Himachal Pradesh High Court
Sewa Kumar & Another vs State Of Himachal Pradesh on 10 January, 2025
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP No. 4586 of 2024 in
Criminal Appeal No. 579 of 2024
Decided on 10.01.2025
Sewa Kumar & another
....Applicants/appellants
Versus
State of Himachal Pradesh
.... Non-applicant/Respondent
Coram
Hon'ble Mr Justice Tarlok Singh Chauhan, Judge.
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1
For the Applicant/ : Mr. Ramesh Chand Sharma,
Appellant Advocate.
For the Non- : Ms. Sharmila Patial, Additional
applicant/Respondent/ Advocate General
State
Rakesh Kainthla,Judge (Oral)
The applicants/applicants have filed an application seeking suspension of sentence passed by learned Additional Sessions Judge, Nurpur vide order dated 28.08.2023. It has been asserted that the prosecution has failed to prove its story, as material witnesses have turned ____________ Whether reporters of the local papers may be allowed to see the judgment? Yes 2 hostile. The prosecution has also failed the complete the link evidence to prove its case. The prosecution did not examine Pushpa Devi, Pradhan, who was associated by the police during the recovery of the dead body and the articles related to the case. The signatures of the applicants/appellants do not match with other signatures marked on the seizure memo. The prosecution case is doubtful. The applicants/appellants would abide by all the terms and conditions, which the Court may impose. Hence, the application.
2. The application is opposed by filing a reply asserting that the application is not maintainable. There is no infirmity in the findings recorded by the learned Trial Court. The learned Trial had convicted the applicants/appellants for the commission of offences punishable under Sections 302 and 201 read with Section 34 of IPC. The applicants/appellants deserve no leniency from the Court. The applicants/appellants are not entitled to bail keeping in view the gravity of the offence. The judgment of the learned Trial Court is based upon the reason. Learned 3 Trial Court had analysed each and every circumstance. The offence was committed against a child; therefore, it was prayed that the application be dismissed.
3. A rejoinder denying the contents of the reply and affirming those of the application was filed.
4. We have heard Mr Ramesh Chand Sharma, learned counsel for the applicants/appellants and Ms Sharmila Patial, learned Additional Advocate General for the non-applicant/respondent/State.
5. Mr Ramesh Chand Sharma, learned counsel for the applicants/appellants submitted that independent witnesses have turned hostile and the Pradhan was not examined. There are fair chances of acquittal of the applicants/appellants. Hence, it was prayed that the present application be allowed and the applicants/appellants be released on bail.
6. Ms. Sharmila Patial, learned Additional Advocate General submitted that the other witnesses to the disclosure statements were examined before the learned Trial Court. There is no infirmity in the judgment passed by the learned 4 Trial Court; therefore, she prayed that the present petition be dismissed.
7. We have considered the submissions madeat the bar and have gone through the records carefully.
8. It was laid down by the Hon'ble Supreme Court in Omprakash Sahni v. Jai Shankar Chaudhary, (2023) 6 SCC 123:
2023 SCC OnLine SC 551 that the Court should consider the gravity of the offence while considering an application for bail under Section 389 of Cr. P.C. The Courts should not release a person on bail merely because he was on bail throughout the trial and had not misused the concession of liberty granted to him. It was observed:
"21. Suspension conveys postponement or temporarily preventing a state of affairs from continuing. According to Black's Law Dictionary (Seventh Edition), the word "suspend" means, inter alia, to interrupt; postpone; or defer. Black's Law Dictionary (Seventh Edition) describes the word "suspension" to mean, inter alia, an act of temporarily delaying, interrupting or terminating something. Attributing the same meaning to the word "suspend" as pointed out above, the New Oxford Dictionary of English (1998 Edition) describes suspending as temporarily preventing from continuing or being enforced or given effect or deferring or delay an action, event or judgment.
22. Thus, when we speak of suspension of sentence after conviction, the idea is to defer or postpone the execution 5 of the sentence. The purpose of postponement of sentence cannot be achieved by detaining the convict in jail; hence, as a natural consequence of postponement of execution, the convict may be enlarged on bail till further orders.
23. The principle underlying the theory of criminal jurisprudence in our country is that an accused is presumed to be innocent till he is held guilty by a court of competent jurisdiction. Once the accused is held guilty, the presumption of innocence gets erased. In the same manner, if the accused is acquitted, then the presumption of innocence gets further fortified.
24. From a perusal of Section 389 CrPC, it is evident that save and except the matter falling under the category of sub-section (3) neither any specific principle of law is laid down nor any criteria has been fixed for consideration of the prayer of the convict and further, having a judgment of conviction erasing the presumption leaning in favour of the accused regarding innocence till contrary recorded by the court of competent jurisdiction, and in the aforesaid background, there happens to be a fine distinction between the prayer for bail at the pre- conviction as well as the post-conviction stage viz. Sections 437, 438, 439 and 389(1)CrPC.
9. It was further heldthat while deciding the application for suspension of the sentence, the Court should consider whether the applicant has a fair chance of acquittal. It was observed:
33. Bearing in mind the aforementioned principles of law, the endeavour on the part of the court, therefore, should be to see whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the aforementioned question is to be in the affirmative, as a necessary corollary, we shall have to say that, if 6 ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has a fair chance of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, based on which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach."
