Rajasthan High Court - Jaipur
Mohan Lal vs State on 21 December, 2011
Bench: Prem Shanker Asopa, Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. D.B. Cr. Misc. 6th Suspension of Sentence Application No.155/2010 In D.B. Criminal Appeal No.1298/2004 Mohammed Mohsin Khan @ Bhooria Vs. The State of Rajasthan through Public Prosecutor 2. D.B. Cr. Misc. 5th Suspension of Sentence Application No.607/2010 In D.B. Criminal Appeal No.183/2005 Nasir Khan Vs. The State of Rajasthan through Public Prosecutor 3. D.B. Cr. Misc. 3rd Suspension of Sentence Application No.1171/2009 In D.B. Criminal Appeal No.663/2006 Mohan Lal Vs. The State of Rajasthan through Public Prosecutor 4. D.B. Cr. Misc. 2nd Suspension of Sentence Application No.881/2009 In D.B. Criminal Appeal No.803/2006 Ramchander and Another Vs. The State of Rajasthan through Public Prosecutor 5. D.B. Cr. Misc. 2nd Suspension of Sentence Application No.1134/2009 In D.B. Criminal Appeal No.504/2007 Suresh Kumar Vs. The State of Rajasthan through Public Prosecutor 6. D.B. Cr. Misc. 3rd Suspension of Sentence Application No.222/2011 In D.B. Criminal Appeal No.323/2007 Ashwani Kumar Vs. The State of Rajasthan through Public Prosecutor 7. D.B. Cr. Misc. 2nd Suspension of Sentence Application No.566/2009 In D.B. Criminal Appeal No.1380/2007 Netrapal Vs. The State of Rajasthan through Public Prosecutor Date of Order ::: 21.12.2011 Present Hon'ble Mr. Justice Prem Shanker Asopa Hon'ble Mr. Justice Mohammad Rafiq Shri Biri Singh, Senior Advocate with Shri Harendra Singh, Shri N.C. Choudhary, Shri S.S. Hasan, Shri S.S. Sunda, Shri Jagdish Singh Chauhan, Shri K.N. Sharma, Shri Narendra Saini, Shri Suresh Sahni with Shri R.M. Sharma, counsel for appellants/petitioners Shri Amit Punia, Public Prosecutor for the State #### //Reportable// By the Court:(Per Justice Mohammad Rafiq)
All these matters are listed for consideration of applications for suspension of sentence filed by appellants/applicants under Section 389 Cr.P.C. in appeals against their conviction under Section 302 IPC, in which they have been sentenced to undergo life imprisonment. First application for suspension of sentence in all these matters was dismissed on merits. Out of the matters listed today, in Criminal Appeal No.1298/2004, it is 6th application, in Criminal Appeal No.183/2005, it is 5th application, in Criminal Appeal No.663/2006, it is 3rd application, in Criminal Appeal No.803/2006, it is 2nd application, in Criminal Appeal No.504/2007, it is 2nd application, in Criminal Appeal No.323/2007, it is 3rd application and in Criminal Appeal No.1380/2007, it is 2nd application.
Apart from addressing the court on merits of individual cases, learned counsel for the appellants in all these appeals have heavily relied on division bench judgment of this court in Tahir Khan @ Shakeel and others Vs. State of Rajasthan 2005 (4) WLC (Raj.) 637, and argued that as per ratio of aforesaid judgment, sentence of appellants/applicants in all these appeals is liable to be suspended pending disposal of appeals, considering the fact that they have already served the sentence for five or more years, which includes three years after their conviction and none of them have been convicted for heinous offence. Learned counsel argued that this court in Tahir Khan, supra, relied on division bench judgment of Punjab and Haryana High Court in Dharam Pal Vs. State of Haryana (1994) 4 RCR (Criminal ) 600, wherein a similar view was taken. Aforesaid judgment of Punjab and Haryana High Court in Dharam Pal, has been upheld by the Supreme Court in Surinder Singh @ Shingara Singh Vs. State of Punjab (2005) 7 SCC 387. It was argued that the full bench of this Court in Damo Vs. Sate of Rajasthan 1985 RLW 374, has not laid down any law of general proposition that if appeals are not decided within the time of five years or more, that should not be a ground for suspending the sentence. Reference to a larger bench in that case was made in view of division bench judgment of this court in Ramju Vs. The State of Rajasthan 1985 RLW 152 primarily on the question whether priority can be accorded in the matter of hearing of appeal. Learned counsel also cited decision of the Supreme Court in Kashmira Singh Vs. The State of Punjab (1977) 4 SCC 291, and argued that in fact the division bench judgment of this court in Tahir Khan, supra, is based on Kashmira Singh, supra, in which the Supreme Court held that so long as the Court is not in a position to hear the appeal of an accused within a reasonable period of time, it should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence. The very fact that the Supreme Court has granted to the appellant special leave to appeal against his conviction, shows that, in the opinion of the Supreme Court, he has prima facie good case to consider and in the circumstances it would be highly unjust to detain him in jail any longer till hearing of the appeal. On the said analogy, argument of learned counsel for appellants in these matters is that once the appeals filed by appellants have been admitted by this court, which in any case is statutorily provided remedy to them, that would mean that they have prima facie case and if the court has not been able to hear and decide the appeal for more than five years now, it would at-least make out a case for suspension of their sentence.
