Rajasthan High Court - Jodhpur
Dinesh Kumar vs State on 25 January, 2021
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 732/2020 Dinesh Kumar S/o Shri Achla Ram, Aged About 30 Years, By Caste Bheel,r/o Mangla Farm Bheelo Ki Bhadni, P.s. Samdari, District Barmer. (Presently Lodged In Central Jail Jodhpur).
----Petitioner
Versus
State, Through P.P.
----Respondent
For Petitioner(s) : Mr. Kalu Ram Bhati
For Respondent(s) : Mr. Vikram Sharma, PP
JUSTICE DINESH MEHTA
CAV Order
Reserved on :: 22/01/2021
Pronounced on :: 25/01/2021
Reportable
1. Instant application filed under Section 389 of the Code of Criminal Procedure, being 5th Application for Suspension of Sentence has come up for consideration before this Court. Applicant's three previous applications have been rejected by Coordinate Benches of this Court and last one by this Court.
2. The previous application for suspension of sentence (4 th) was rejected by this Court on 21.05.2020, observing thus:-
"Having regard to the seriousness of the offence and clear findings recorded by the Court below, this Court is not inclined to suspend the sentence awarded to the petitioner, simply because he has served out half of the sentence.
Petitioner's three successive bail applications have already been rejected.(Downloaded on 25/01/2021 at 09:17:20 PM)
(2 of 17) [SOSA-732/2020] The fourth application for suspension of sentence is dismissed, for the reasons noted above."
3. Mr. Kalu Ram, learned counsel for the applicant, came up with the specific case that the applicant, who has been convicted for the offence under Section 376 IPC, vide judgment dated 27.09.2017, passed by the learned Additional District & Sessions Judge, Balotra in sessions Case No.31/2016, has already served sentence of 5 years 2 months, out of the total sentence of 7 years, and thus, he is entitled to be enlarged on bail in light of various orders passed by this Court and Hon'ble the Supreme Court. In support of his submission so made, learned counsel relied upon the following orders:-
(i) Mayuresh Nandkumar Purohit Vs. Kaushik Manna & Anr., reported in 2018 Cr.L.R. (SC) 251;
(ii) Salim Javed Vs. State of Rajasthan, reported in (2006) 9 SCC 602;
(iii) Akhtari Bi Vs. State, reported in (2001) 4 SCC 355;
(iv) Order dated 23.07.2019, rendered in the case of Bhura Ram Vs. State, S.B. Criminal Misc.
Suspension of Sentence Appl. (Appeal)
No.588/2019;
(v) Order dated 09.11.2011, rendered in the case of Vagta Ram Vs. State of Rajasthan, reported in 2012(3) CJ (Cri.)(Raj.) 1346; and
(vi) Order dated 28.05.2020 rendered in the case of Hansraj Vs. State of Rajasthan, S.B. Criminal Misc. Suspension of Sentence Application (Appeal) No.781/2017.
4. Learned counsel further submitted that, when this Court had rejected applicant's previous application on 21.05.2020, the applicant had completed 4 years and 3 months in jail but considering the fact that he had criminal antecedents and had not completed 5 years' sentence, his sentence was not suspended.
5. Highlighting that as many as 19 other cases were pending against the applicant; all the cases were for the offences under (Downloaded on 25/01/2021 at 09:17:20 PM) (3 of 17) [SOSA-732/2020] Sections 457 and 380 IPC and in all the cases, he has been acquitted, Mr. Bhati argued that the applicant has been falsely implicated even in the present case.
6. Learned counsel also urged that on two occasions, when the applicant remained on parole, his behaviour has been good and he did not indulge in any offence.
7. Mr. Vikram Sharma, learned Public Prosecutor, on the other hand, opposed the applicant's prayer of suspending the sentence and contended that the applicant has been convicted for a henious crime, viz., rape and thus, his sentence should not be suspended simply because he has served more than five years' imprisonment.
8. Learned Public Prosecutor further submitted that the Trial Court's order is infallible and there is no likelihood of the aplicant's appeal being allowed. He vehemently argued that not only the first application for suspension of sentence was dismissed, finding no prima-facie case in applicant's favour, even the previous application for suspension of sentence was rejected after thoroughly examining the matter on merit. He added that nothing has changed since May, 2020, for which the applicant's sentence should be suspended.
