Punjab-Haryana High Court
S.P.S. Rathore vs C.B.I on 4 June, 2010
Author: Ajay Tewari
Bench: Ajay Tewari
CRM No. 28820 of 2010 in 1
Criminal Revision No. 1558 of 2010
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM No. 28820 of 2010 in
Criminal Revision No. 1558 of 2010
Date of Decision: June 04, 2010
S.P.S. Rathore ...... Applicant-Petitioner
Versus
C.B.I. ...... Respondent
Coram: Hon'ble Mr. Justice Ajay Tewari
Present: Mrs.Abha Rathore, Advocate
for the applicant-petitioner.
Mr. Amit Dhawan, Advocate with
Mr. Pankaj Bhardwaj, Advocate
for complainant Mrs. Madhu Parkash.
Dr.Anmol Rattan Sidhu, Senior Standing Counsel for the CBI
with Mr. Ajay Kaushik, Advocate.
****
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Ajay Tewari, J.
By this order I shall decide an application under section 389/397 Cr.P.C. for suspension of sentence in a revision petition which stands admitted. The applicant was found guilty of offence punishable under Section 354 IPC. The trial court sentenced him to undergo rigorous imprisonment of six months and fine of Rs.1000/-. Against that he and the prosecution both filed appeals while the complainant filed revision petition. His appeal was dismissed and the appeal and the revision filed by the CRM No. 28820 of 2010 in 2 Criminal Revision No. 1558 of 2010 prosecution and the complainant were allowed. Consequently his sentence of imprisonment was enhanced to 1 ½ years.
Initiating arguments learned counsel for the petitioner states that as far as conviction is concerned the present would be a revision petition but as against the order of enhancement of sentence the present case would be in the nature of an appeal. In my opinion it would be more appropriate to decide this question at the time of decision of the main case.
The facts in a nutshell are that the petitioner was accused of molesting the complainant (who is since no more) on 12.8.1990 at about 12 O' clock in the office of the Haryana Lawn Tennis Association (HLTA) of which the petitioner was the President. The version of the prosecution is that the accused had gone to the house of the complainant on the previous day and had told her father that his proposal to send the complainant to Canada should be shelved and that he would arrange for her special coaching so that she could blossom and realise her full potential as a tennis player and asking that she should meet him in his office. On the next day the complainant went with her friend to meet the petitioner. The petitioner told the friend of the complainant to go and call the coach. When she went to all the coach he did not come and as she returned to inform the petitioner of this fact she saw that the petitioner had put his arm around the complainant and was holding her hand. Immediately on seeing her the petitioner released the complainant and fell back in confusion and, when she told him that the coach was not coming he asked her to go again to call him. At that point the complainant, distressed at the proposition of being left alone with the petitioner ran out of the office. When her friend followed her CRM No. 28820 of 2010 in 3 Criminal Revision No. 1558 of 2010 and asked her what had happened she burst into tears and told her about the petitioner having put his arm around the waist and catching her hand. Since the petitioner was a high ranking police officer (Deputy Inspector General) the girls, being overawed decided not to tell their parents, fearing reprisal. The next day was a holiday in the tennis courts . On 14.8.1990 the girls went to the tennis court purposely at an earlier time so as to avoid the petitioner. However, when the petitioner reached there the girls went away. At that time the complainant again became overcome with what had transpired two days ago and started weeping inconsolably. That was the stage at which the complainant decided to confide in her father. Since she could not bring herself to tell him what had happened her father sent her to the mother of her friend (since her own mother had died prior thereto), thinking that it might be easier for the complainant to tell a lady. Thereafter, perturbed by this shocking incident where a high police official had molested a young 15 ½ years old trainee even though he was (in a manner) in loco parentis, being the President of the Association, some people of the locality along with some other tennis players went to the office of the HLTA to meet and remonstrate with the petitioner, but despite being telephoned about their arrival by the Chowkidar the petitioner did not reach there. On 16.8.1990 a memorandum (Ex.P-2) was signed by the complainant and others which was addressed to the Chief Minister, the Home Minister and the Chief Secretary among others. The signatories went in a deputation but could not met the Chief Minister or the Home Minister. They, however, met the Chief Secretary who ordered an inquiry by the Director General of the Police. The DGP after inquiry gave a report where CRM No. 28820 of 2010 in 4 Criminal Revision No. 1558 of 2010 he held the petitioner guilty and recommended registration of a criminal case. The events subsequent thereto need not be mentioned at this stage. The version of the defence is that in fact the complainant had been suspended for indiscipline and that is why these false accusations were made against the petitioner.