Learned counsel for appellants, referring to the cause list of hearing of the division bench of this court, argued that presently the division bench of this court is hearing the appeals where the convicts have remained behind the bar for more than nine years and in the present set of seven appeals the appellants (applicants in applications for suspension of sentence) have remained behind the bar for about (1) 6 years 11 months, (2) 8 years 5 months, (3) 5 years 11 months, (4) 6 years 4 months, (5) 5 years 11 months, (6) 5 years 11 months and (7) 5 years 2 months, respectively, and their appeals may yet take three to five years more time for decision. Learned counsel relied on Section 436A of the Code of Criminal Procedure inserted by Amendment Act No.25 of 2005 with effect from 23.06.2006, and argued that the Parliament in that provision has provided that where a prisoner during the period of investigations, inquiry or trial, has undergone detention up to one-half of the maximum period of imprisonment specified for that offence under the law, he shall be released by the court on his personal bond with or without sureties. Same principle of law should apply for suspension of sentence of convicts pending their appeal, wherein they have served more than half of the maximum period of imprisonment they are required to serve in jail. This provision, inserted by Amendment Act No.25 of 2005, postulates legislative mandate that if the trial of a criminal case is not completed and an accused has served more than one-half of the maximum period of imprisonment specified for offence under that law, he can no longer be detained in jail pending trial. Conviction does not attain finality unless its correctness is tested in at-least one statutory remedy of appeal provided by Section 374 of the Cr.P.C. Appeal is continuation of original trial proceedings, the same principle should therefore extend to the appeal as well became right to speedy trial also includes the right to speedy disposal of appeal against conviction. It would therefore be highly unjust and unfair to detain them in jail for such a long period merely because there appeals have not been heard and decided. It is therefore prayed that the applications for suspension of their sentence may be allowed and they be released on bail.
Per contra, learned Public Prosecutor opposed the prayer for suspension of sentence solely for the reason of delay in disposal of appeals. It was argued that sentence of appellants cannot be suspended merely on the basis of the supposed extension of right of speedy trial to appeals against conviction because trial in their cases is already over. They are detained in jail as convicts and not as undertrial prisoners. The presumption of innocence in their cases has come to an end the moment they were convicted. Learned Public Prosecutor further argued that a larger bench of this court in Damo, supra, rejected similar argument to the effect that if the appeals of convicts are not decided for 5 to 6 years, their sentence be suspended and they should be released on bail. This issue thus stood concluded by the larger bench of this court. Their sentence can not be therefore suspended only because appeals are not decided in 5-6 years time. Learned Public Prosecutor also relied on the judgment of the Supreme Court in Sidhartha Vashisht @ Manu Sharma Vs. State (NCT of Delhi) (2008) 5 SCC 230, to argue that mere admission of appeal by itself is not a ground for suspension of sentence because a convicted person cannot be considered as an innocent person, and it is also not sufficinet reason to do so on the groud that the appellant was on bail during trial and did not misuse his liberty. Real consideration is whether reasons exist to suspend the sentence and grnat of bail. Learned Public Prosecutor also relied on the judgment of the Supreme Court in the State of Punjab Vs. Deepak Mattu (2007) 11 SCC 319 and argued that the Supreme Court in that case has held that the grounds of possible delay in disposal of appeal and that there are arguable points by itself may not be sufficient to grant suspension of sentnece. Learned Public Prosecutor argued that in many subsequent judgments after Kashmira Singh, supra, the Supreme Court held that delay in disposal of appeals by itself may not be a reason to justify suspension of sentence.
Learned Public Prosecutor argued that Section 436A of the Cr.P.C. is applicable only to the matters pending trial and it cannot be relied on even for the sake of analogy in present matter where the question is of suspension of sentnece pending appeal against conviction. While during trial the presumption of innocence is avaialble to the accused but after conviction that presumption goes.
We have given our anxious consideration to rival submissions and perused the material on record.
It is, no doubt, true that appellants are detained in jail for last more than five years and awaiting disposal of their appeals pending before this court, but that by itself may not be a ground for suspension of their sentence, particularly because in all these matters, their first application for suspension of sentence has been dismissed by this court on merits. Question that arises for consideration is whether merely because appeals filed by such convicts are not decided for 5 or more years by this court, this by itself should be a reason to suspend their sentence? Unlike in the cases of undertrials, cases of convicts stand on different footings where the presumption of innocence comes to an end the moment they are convicted and sentenced to imprisonment, which in these case is imprisonment for life, and thus they suffer an order of conviction.