9. Heard.
10. Upon perusal of the orders/judgments, which have been relied by Mr. Bhati, it is apparent that the Courts having found that the concerned applicant has served more than half of the sentence or 5 years' imprisonment, have granted benefit of suspension of sentence.
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11. So far as the judgment of Akhtari Bi (supra) is concerned, Hon'ble the Supreme Court has ordered to release the petitioner considering that she was a lady and her appeal was not likely to come up for hearing in the near future.
12. The moot question to be answered here is, what is the reasoning or jurisprudence behind the practice of suspending the sentence of a convict, once he has served half of the sentence or 5 years, as the case may be?
13. At the first flush, one is reminded of Section 436A of the Code of Criminal Procedure, which reads thus:-
"436-A.-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."
14. But in the opinion of this Court, provisions of Section 436A of the Code of Criminal Procedure are meant for dealing with the cases of under-trials and thus, are applicable only while considering bail application of an accused under Section 439 of the Code. This provision has been enacted with a view to reduce the agony of those under-trials, who are detained in jail so that, as a (Downloaded on 25/01/2021 at 09:17:20 PM) (5 of 17) [SOSA-732/2020] consequence of prolonged trial they are not landed in a situation, wherein they have already served substantial, equal or more than the maximum sentence provided for the offence they are accused of.
15. The question regarding applicability of provisions of Section 436A of the Code in an appeal or in a case where conviction has taken place, recently came up for consideration before the Full Bench of Bombay High Court in the case of Maksud Sheikh Gaffur Sheikh Vs. State of Maharashtra, reported in 2020 CriLJ 3663. The Bombay High Court, after deliberating on the issue in great detail, has held that the provisions of Section 436A of the Code do not apply in the cases of appeal, as there is a clear distinction between the expression "trial" used in Section 436A, and "convict" used under Section 389 of the Code. The relevant part of the judgment of Bombay High Court is extracted hereunder:-
"25. The discussion thus far made would show that even though an appeal could be said to be continuation of trial in the general sense of the term, it is not so for the purposes of Section 436-A of the Code. The word "trial" used in Section 436-A of the Code is for achieving a certain purpose, a defined goal of reducing the woes of a person in jail as he faces trial, even before he is found guilty and to a larger extent also to decongest overcrowded jails. The provision is benefic and remedial and, therefore, it must be understood in the sense which sub-serves the purpose, which remedies the situation or otherwise the remedial medicine may itself become the malady. So, the meaning plainly conveyed by Section 436-A is that its benefit is intended only for under-trial prisoners, and it is not possible to make any different or alternate construction. When two different constructions are not fairly possible, contingency of adopting that construction which favours the convict by granting him benefit of Section 436-A of the Code does not arise and so, rule of liberal construction would have no application here."(Downloaded on 25/01/2021 at 09:17:20 PM)
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16. But then, principles applicable for grant of bail cannot be loosely applied to a case, in which a person has been convicted by a competent court. A case in which finding of guilt has been recorded against an accused, sentence of a convict can definitely be suspended if, the Appellate Court, on appreciation of evidence, comes to a conclusion that the findings recorded by the Court below are prima facie not sustainable. But when it comes to considering the merit of the case, the Appellate Court can suspend sentence of a convict even at the first stage while admitting the appeal.
17. However, where the Appellate Court, after examining the merits of the case, has rejected the application for suspension of sentence, things are entirely different; because his case has already been examined on merit.
18. Adverting to the facts of present case, the applicant's first application for suspension of sentence was rejected by this Court on 27.02.2018, with following observation:-
"Heard learned counsel for the applicant, learned Public Prosecutor, perused the impugned judgment and scanned record of the case.
Having regard to the facts and circumstances of the case and considering the applicant's serious criminal delinquency of mental depravity, I feel disinclined to suspend the sentence.
Consequently, the application for suspension of sentence is hereby, dismissed."