Detailed arguments were addressed by the learned counsel. Learned counsel for the petitioner argued that firstly the admission of this petition indicated that this court had prima facie found that the petitioner had succeeded in making out a case and that in these circumstances the petitioner was entitled to suspension of sentence. More so since he was an old man of nearly 70 years of age who was infirm in health having undergone heart surgery. She further argued that the prosecution had placed on record site plan Ex.PW8/A and as per the position of the petitioner and the complainant shown therein it was impossible for the petitioner to have put his arm around the waist of the complainant and that this fact was not considered by the Courts below. It was also argued that both the Courts below had not at all considered the defence evidence which consisted of many persons who, though not present in the office, were admittedly present in the immediate vicinity and had testified that they had seen nothing like what had been alleged. As an aside she also argued that the admitted presence of so many people in the vicinity in a room with windows rendered it impossible that the petitioner would even risk attempting such an act. She further argued that two persons viz. the coach and the ball boy who could have independently established the presence of the eye witness were not examined. She also sought to draw benefit from the fact that the CRM No. 28820 of 2010 in 5 Criminal Revision No. 1558 of 2010 father of the complainant did not come forward in the initial stages, so much so that he did not even sign the memorandum. She also argued that the assertion that the girls went to the tennis courts again a day after was highly incredible since no girl would have gone to play if such an act had happened with her. As regards the reason for implicating the petitioner she said it was her stand that circumstances had brought together a set of people who were inimically disposed towards the petitioner which had provided them an opportunity to hatch this conspiracy.
In response learned counsel for the prosecution and the complainant argued that the present was a case where two courts had concurrently found the petitioner guilty. Further argued that the petitioner had only undergone 8 days imprisonment and keeping in mind the nature of the offence he did not deserve the concession of suspension of sentence. They argued that the entire evidence has been considered and the conclusion drawn by the Courts could not be said to be perverse. They argued that the direct testimony of the eye witness (who was subjected to a cross- examination running into 152 pages) clearly established the guilt of the petitioner. They debunked the conspiracy theory arguing that firstly no enmity with the petitioner was proved and secondly it was inconceivable that any person would use a young girl to make such self debasing allegations to settle scores with the petitioner.
Before proceeding further to discuss the issue it would be profitable to consider the various parameters laid down for exercise of jurisdiction under Section 389 Cr.P.C. In Kishori Lal V. Rupa and others reported as 2004(7) Supreme Court Cases 638 - a case dealing with CRM No. 28820 of 2010 in 6 Criminal Revision No. 1558 of 2010 the interplay of Section 389 Cr.P.C. with appellate powers - the Hon'ble Supreme Court held as follows:-
"4. Section 389 of the code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has t be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.
5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused- respondents were on bail.
6. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses CRM No. 28820 of 2010 in 7 Criminal Revision No. 1558 of 2010 significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct princip0le in view."
In Angana and Anr. v. State of Rajasthan reported as AIR 2009 Supreme Court 1669 the Hon'ble Supreme Court held as follows:-
"11) In the instant case, an application under Section 389 of Cr.P.C. is filed for suspension of sentence by a convict in a pending appeal. The accused was on bail when the matter was pending before the Sessions court. It is not the case of the prosecution that the accused who is released on bail would abscond during the pendency of the appeal. When an appeal is preferred against conviction in the High Court, the Court has ample power and discretion to suspend the sentence, but that discretion has to be exercised judiciously depending on the facts and circumstances of each case. While considering the suspension of sentence, each case is to be considered on the basis of nature of the offence, manner in which occurrence had taken place, whether in any manner bail granted earlier had been misused. In fact, there is no strait jacket formula which CRM No. 28820 of 2010 in 8 Criminal Revision No. 1558 of 2010 can be applied in exercising the discretion. The facts and circumstances of each case will govern the exercise of judicial discretion while considering the application filed by the convict under Section 389 of Criminal Procedure Code.
12) This Court in the case of Takhat Singh and Others vs. State of M.P., (2001) 10 SCC 463, has held that, "the appellants are already in jail for over three years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore."
13) Reference can made to the decision of this court in the case of Kashmira Singh vs. State of Punjab, (1997) 4 SCC 291, where this Court has observed that:
"Now, the practice in this Court as also in many of the High Court has been not to release on bail a person who has been sentenced to life imprisonment for an offence under Section 302 of the Indian Penal Code. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice. 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 CRM No. 28820 of 2010 in 9 Criminal Revision No. 1558 of 2010 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."
The Court going by the said consideration held that:- CRM No. 28820 of 2010 in 10
Criminal Revision No. 1558 of 2010 "that so long as the Supreme 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 where special leave has been granted to the accused to appeal against his conviction and sentence. The other consideration, however, is equally important and relevant. When a person is convicted by an appellate court, he cannot be said to be an innocent person until the final decision is recorded by the superior court in his favour. "
14) In the case of Babu Singh vs. State of U.P., 1978 (1) SCC 579, it was observed, that, the significance and sweep of Article 21 make the deprivation of liberty a matter of grave concern and permissible only when the law authorising it is reasonable, even-handed and geared to the goals of community good and State necessity spelt out in Article 19. Indeed, the considerations I have set out as criteria are germane to the constitutional proposition I have deduced. Reasonableness postulates intelligent care and predicates that deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice--to the individual involved and society affected.
