Himachal Pradesh High Court
Rakesh Rana vs State Of H.P on 29 February, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No.1262 of 2023 Reserved on: 09.02.2024 Date of Decision: 29.02.2024 Rakesh Rana ... Petitioner Versus State of H.P ....Respondent Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner : Ms. Madhurika Sekhon, Advocate. For the Respondent : Mr. Pushpender Jaswal, Additional Advocate General.
Rakesh Kainthla, Judge The petitioner is aggrieved by the rejection of his application for seeking suspension of the sentence awarded by the learned Trial Court. The learned Trial Court sentenced the petitioner as under: -
(i) Rigorous imprisonment for two years and fine of Rs.
3000/- under Section 420 IPC and in default of payment of fine to further undergo simple imprisonment for three months.
(ii) Rigorous imprisonment for one year and six months for an offence punishable under Section 467 of IPC and a fine of Rs. 2,000/- and in default of payment of fine to further undergo simple imprisonment for two months.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2(iii) Rigorous imprisonment for two years and a fine of Rs.
3,000/- for an offence punishable under Section 468 of IPC and in default of payment of fine to further undergo simple imprisonment for three months.
(iv) Rigorous imprisonment for six months and fine of Rs.
1,000/- for an offence punishable under Section 170 of IPC and in default of payment of fine to further undergo simple imprisonment for fifteen days.
2. Learned Additional Sessions Judge/learned First Appellate Court held that the petitioner was in judicial custody from 2021 till the date of the decision. He is facing cases in Punjab and Haryana, which shows that he is a habitual offender;
therefore, his application was dismissed.
3. Being aggrieved from the order passed by the learned Trial Court, the petitioner has filed the present petition asserting that the petitioner has remained in custody for three years, one month and ten days and the punishment awarded to him is five years and six months. He has undergone more than half of the sentence awarded to him. The petitioner has been enlarged on bail in the cases registered in Punjab and Haryana. The petitioner is the sole bread earner of the family and his family members are dependent upon him. Hence, the petition.
34. The petition is opposed by filing a reply denying the contents of the petition. It was asserted that in case, the petitioner is released on bail, there is every likelihood that he would abscond to avoid imprisonment. The petitioner is not entitled to bail during the hearing of the appeal; therefore, it was prayed that the present petition be dismissed.
5. I have heard Ms Madhurika Sekhon, learned counsel for the petitioner and Mr Pushpender Jaswal, learned Additional Advocate General, for the respondent/State.
6. Ms. Madhurika Sekhon, learned counsel for the petitioner submitted that the petitioner has already undergone more than half of the imprisonment awarded to him. His appeal is not being heard expeditiously and the denial of suspension of sentence in these circumstances was unjustified; hence, she prayed that the present petition be allowed and the sentence awarded by the learned Trial Court be suspended during the pendency of the appeal.
7. Mr Pushpender Jaswal, learned Additional Advocate General, for the respondent/State supported the order passed by the learned First Appellate Court and submitted that the learned First Appellate Court had rightly declined to suspend the sentence 4 imposed upon the petitioner. Hence, he prayed that the present petition be dismissed.
8. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
9. As per the certificate of period of detention (Annexure P-4), the petitioner has undergone three years one month and ten days imprisonment and he is to undergo two years four months and twenty days imprisonment as on 16.11.2023. It is apparent from this certificate that the petitioner has already undergone more than half of the sentence awarded by the learned Trial Court.
Further, the order passed by the learned First Appellate Court shows that the learned Trial Court had ordered the sentences to run consecutively instead of concurrently. It was laid down by Hon'ble Supreme Court in Satender Kumar Antil v. CBI, (2022) 10 SCC 51: (2023) 1 SCC (Cri) 1: 2022 SCC OnLine SC 825 that where the person had undergone more than half of the sentence and his appeal is not being heard, he is entitled to be released on bail. It was observed:
"56. A suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication. Though delay in taking up the main appeal would certainly be a factor and the benefit available under Section 436-A would also be considered, the courts will have to see the relevant factors including the conviction rendered by the trial court. When it is so apparent that the appeals are not 5 likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the appellant.
57. Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit conferred under Section 436-A of the Code among other factors ought to be considered for a favourable release on bail.
Precedents
58. Atul Tripathi v. State of U.P. [Atul Tripathi v. State of U.P., (2014) 9 SCC 177: (2014) 6 SCC (Cri) 19]: (SCC pp. 183-84, paras 13-14) "13. It may be seen that there is a marked difference between the procedure for consideration of bail under Section 439, which is the pre-conviction stage and Section 389CrPC, which is the post-conviction stage.
In the case of Section 439, the Code provides that only notice to the Public Prosecutor unless impractical be given before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or where the punishment for the offence is imprisonment for life; whereas in the case of post- conviction bail under Section 389CrPC, where the conviction in respect of a serious offence having punishment with death or life imprisonment or imprisonment for a term not less than ten years, it is mandatory that the appellate court gives an opportunity to the Public Prosecutor for showing cause in writing against such release.
