Kishori Lal v. Rupa, (2004) 7 SCC 638 and Vasant Tukaram Pawar v. State of Maharashtra, (2005) 5 SCC 281 (also referred to in Dashrath's case supra), the Apex Court has uniformly laid down that one of the essential ingredients of Section 389 Cr.P.C is the requirement for the appellate Court to record reasons in writing for ordering suspension of execution of sentence and the requirement of recording reasons clearly indicates that there has to be careful consideration of relevant aspects. In the above context, the reasons refer to reasons which justify the suspension of sentence in all judicial senses. Term of jail served may be one of the reasons in a given case but may not justify the conscious of the Court to decide the prayer of suspension without consideration of the evidence produced on record, its quality and reliability, the nature and gravity of the offence, the manner and method in which it has been committed, its impact over the society or the public at large, the object of the law in dealing with the crime, the special enactment CRA-740-2016 introduced to curb the menace ete. and peculiar facts and circumstances of any particular case. 10. No straight jacket formula can be applied in all cases that after completion of half of the sentence awarded, the convict is entitled for suspension in each and every case. Neither the law nor the Hon'ble Supreme Court has ever intended this in any of its verdicts delivered so far. 11. Itis the duty of the Courts to consider both sides of the coin. Much hue and ery is being made in today's times in the name of Human Rights of the convicts, but while the Courts are fully conscious to their human rights, they must also consider the Human Rights of the victims, whose responsibility has been taken by the State and do not have much say in the system. It is the Courts who should take the responsibility to maitain a balance between the rights of the oppressor and the rights of the sufferer. Granting suspension without assigning any reason, simply on the basis of period of term completed, can never satisfy or justify a judicial conscious. 12. By way of LA. No.12969/2021, the Id. counsel for the applicant has cited orders of the Supreme Court, being order dated 27.09.2004
passed in Special Leave to Appeal (Cri) No.3117/2004 (Miansingh vs Union of India), order dated 19.02.2018 passed in SLP(Cri.) No.861/2018 (Mayuresh Nandkumar Purohit vs Kaushik Vianna) and order dated 13.07.2021 passed by Division Bench of this Court in Criminal Appeal No.1536/2018 (Gopaldas & ors. vs State of MLP.). And, through LA. No.21835/2021, the applicant further cited order G CRA-740-2016 dated 17.11.2021 passed by Division Bench of this Court tn Criminal Appeal No.782/2013 (Saivad Sasheb Ali & ors vs State of M.P.), order dated 04.12.2021 passed by Single Bench of this M.P.), order of Supreme Court dated 21.01.2013 passed in SLP(Cri.}) No.9180/2012 (Ramnik Singh vs Intelligence Officer) and judgment in 8. Kasi vs State reported as 2020 SCC Online SC
529.
13. In the orders rendered im Mansingh, Mayuresh Nandkumar Purohit and Ramnik Singh's case, the Hon'ble Supreme Court granted suspension considering the overall facts of each case coupled with the period of custody. None of the orders completion of a specific period of custody. Similar is the situation with the orders of this Court cited supra. Besides, the law laid down by a Full Bench in the case of Dashrath (supra) has not been brought to the notice of co-ordinate Bench of this Court while considering suspension application of the applicants therein. Theretore, the orders cited by the applicant are of no avail to him.
14. Thus, we have no hesitation to say that suspension cannot be granted by simply observing that the appellant has completed half of the sentence or any particular term of the sentence.
15. In the present case, the suspension is sought for only on the ground that the applicant has completed half of the sentence that too in a case of recovery of huge commercial quantity of contraband and when on merits, this Court has already dismissed CRA-740-2016 his application on several occasions. Therefore, in the considered opinion of this Court, no case for granting suspension is made out.
16. Though, there ts no doubt that the subsequent bail material change in the facts and circumstances or the law. The parameters to be observed by High Court while dealing with the have been considered by the Apex Court in Kalvan Chandra Sarkar vs Rajesh Ranjan (2005) 2 SCC 42 wherein it is held :
"19. The principles of res judicata and such analogeus principles although are not applicable in a criminal proceeding, still the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher court or a coordinate Bench must receive serious consideration at the hands of the court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the courts must give due weight to the grounds which weighed with the former or higher court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.
2. The decisions given by a_ superior fortum, undoubtedly, are binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is roem for filme a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires vinod CRA-740-2016 the earlier view being interfered with or where the earlier finding has become obsolete. This ts the limited area in which an accused who has been denied bail earlier, can move a subsequent application.
Therefore, we are not in agreement with the argument of learned counsel for the accused that in view of the guarantee conferred on a person under Article 21 of the Constitution, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by the courts earlier, including the Apex Court of the country."
17. Therefore, in view of the aforesaid, it is not open to the agerieved person to file successive bail application on the ground already rejected by the Court earlier without any fresh material, factual or legal. Granting bail by reconsidering the same grounds and by substituting its subjective satisfaction practically overrules findings of the Court recorded in the earlier order and obviously this is not permissible.
18. Except the period of custody, no other material change tn the facts and circumstances has been pointed out by the learned counsel for the applicant, therefore, LA. No.12087/2021 stands dismissed.
19. Being an admitted appeal, let it be listed for final hearing in due course.
(Smt. Anjuli Palo) (Virender Singh) Judge Judge Digitally signed by VINOD VISHWAKARMA Date: 2022.01.28:10:54:51 405'30' ee