19. A perusal of above order reveals that merit of the case has been gone into by the Court. Even while rejecting applicant's previous application for suspension of sentence vide its order dated 20.05.2020, observations on merit have been made. As such, merit/demerit of the case should not and cannot be a (Downloaded on 25/01/2021 at 09:17:20 PM) (7 of 17) [SOSA-732/2020] touchstone for considering the successive applications for suspension of sentence.
20. Orders cited by Mr. Bhati and able assistance provided by learned Public Prosecutor could hardly help the Court in its quest to find the genesis or source of this practice of suspending sentence after serving 5 years or half of the sentence.
21. Tracing the history back, this Court has learnt that its origin lies in the judgment of Punjab and Haryana High Court dated 18.09.1999, rendered in the case of Dharampal Vs. State of Haryana. In the said case, the Punjab and Haryana High Court, after dealing with various judgments on the subject, culled out following principles governing release of a convict in case the Appellate Court is not in a position to decide the appeal:
"We, therefore, direct that life convicts, who have undergone at least five years of imprisonment of which at least three years should be after 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 case where the very grant of bail is forbidden by law."
22. The above principles laid down by the High Court of Punjab and Haryana are not the principles of universal applicability, as has been observed by the High Court of Punjab and Haryana itself
- these are broad guidelines. These principles have been approved and held to be broad guidelines and not straight-jacket formula by Hon'ble the Supreme Court in the case of Surinder Singh Vs. State of Punjab, reported in 2005 Cr.L.R. (SC) 741. (Downloaded on 25/01/2021 at 09:17:20 PM)
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23. Principles enunciated by Punjab and Haryana High Court are equally applicable, rather have been adopted by this Court in 2005; in the case of Tahir Khan Vs. State of Rajasthan [2005(4) WLC 637]. It will be beneficial to quote the relevant part of the judgment in the case of Tahir Khan:
"31. Whereas the court is conscious of right of the party affected, the court is also conscious of the victim of the crime and the interest of the State. The court is not oblivious of the fact that victims of crime too have rights and therefore, enlargement on bail of a person convicted of serious crime who ultimately could be held guilty would seriously hurt the feelings of the victims. The court has thus to strike the balance between the two conflicting Interests. This is what precisely has been done by the Division Bench of Punjab and Haryana High Court in Dharmpal's case (supra). The categorisation of crimes given in the Punjab Government circular, dated July 8, 1991 issued by the Department of Home Affairs and Justice dealing with the question of premature release, has identified the nature of offences and the period of imprisonment to be actually undergone by the prisoners. In this table, crimes have been divided into five categories i.e., 'A' to 'E', with Categories 'A' and 'B' detailing the most serious crimes and category 'E' being the least of them. This circular with suitable modifications, in our view, as a whole could form the basis for issue of guidelines for this Court as to the manner in which bails ought to be granted to the prisoners whose appeals cannot be heard expeditiously. The categorisation of crimes given in the circular issued by the Punjab Government, referred to above, is reproduced below:
(Periods in years) A B C D E For convicts Convicts who Convicts who Other life Other life whose death have been have been convicts convicts.
sentence has imprisoned for imprisoned for imprisoned for
been life for life for offence life for
commuted to offences for for which offences for
life which death is death is a which the
imprisonment. a punishment penalty but death penalty
and have crimes are not is not a
committed considered punishment
heinous crime. heinous. and have
committed
heinous crime.
Actual Imprison Actual Imprison Actual Imprison Actual Imprison Actual Imprison
Impris- ment Impris- ment Impris- ment Impris- ment Impris- ment with
onment with onment with onment with onment with onment remission
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remission remission remission remission
Results: 14 20 12 18 10 14 10 14 8½ 14
Females 10 14 8 12 8 12 8½ 12 6 10
/ Minors
17. Columns B & D pertain to heinous crimes, the same are reproduced below:
"A. Heinous crimes with reference to column B of 1(1) above are defined as follows:
(i) Offence under Section 302 along with Section 347 of the IPC i.e., Murder with wrongful confinement for extortion.
(ii) Section 302 with Section 375 i.e., murder with rape.
(iii) Offence under Section 396(sic) of IPC i.e., dacoity with murder.
(iv) Offence under Section 302 along with offences under the terrorist and Disruptive Activities (Prevention) Act, 1987.