15) In Emperor v. H.L. Hutchinson, AIR 1931 All 356, it was observed that:-
"As to the object of keeping an accused person in CRM No. 28820 of 2010 in 11 Criminal Revision No. 1558 of 2010 detention during the trial, it has been stated that the object is not punishment, that to keep an accused person under arrest with the object of punishing him on the assumption that he is guilty even if eventually he is acquitted is improper. This is most manifest. The only legitimate purposes to be served by keeping person under trial in detention are to prevent repetition of the offence with which he is charged where there is apparently danger of such repetition and to secure his attendance at the trial. The first of those purposes clearly to some extent involves an assumption of the accused' guilt, but the very trial itself is based on a prima facie assumption of the accused's guilt and it is impossible to hold that in some circumstances it is not a proper ground to be considered. The main purpose however is manifestly to secure the attendance of the accused."
16) In the case of Bhagwan Rama Shinde Gosai v. State of Gujarat.(1999) 4 SCC 421, this Court has stated that when a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. The Court has observed :
"3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court CRM No. 28820 of 2010 in 12 Criminal Revision No. 1558 of 2010 liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence. So as to make the appeal right, meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted."
In Siddharth Jain v. State (NCT) of delhi through Commissioner of Police reported as 1009(2) RCR(Criminal) 764 the Hon'ble Supreme Court held as follows:-
"3. It is a settled law that where the sentence is less or up to three years, the Courts should ordinarily grant bail to the accused because in view of the long pendency of the cases in the High Courts, a matter will come on Board after a long time and by that time the accused might have completed his sentence."CRM No. 28820 of 2010 in 13
Criminal Revision No. 1558 of 2010 In Dalip Singh alias Deepa v. State of Punjab reported as 2010(2) RCR(Criminal) 566, a Full Bench of this Court laid down the following principles:-
"42. Accordingly, the sum and substance of our discussion are:-
(a) long pendency of the trial or an appeal after conviction would be a ground for consideration for grant of bail or suspension of sentence of an accused or a convict as the case may be in the spirit of Article 21 of the Constitution of India;
(b) In the case of delay in conclusion of the trial the right is of consideration for release on bail and not an automatic right of grant of bail. In the consideration process for the grant of bail on the ground of delay in concluding the trial it shall have to be seen who was responsible for the delay. In case it is the accused who has delayed the trial no relief can be granted. In case of delay by the prosecution, which is oppressive or unwarranted, besides, affecting the right of an accused under-trial in terms of Article 21, remedial orders including grant of bail or fixing a time frame for the conclusion of the trial are to be passed.
(c) In the case of delay in the disposal of the appeal after an order of conviction, the rule of laying down a condition of undergoing three years or two years imprisonment post-
conviction in the case of females for a life convict out of a period of five years or four years in the case of females is not absolute. The convict appellant may show by producing relevant materials including interim orders of the trial Court that the delay in the conclusion of the trial is not attributable to him.
(d) While considering the case for release from custody on bail during trial or suspension of sentence pending an appeal the Court is also to consider:-
(i)the nature of the offence;
(ii)the manner in which the offence has occurred;
(iii)the role attributed to the accused or the appellant as the case may be seeking bail or suspension of his sentence;
(iv)the nature of gravity or heinousness of the crime or cruel mode of its execution;
(v)whether a bail earlier granted had been misused and other CRM No. 28820 of 2010 in 14 Criminal Revision No. 1558 of 2010 criminal cases, if any, pending against the accused or the convict or other cases where he has been convicted;
(vi)the propensity and potentiality of the accused or the convict indulging in criminal activities while on bail;
(vii) the likelihood of an accused in case of an under-trial or a convict prisoner after his conviction to abscond or being a proclaimed offender, besides, in case of an under-trial prisoner the likelihood of his interfering in the trial of the case by influencing the witnesses or tampering with the evidence.
(viii)conduct of an accused or a convict while in jail and in the case of a convict whether he has misused the concession of parole or furlough;
(ix)whether the concession of bail, parole or furlough earlier granted has been misused........................................................"
Out of the various parameters mentioned above what can be culled out for the purpose of the present case is as follows:-
i) Even though a detailed analysis of the merits is not necessary yet a broad brush overview of the facts would be required for the purposes of deciding an application under Section 389/397 Cr.P.C.
ii) Normally where sentence is up to three years bail should be granted liberally since long pendency of the appeal/revision may result in the convict having completed his sentence;
iii)In a case like the present where the accused has been found guilty of a particularly odious offence this rule can be departed from;
iv)However, in order to safeguard the right of the accused hearing on the main case must be expedited. CRM No. 28820 of 2010 in 15
Criminal Revision No. 1558 of 2010 Keeping in mind the above noted parameters, in my opinion it would be in the interest of justice if the Registry is directed to fix the main petition for hearing on 29.06.2010 before an appropriate Bench at serial number 301. The record be summoned by special messenger. The application for suspension of sentence is adjourned to 29.06.2010 so that in case the main petition is not heard due to any circumstances beyond the control of the applicant, the present prayer can be pressed.
A copy of this order be supplied to learned counsel for the parties under the signatures of the Court Secretary.
(AJAY TEWARI) JUDGE June 04 , 2010 sunita