14. ... in case the appellate court is inclined to consider the release of the convict on bail, the Public Prosecutor shall be granted an opportunity to show cause in writing as to why the appellant be not released on bail. Such a stringent provision is introduced only to ensure that the court is apprised of all the relevant factors so that the court may consider whether it is an appropriate case for release having regard to the manner in which the crime is committed, the gravity of the offence, age, criminal antecedents of the convict, impact on public confidence in the justice delivery system, etc. Despite such an opportunity being granted to the Public Prosecutor, in case no 6 cause is shown in writing, the appellate court shall record that the State has not filed any objection in writing. This procedure is intended to ensure transparency, to ensure that there is no allegation of collusion and to ensure that the court is properly assisted by the State with true and correct facts with regard to the relevant considerations for grant of bail in respect of serious offences, at the post-conviction stage."
59. Angana v. State of Rajasthan [Angana v. State of Rajasthan, (2009) 3 SCC 767: (2009) 2 SCC (Cri) 742] : (SCC p. 771, para
14) "14. 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 the nature of the offence, how the occurrence had taken place, and whether in any manner bail granted earlier had been misused. In fact, there is no straitjacket formula which can be applied in exercising 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 the Criminal Procedure Code."
60.Sunil Kumar v. Vipin Kumar [Sunil Kumar v. Vipin Kumar, (2014) 8 SCC 868: (2014) 6 SCC (Cri) 146] : (SCC p. 871, paras 13-14) "13. We have heard the rival legal contentions raised by both parties. We are of the opinion that the High Court [Vipin Kumar v. State of U.P., 2013 SCC OnLine All 12976] has rightly applied its discretionary power under Section 389CrPC to enlarge the respondents on bail. Firstly, both the criminal appeal and criminal revision filed by both the parties are pending before the High Court which means that the convictions of the respondents are not confirmed by the appellate court. Secondly, it is an admitted fact that the respondents had been granted bail earlier and they did 7 not misuse their liberty. Also, the respondents had conceded to the occurrence of the incident though with a different version.
14. We are of the opinion that the High Court has taken into consideration all the relevant facts including the fact that the chance of the appeal being heard in the near future is extremely remote, hence, the High Court has released the respondents on bail on the basis of sound legal reasoning. We do not wish to interfere with the decision of the High Court at this stage. The appeal is dismissed accordingly."
61. However, we hasten to add that if the court is inclined to release the appellant on bail, it has to be predicated on his own bond as facilitated by sub-section (1).
62.Section 436-A of the Code 436-A. 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:
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, 8 the period of detention passed due to delay in proceeding caused by the accused shall be excluded."
63. Section 436-A of the Code has been inserted by Act 25 of 2005. This provision has 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 436-A, 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 offence, he shall be released by the court on his personal bond with or without sureties. The word "shall" clearly denotes the 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 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. This Court in Bhim Singh v. Union of India [Bhim Singh v. Union of India, (2015) 13 SCC 605 : (2016) 1 SCC (Cri) 663] , while dealing with the aforesaid provision, has directed that : (SCC pp. 606-07, paras 5-6) 9 "5. Having given our thoughtful consideration to the legislative policy engrafted in Section 436-A and large number of undertrial prisoners housed in the prisons, we are of the considered view that some order deserves to be passed by us so that the undertrial prisoners do not continue to be detained in prison beyond the maximum period provided under Section 436-A.
6. We, accordingly, direct that jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge shall hold one sitting in a week in each jail/prison for two months commencing from 1-10-2014 for the purposes of effective implementation of Section 436- A of the Code of Criminal Procedure. In its sittings in jail, the above judicial officers shall identify the undertrial prisoners who have completed half period of the maximum period or maximum period of imprisonment provided for the said offence under the law and after complying with the procedure prescribed under Section 436-A pass an appropriate order in the jail itself for release of such undertrial prisoners who fulfil the requirement of Section 436-A for their release immediately. Such jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge shall submit the report of each of such sittings to the Registrar General of the High Court and at the end of two months, the Registrar General of each High Court shall submit the report to the Secretary General of this Court without any delay. To facilitate compliance with the above order, we direct the Jail Superintendent of each jail/prison to provide all necessary facilities for holding the court sitting by the above judicial officers. A copy of this order shall be sent to the Registrar General of each High Court, who in turn will communicate the copy of the order to all Sessions Judges within his State for necessary compliance."
65. The aforesaid directions issued by this Court if not complied fully, are expected to be complied with in order to prevent the unnecessary incarceration of undertrials, and to uphold the inviolable principle of presumption of innocence until proven guilty."
1010. The learned First Appellate Court failed to consider the binding precedent of the Hon'ble Supreme Court; hence, the order passed by the learned First Appellate Court is unsustainable.
11. In view of the above, the present petition is allowed and the substantive sentences of imprisonment imposed by the learned Trial Court are ordered to be suspended subject to his furnishing of the personal and surety bonds in the sum of Rs. 50,000/- with two sureties to the satisfaction of learned Trial Court and deposit of fine, if not deposited earlier. A copy of this order be sent to the Jail Superintendent, Model Central Jail, Kanda, District Shimla and learned Trial Court, through FASTER.
(Rakesh Kainthla) Judge 29th February, 2024 (saurav pathania) Digitally signed by KARAN SINGH GULERIA DN: C=IN, O=HIGH COURT OF HIMACHAL KARAN PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=e5d61f6599be410af7c5f0b57379e22587 8f23c9ea27b281046985b3b1fe0b75, SINGH PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=f72cf9165791d55ec93937529 1962d0d90d094876bd59591426c0b1ce651f01f, CN=KARAN SINGH GULERIA GULERIA Reason: I am the author of this document Location:
Date: 2024-02-29 17:23:47