(v) Offences under Section 302 along with offence under the Untouchability (Offences) Act, 1955.
(vi) Offence under Section 302 where murder has been committed in connection with any dispute over dowry and this is indicated in the judgment of the Trial Court.
(vii) Offence under Section 302 where the victim is a child under age of 14 years.
(viii) Any conviction under Section 120B of the IPC. Henious crimes with reference to column 'D' of the revised policy are defined as follows:
(i) Offence under Section 304B of the IPC i.e., A dowry death.
(ii) Offence under Section 304 along with Section 347 of the IPC i.e., culpable homicide with wrongful confinement for extortion.
(iii) Offence under Section 304 with Section 375 i.e., culpable homicide with rape.
(iv) Offence under Section 304 along with offence under the Terrorist and Disruptive Activities and Disruptive Activities (Prevention) Act, 1987.
(v) Offence under Section 304 where culpable homicide has been committed in connection with any dispute on dowry and this is indicated in the judgment of the Trial Court.
(vi) Offence under Section 304 where the victim is a child under the age of 14 years.
(vii) Any conviction under Section 120B of the IPC i.e., for criminal conspiracy in connection with the above crimes."
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32. The circular making mention of nature of crimes might have been issued by the Department of Home Affairs and Justice of Punjab but in our considered view, if it lays down an acceptable criteria it can be adopted by this Court as well. The nature of crime would be a determining factor in laying down the guidelines. We have already mentioned that we are in agreement with the directions issued in Dharampal (supra), in the matter of grant of bail or suspension of sentence, as the case may be, where the convicts are in jail and have undergone long period of sentence and their appeals have not been listed for hearing.
33. In view of the discussions made above, there will be no need at all to issue any general directions for prisoners who stand convicted of offence, which finds mentioned in Category 'B'. We direct that matters should be left to the decision of the Judges to whom application for bail is made. We, however, direct that the appeals filed by such persons in which bail is denied, should be accorded priority in hearing. Prisoners belonging to Category 'C', 'D' and 'E' need to be enlarged on bail or their sentences need to be suspended if they have undergone at least five years of imprisonment in which at least three years should be after conviction, if they might make an application for the same. The same principle ought to apply to those convicted by court martial and such prisoners should also be entitled to be released after seeking suspension of their sentence. The period of five years should be reduced to four years for female and minors, with at least two years of imprisonment after conviction. We clarify that these directions shall not be applicable in cases where the very grant of bail is forbidden by law. The directions made above, besides being applicable to all the prisoners of category 'C', 'D' and 'E', shall also be applicable to those convicted Under Section 304B IPC. Let all these matters be now placed for hearing in view guidelines, as fully detailed above."
24. Not of much relevance, but for the sake of computing the precedential journey, it may be noted that correctness of the above view was doubted by a Division Bench of this Court and upon a reference made, Full Bench of this Court in a case reported in 2013 Cr.L.J. 4516 (Mohd. Mohsin Khan Vs. State) has reinvigorated the Division Bench judgment in Tahir Khan's case (supra), however, with the following note of caution:- (Downloaded on 25/01/2021 at 09:17:20 PM)
(11 of 17) [SOSA-732/2020] "27. In fact this reference was not called for but since it has come up before us and arguments were advanced at length we have expressed our view as noted above. At the same time, we would like to observe that it is the duty of the court to reach at the conclusion regarding correctness of the judgment delivered by it previously particularly that which has been delivered by the coordinate Bench and adjudge the effect of any error for warrant of review of such earlier judgment. In the instant case we do not find any such circumstances which may warrant review of the judgment in Tahir Khan @ Shakeel (supra)."
25. It is, thus, clear that a convict cannot claim suspension of his sentence as a matter of right, simply upon completion of half of the sentence or more than five years.
