Madhya Pradesh High Court
Ayush vs The State Of Madhya Pradesh on 7 January, 2022
Author: Virender Singh
Bench: Virender Singh
1
CRA-799-2016
THE HIGH COURT OF MADHYA PRADESH
CRA No.799 of 2016
(Ayush vs the State of Madhya Pradesh)
Jabalpur, Dated 07-01-2022.
Per Virender Singh, J :
Shri Rajesh Kumar Yadav, counsel for applicant/appellant. Ms. Shikha Singh Baghel, Panel Lawyer for the State. Heard on I.A. No.12105/2021.
This is the fourth application under Section 389 of CrPC for suspension of sentence to the appellant who stands convicted under Sections 8/20(b)(ii)(B) and 8/20(b)(ii)(C) r/w 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 and has been awarded imprisonment for 5 years' R.I. and 12 years' R.I. and fine of Rs.50,000/- and Rs.1,25,000/- respectively 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 persons present there successfully fled, while one i.e. applicant Ayush was caught. He was found in possession of 10 kg Ganja. On his disclosure, the police searched the house of his associates and recovered another 44 kg Ganja. Hence, total 54 kg illegal Ganja was recovered.
3. The first application (I.A. No.7947/2017) of the applicant has been dismissed vide order dated 20.06.2017 while the second and third applications (I.A. No.19524/2017 and I.A. No.939/2020) have been withdrawn vide orders dated 06.04.2018 and 26.06.2020.
4. This time the suspension has been pleaded on the sole ground of period of custody. According to the ld. counsel, out of 2 CRA-799-2016 the 12 years' sentence awarded, the applicant has suffered about 6 years and 06 months incarceration. Further, seizure witnesses Gulam Rasool (PW1) and Shahjad Shah (PW2) did not support the prosecution version.
5. With regard 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 time on the issue, the Full Bench of this Court in Dashrath vs State of M.P. (Cr.A. 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, is required to consider the nature of accusation made against the accused, gravity of the offence, the manner in which the crime is alleged to have been committed and the desirability of the accused being released on bail after conviction.
6. 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 by a convicted person, the Appellate Court may, for 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 3 CRA-799-2016 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,--
(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for 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 imprisonment shall, so long as he is so released on bail, 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 so sentenced.
(Emphasis supplied)
7. A simple 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 4 CRA-799-2016 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 introduced to curb the menace etc. and peculiar facts and circumstances of any particular case.
8. 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.
9. It is the duty of the Courts to consider both sides of the coin. Much hue and cry 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 5 CRA-799-2016 by the State and do not have much say in the system. It is the Courts who should take the responsibility to maintain 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.
10. 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.
11. In the present case, the suspension is sought for only on the ground that the applicant has completed more than six years incarceration that too in a case of recovery of huge commercial quantity of contraband and this Court has already dismissed his applications on earlier occasions and nothing new has been brought except period of custody. Therefore, in the considered opinion of this Court, no case for granting suspension is made out.
12. Though, there is no doubt that the subsequent bail /suspension application is maintainable, there must be some material change in the facts and circumstances or the law. The parameters to be observed by High Court while dealing with the successive application for suspension of sentence and grant of bail have been considered by the Apex Court in Kalyan Chandra Sarkar vs Rajesh Ranjan (2005) 2 SCC 42 wherein it is held :
"19. The principles of res judicata and such analogous 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 6 CRA-799-2016 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.
20. The decisions given by a superior forum, 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 room for filing 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 the earlier view being interfered with or where the earlier finding has become obsolete. This is 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."
13. Therefore, in view of the aforesaid, it is not open to the aggrieved 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 7 CRA-799-2016 findings of the Court recorded in the earlier order and obviously this is not permissible.
14. In the instant case, though the witnesses of seizure have been declared hostile but as evident from the analysis of their evidence in paragraph 18 and 19 of the judgment, the trial Court has rightly discarded their statements.
15. Taking any view of the matter, we find that it is not a fit case for suspension of the sentence of the accused-appellant, therefore, I.A. No.12105/2021 stands dismissed.
(Smt. Anjuli Palo) (Virender Singh)
Judge Judge
vinod
Digitally signed by
VINOD VISHWAKARMA
Date: 2022.01.28
11:01:29 +05'30'