Himachal Pradesh High Court
Sagar Verma @ Changu vs . State Of H.P. on 1 August, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
Sagar Verma @ Changu Vs. State of H.P. Cr. Appeal No. 343/2024 01.08.2024 Present: Mr. Manoj Pathak and Mr. Harsh, .
Advocates, for the appellant.
Mr. I.N. Mehta, Senior Additional Advocate General with Ms. Sharmila Patial, Mr. Navlesh Verma, Additional Advocates General and Mr. Raj Negi, Deputy Advocate General, for the respondent- State.
Cr. MP No. 2824/2024This order shall dispose of an application filed by the applicant/appellant under Section 389 of the Code of Criminal Procedure seeking suspension of sentence awarded by learned Special Judge, Bilaspur, District Bilaspur, H.P., vide judgment of conviction/order of sentence dated 24.01.2024, in Session Trial No. 1/7 of 2019, for the commission of offence punishable under Section 376 of the Indian Penal Code (for short "IPC") and Section 4 of the Protection of Children from Sexual Offences Act (for short "POCSO Act") and was sentenced to undergo rigorous imprisonment for a period of ten years under Section 4 of the POCSO Act.
2. The learned counsel for the applicant/appellant contended that the applicant is in custody since 21.10.2018 and till date he had undergone five years, three months and three days sentence, as against the total sentence of ten years. He further contended that the appeal is likely to take ::: Downloaded on - 01/08/2024 20:34:18 :::CIS ...2...
considerable time for its disposal, as such, the instant .
application may be allowed and the applicant, who had already undergone more than half of the sentence, be released on bail during the pendency of the instant appeal.
3. On the other hand, learned Additional Advocate General contended that the applicant/appellant is not entitled to be released on bail during the pendency of the present appeal, as he has been convicted in a serious offence.
4. We have heard the learned counsel for the applicant/appellant as well as learned Additional Advocate General and have also gone through the material available on record.
5. At this stage, it would be relevant to reproduce Section 436-A of the Code of Criminal Procedure (Cr.P.C.), 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:::: Downloaded on - 01/08/2024 20:34:18 :::CIS
...3...
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."
6. In Satender Kumar Antil Versus Central Bureau of Investigation & another, (2022) 10 Supreme Court Cases 51, after taking note of the provisions of Section 436A, Cr.P.C., the Hon'ble Apex Court held as under:-
"63. Section 436A of the Code has been inserted by Act 25 of 2005. This provision has got a laudable object behind it, particularly from the point of view of granting bail. This provision draws the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the accused during the investigation, inquiry and trial. We have already explained that the word 'trial' will have to be given an expanded meaning particularly when an appeal or admission is pending. Thus, in a case where an appeal is pending for a longer time, to bring it under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision.
64.Under this provision, when a person has undergone detention for a period extending to one- half of the maximum period of imprisonment specified for that offense, he shall be released by the court on his personal bond with or without sureties. The word 'shall' clearly denotes the ::: Downloaded on - 01/08/2024 20:34:18 :::CIS ...4...
mandatory compliance of this provision. We do feel that there is not even a need for a bail .
application in a case of this nature particularly when the reasons for delay are not attributable against the accused. We are also conscious of the fact that while taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. Once again, we have to reiterate that 'bail is the rule and jail is an exception' coupled with the principle governing the r presumption of innocence. We have no doubt in our mind that this provision is a substantive one, facilitating liberty, being the core intendment of Article 21. The only caveat as furnished under the Explanation being the delay in the proceeding caused on account of the accused to be excluded....."
7. In the instant case, the appeal is of the year 2024 and the same is not likely to be decided in near future and there is also nothing on record to suggest that the delay in deciding the appeal is attributable to the applicant/appellant. Therefore, in view of the facts and circumstances of the case, since the applicant has already undergone more than half of the maximum sentence imposed upon him by the learned trial Court and keeping in view the aforesaid judgment of the Hon'ble Supreme Court, the substantive sentence imposed upon the applicant by the trial Court, vide judgment of conviction/order of sentence dated 24.01.2024, passed by learned Special Judge, Bilaspur, ::: Downloaded on - 01/08/2024 20:34:18 :::CIS ...5...
District Bilaspur, H.P., shall remain suspended, till final .
disposal of the appeal, however, subject to the applicant's furnishing personal bonds in the sum of Rs.
50,000/- with two local sureties of District Bilaspur in the like amount to the satisfaction of learned trial Court. On furnishing the requisite bail bonds, he be released forthwith, however, with the undertaking to appear before this Court as and when directed and in the event of the dismissal of the appeal, the applicant/appellant will surrender before the Court.
8. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the same has been given only for the purpose of deciding the present application. The application stands disposed of.
( Tarlok Singh Chauhan ) Judge ( Sushil Kukreja ) Judge 1st August, 2024 (raman) ::: Downloaded on - 01/08/2024 20:34:18 :::CIS