26. Sentence can also be not suspended on the basis of serving of sentence when the conviction is under the provisions of NDPS Act, in view of embargo contained in Section 37 of the NDPS Act, as held by Hon'ble the Apex Court in a recent case of Sheru Vs. Narcotics Control Bureau [SLP (Criminal) No.2249-2250 of 2020], dealing with the case of Union of India Vs. Rattan Mallik, reported in (2009) 2 SCC 624. Division Bench of this Court in the case of Daulat Singh Vs. State of Rajasthan, reported in 2015(2) RLW 1761(Raj.), answering the reference has also held the same. Relevant parts of the judgments aforesaid read as under:-
(i) UOI Vs. Rattan Mallik:
"13. It is plain from a bare reading of the non-obstante clause in the Section and Sub-section (2) thereof that the power to grant bail to a person accused of having committed offence under the NDPS Act is not only subject to the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973, it is also subject to the restrictions placed by Sub-clause (b) of Sub-section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz; (i) the satisfaction of the Court that there are reasonable grounds for believing that the (Downloaded on 25/01/2021 at 09:17:20 PM) (12 of 17) [SOSA-732/2020] accused is not guilty of the alleged offence; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds".
The expression 'reasonable grounds' has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. [Vide Union of India v. Shiv Shanker Kesari: 2008CriLJ335] Thus, recording of satisfaction on both the aspects, noted above, is sine qua non for granting of bail under the NDPS Act.
14. We may, however, hasten to add that while considering an application for bail with reference to Section 37 of the NDFS Act, the Court is not called upon to record a finding of not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed offence under the NDPS Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence(s) he is charged with and further that he is not likely to commit an offence under the said Act while on bail. The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail."
(ii) Sheru Vs. Narcotics Control Bureau:
"We have given a thought to the matter and there is no doubt that the rigors of Section 37 would have to be met before the sentence of a convict is suspended and bail granted and mere passage of time cannot be a reason for the same, However, we are faced with unusual times where the Covid situation permeates. We are also conscious that this Court has passed orders for release of persons on bail to de-congest the jail but that but that is applicable to cases of upto seven years sentence.
In the given aforesaid facts and circumstances of the case, we consider it appropriate to enlarge the Appellant on bail on terms and conditions to the satisfaction of the Trial Court.(Downloaded on 25/01/2021 at 09:17:20 PM)
(13 of 17) [SOSA-732/2020] At the insistence of the learned Additional Solicitor General, we clarify that the order has been passed in the given facts of the case and not to be treated as a precedent."
(iii) Daulat Singh Vs. State of Rajasthan:
"11. The authority of Hon'ble the Supreme Court under Article 142 of the Constitution of India is an extraordinary authority and that is not abide by the statutory provisions. The power available can very well be exercised beyond statutory limits if that is required for dispensing complete justice in any case. It shall be pertinent to notice here that as per Article 141 of the Constitution of India the law declared by the Supreme Court shall be binding on all courts within the territory of India, as such, the binding effect in the form of precedent is available to the judgments declaring law by the Apex Court. Article 142 of the Constitution of India nowhere refers judgments but decree or order. The decrees or orders passed by the Apex Court while exercising its extraordinary authority under Article 142 of the Constitution of India cannot be taken as precedent. It shall also be appropriate to mention that the Constitution of India nowhere prescribes any authority to High Courts akin to the powers available to Hon'ble the Supreme Court as per Article 142(1) of the Constitution of India. This Court, thus, is required to operate within the four corners of the statutes applicable. The resultant is that Hon'ble Supreme Court may grant release on bail or suspension of sentence without getting itself satisfied with the requirements of Section 37 of the Act of 1985, if that is necessary for doing complete justice, such an authority, however, is not available to the High Court or the trial court, as the case may be. As already stated, the order passed in the case of Mansingh (supra) is a reflection of the authority exercised under Article 142 of the Constitution of India, thus, is not having a binding effect or in other words, an authority of precedent for the High Court or the other courts subordinate. The judgments given in the case of Dadu alias Tulsidas v. State of Maharashtra (supra) and Rattan Mallik (supra) are laying down law, hence, are having binding effect and those are required to be adhered in their true spirit.