The division bench of this court in Tahir Khan, supra, relied on division bench judgment of Punjab and Haryana High Court in Dharam Pal, supra, which judgment was called in question before the Supreme Court in Surinder Singh, supra. Argument that was raised before the Supreme Court in that case was that the High Court ought to have suspended the sentence of the appellants in view of Dharam Pal, supra. The Supreme Court in Para 8 of the aforesaid judgment of Surinder Singh held as under:-
"8. It is no doubt true that this Court has repeatedly emphasized the fact that speedy trial is a fundamental right implicit in the broad sweep and content of Article 21 of the Constitution of India. The aforesaid Article confers a fundamental right on every person not to be deprived of his life or liberty except in accordance with the procedure prescribed by law. If a person is deprived of his liberty under a procedure which is not reasonable, fair, or just, such deprivation would be violative of his fundamental right under Article 21 of the Constitution of India. It has also been emphasized by this Court that the procedure so prescribed must ensure a speedy trial for determination of the guilt of such person. It is conceded that some amount of deprivation of personal liberty cannot be avoided, but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. These are observations made in several decisions of this Court dealing with the subject of speedy trial. In this case, we are concerned with the case where a person has been found guilty of an offence punishable under Section 302 IPC and who has been sentenced to imprisonment for life. The Code of Criminal Procedure affords a right of appeal to such a convict. The difficulty arises when the appeal preferred by such a convict cannot be disposed of within a reasonable time. In Kashmira Singh Vs. State of Punjab : (1977) 4 SCC 291, this Court dealt with such a case. It is observed:-
"The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified? Would it be just at all for the Court to tell a person: 'We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?' What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this 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 in cases where special leave has been granted to the accused to appeal against his conviction and sentence".
As regards the question whether or not the presumption of innocence of accused comes to an end with the recording of his conviction and whether the appeal is continuation of proceedings of trial because the conviction has not yet attained the finality, we may refer to observations made by the Supreme Court in Para 5 of the judgment in Smt. Akhtari Bi Vs. State of M.P. - (2001) 4 SCC 355, wherein their Lordships held that 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. We reproduce hereunder para 5 of the judgment containing the said observations:-
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 purposes.
A judgment of Punjab & Haryana High Court in Dharam Pal, supra, came up for consideration before the Supreme Court in Surinder Singh, supra, wherein it was held by the Supreme Court that the Punjab and Haryana High Court only laid down guidelines and not invariable rule to be observed with mathematical precession because the Judges deciding the Dharam Pal's case observed in the very first paragraph of the judgment that they were making an attempt to frame certain guidelines for the grant of bail. The High Court of Punjab and Haryana in Dharam Pal, supra, laid down guidelines, which ought to be kept in mind by the courts dealing with applications for grant of bail in pending appeals, but, it does not lay down any hard-and-fast rule of universal application, observed the Supreme Court. Since the judgment of this court in Tahir Khan, supra, followed the principles of law enunciated by the Punjab and Haryana High Court in Dharam Pal's case and those principles have been clarified by the Supreme Court in Surinder Singh, supra, we are unable to countenance the argument that in all those cases, where the convicts, whose appeals are pending hearing in this court and appellants therein have served the sentence of five or more years, their sentence should be suspended on that ground alone.
In fact, the Supreme Court had the occasion to revisit Kashmira Singh, supra, in Sidhartha Vashisht v. State (NCT of Delhi), (2008) 5 SCC 230. That was a case in which trial court acquitted the accused for the offence but the High Court convicted him under Section 302 IPC and sentenced him to undergo life imprisonment. Aggrieved thereby, he filed an appeal before the Supreme Court, which was admitted, and was fixed for hearing. The judgment of the Supreme Court in Kashmira Singh, supra, was cited to argue that if the Court was not in a position to hear the appeal of the accused within reasonable time, it should ordinarily, unless there are cogent grounds to act otherwise, release the accused where special leave to appeal is granted. Repelling that contention, the Supreme Court held that where a person is convicted, he cannot be said to be an innocent person, unless the final decision is recorded by the superior court in his favour. Mere fact that during period of trial the accused was on bail and did not misuse the liberty, does not provide him any ground for suspension of sentence but it has to consider if reasons existed to suspend the sentence and grant bail. In State Of Punjab vs Deepak Mattu (2007) 11 SCC 319, in which the judgment of Punjab and Haryana High Court suspending conviction of accused on the ground that decision on his appeal will take a long time was questioned, the Supreme Court held that possible delay in disposal of appeal by itself may not be sufficient to grant suspension of sentence.
In view of aforesaid discussion, we have our own doubts about the correctness of the Division Bench judgment of this court in Tahir Khan @ Shakeel, supra. For the sake of judicial propriety, however, we deem it appropriate to refer this question to a larger bench to be constituted by Hon'ble the Chief Justice of at least three Judges, which may also consider correctness of the guidelines laid down by the Division Bench of this court in Tahir Khan, supra, in the light of various Supreme Court judgments noted above.
Following question is therefore referred to the larger bench:-
Whether sentence of life imprisonment of a convict can be suspended solely on the ground of his having served five years or one-half of the maximum sentence, inclusive of remission, which would otherwise entitle him to release from jail, and whether the judgment of a Division Bench of this Court in Tahir Khan @ Shakeel and Others Vs. State of Rajasthan 2005 (4) WLC (Raj.) 637, holding so, has been correctly decided?
Let these matters be laid before Hon'ble the Chief Justice for appropriate orders.
(Mohammad Rafiq) J. (Prem Shanker Asopa) J. //Jaiman//
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-J