12. Looking to the discussions made above, our conclusion is that the applications preferred by an accused of the offences punishable under Sections 19, 24 and 27A under the Act of 1985 and also for the offences involving commercial quantity of contraband for his release on bail or for suspension of sentence are required to be considered by the High Courts or the trial courts, as the case may be, by taking into (Downloaded on 25/01/2021 at 09:17:20 PM) (14 of 17) [SOSA-732/2020] consideration the provisions of Section 37 of the Act of 1985. The law discussed and settled in the case of Dadu alias Tulsidas v. State of Maharashtra (supra) and Rattan Mallik (supra), thus, is to be followed by the courts while dealing with the applications submitted by the accused of the offences referred in Section 37 of the Act of 1985 for grant of bail or for suspension of sentence."
27. When an Appellate Court is in seizen of an application for suspension of sentence with an assertion that the convict has served half of the sentence or more than five years, it can take into consideration his criminal antecedents (other than the offence, for which he has been convicted) and over-all behaviour while in incarceration, including the principles laid down by various Courts and the Punjab and Haryana High Court, as noticed above in para No.21. The Court will also be required to take into account the fact that when the conviction is under any special statute (NDPS Act etc.), the power to grant bail is circumscribed, as observed in para No.26 above.
28. Having examined the case of the present applicant before this Court, I find that as many as 19 cases were pending against him, but for offences under Sections 380 and 457 IPC. It is noteworthy that all these cases including the one in hands were registered in Police Stations Samdari; Balotra; Siwana of District Barmer, all of them have been registered within a span of two years (September 2014 till 19.06.2016) and it is intriguing to learn that he has been acquitted in all those cases (except the present one).
29. The fact that he has been acquitted in all the cases which were registered under Sections 380 and 457 IPC, obviously, cannot be taken to mean that he has been falsely implicated in the (Downloaded on 25/01/2021 at 09:17:20 PM) (15 of 17) [SOSA-732/2020] present case as well. But it definitely raises doubt about the level of investigation and evidence collected by the police authorities, more particularly when all the cases including the present case of rape was registered against him in different police stations, located within the radius of 30-40 km. in the District of Barmer.
30. The State has not pointed out any incident of reported mis- demenour or even misbehaviour, let alone commission of some offence by the applicant, while he was on parole or in jail. In the opinion of this Court, it is indicative of the change in the mind set of the applicant, who having remained for 5 years behind the bars, has been reformed.
31. In Dharampal's case (supra), as per the circular/guidelines, a convict having been awarded sentence of 10 years or more, has been held to be entitled for suspension of sentence on completion of five years or half of the sentence (as the case may be); this Court does not find any reason to deny such right when the punishment is less than 10 years, which in the present case is 7 years.
32. That apart, the applicant has remained behind the bars for a period of 5 years and 2 months, out of the total sentence of 7 years awarded to him. He has also remained in jail for 3 years after his conviction (27.09.2017), as such his case squarely falls within the parameters laid down by this Court in Tahir Khan's case (supra). The grant of bail in present case is also not otherwise barred as the applicant's conviction is not under the provisions of NDPS Act or other like provisions, where right of bail has been restricted, as has been laid by Division Bench of this Court in the (Downloaded on 25/01/2021 at 09:17:20 PM) (16 of 17) [SOSA-732/2020] case of Daulat Singh (supra) and Hon'ble the Supreme Court in the case of Union of India Vs. Rattan Mallik (supra).
33. In view of the aforesaid and considering the totality of the facts and circumstances and for the reasons noted hereinabove, this Court is persuaded to suspend the sentence of the applicant.
34. The present application for suspension of sentence thus, succeeds and it is ordered that the substantive sentence passed by the trial court vide judgment dated 27.09.2017 in Sessions Case No.31/2016 (63/2016)(CIS No.75/2016) against applicant Dinesh Kumar S/o Shri Achla Ram, shall remain suspended till final disposal of the aforesaid appeal, provided he executes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.50,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 01.03.2021 and whenever ordered to do so, till the disposal of the appeal on the conditions indicated below:-
(i) That he will appear before the trial Court in the month of January of every year till the appeal is decided.
(ii) That if the appellant changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court.
(iii) Similarly, if the sureties change their address, they will give in writing their changed address to the trial Court.
The learned trial Court shall keep the record of attendance of the accused-appellant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused- appellant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said (Downloaded on 25/01/2021 at 09:17:20 PM) (17 of 17) [SOSA-732/2020] accused-appellant does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.
(DINESH MEHTA),J /skm/-
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