10 Similarly, it was held in (NCT of Delhi) v. Lokesh Chadha, (2021) 5 SCC 724 : (2021) 2 SCC (Cri) 704: 2021 SCC OnLine SC 178, that while granting bail under Section 439 Cr.P.C., the Courts are liberal and apply the principle that bail is a rule and jail is an exception; however, in case of post-conviction bail, there is a finding of guilt and the question of presumption of innocence does not arise. It was observed:
"10. At this stage, we will refer to the decision of a two-judge Bench of this Court in Preet Pal Singh v. State of U.P. [Preet Pal Singh v. State of U.P., (2020) 8 SCC 645: (2020) 3 SCC (Cri) 897] where Indira Banerjee, J., speaking for the Court, observed as follows : (SCC p. 655, para 35) "35. There is a difference between the grant of bail under Section 439 CrPC in case of pre-trial 7 arrest and suspension of sentence under Section 389 CrPC and the grant of bail, post-
conviction. In the earlier case there may be a presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. [Dataram Singh v. State of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675] However, in case of post- conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the court considering an application for suspension of sentence and grant of bail is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC."
11. This position was reiterated in Shivani Tyagi v. State of U.P., 2024 SCC OnLine SC 842 wherein it was observed:
3. Section 389 of the Code of Criminal Procedure (for short the "Cr. PC") deals with the suspension of execution of sentence pending the appeal against conviction and release of appellant(s) on bail. The said provision mandates for recording of reasons in writing leading to the 8 conclusion that the convicts are entitled to get suspension of sentence and consequential release on bail. The said requirement thus indicates the legislative intention that the appellate Court invoking the power under Section 389, Cr. P.C. should assess the matter objectively and that such assessment should reflect in the order.
4. We will briefly refer to some of the relevant decisions dealing with Section 389, Cr. P.C. In the case of short-term imprisonment for conviction of an offence, suspension of sentence is the normal rule and its rejection is the exception. (See the decision in Bhagwan Rama Shinde Gosai v. State of Gujarat (1999) 4 SCC 421).
However, we are of the considered view that the position should be vice-versa in the case of conviction for serious offences when the invocation of power under Section 389 is invited.
This Court, in the decision in Kishori Lal v. Rupa(2004) 7 SCC 638, held in paragraphs 4 and 5 thus:--
"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 the 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 his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of 9 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 an allegation of misuse of liberty during the earlier period when the accused-respondents were on bail."
5. In the decision in Anwari Begum v. Sher Mohammad (2005) 7 SCC 326 this Court in paragraphs 7 and 8 held thus:
--
"7. Even on a cursory perusal the High Court's order shows complete non-application of mind. Though a detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a Court dealing with the bail application should be satisfied as to whether there is a prima facie case, but an exhaustive exploration of the merits of the case is not necessary. The Court dealing with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course.
8. There is a need to indicate in the order reasons for prima facie concluding why bail was being granted, particularly where an accused was charged of having committed a serious offence. It is necessary for the Courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:
1. The nature of the accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
2. Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant;10
3. Prima facie satisfaction of the Court in support of the charge.
Any order dehors of such reasons suffers from non- application of mind as was noted by this Court in Rama Govind Upadhyayv. Sudarshan Singh (2002) 3 SCC 598, Puran v.Rambilas(2001) 6 SCC 33 and in Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528."
12. It was further held that the suspension is to be granted by recording the reasons and it is impermissible to release the accused simply because the appeal was not likely to be heard soon. It was observed:
"9. We have already referred to the mandate under Section 389 Cr. P.C. that the order passed invoking the said provision should reflect the reason for coming to the conclusion that the convicts are entitled to get suspended their sentence and consequential release on bail. In the decision in State of Haryana v. Hasmat (2019) 5 SCC 373: 2019 INSC 377, this Court held that in an appeal against conviction involving a serious offence like murder punishable under Section 302, IPC the prayer for suspension of sentence and grant of bail should be considered with reference to the relevant factors mentioned thereunder, though not exhaustively. On its perusal, we are of the opinion that factors like the nature of the offence held to have been committed, the manner of their commission, the gravity of the offence, and also the desirability of releasing the convict on bail are to be considered objectively and such consideration should reflect in the consequential order passed under Section 389, Cr. P.C. It is also relevant to state that the mere factum of sufferance of incarceration for a particular period, in a case where life imprisonment is imposed, cannot be a reason for invocation of power under Section 389 Cr. P.C. without referring to the relevant factors. We say so because there cannot be any 11 doubt with respect to the position that disposal of appeals against conviction, (especially in cases where life imprisonment is imposed for serious offences), within a short span of time may not be possible in view of the number of pending cases. In such circumstances if it is said that disregarding the other relevant factors and parameters for the exercise of power under Section 389, Cr. P.C., the likelihood of delay and incarceration for a particular period can be taken as a ground for suspension of sentence and to enlarge a convict on bail, then, in almost every such case, favourable invocation of said power would become inevitable. That certainly cannot be the legislative intention as can be seen from the phraseology in Section 389 Cr. P.C. Such an interpretation would also go against public interest and social security. In such cases giving preference over appeals where sentence is suspended, in the matter of hearing or adopting such other methods making an early hearing possible could be resorted. We shall not be understood to have held that irrespective of inordinate delay in consideration of appeal and long incarceration undergone the power under the said provision cannot be invoked. In short, we are of the view that each case has to be examined on its own merits and based on the parameters, to find out whether the sentence imposed on the appellant(s) concerned should be suspended during the pendency of the appeal and the appellant(s) should be released on bail."
13. Therefore, the applicants can only be released on bail if they show that their appeal is likely to succeed on merits.
14. A perusal of the judgment shows that the same is based upon the disclosure statement, consequent recovery effected at the instance of the appellants, and the deceased 12 having been last seen in the company of the accused. Non- examination of Pradhan cannot be a reason for disbelieving the disclosure statement and consequent recovery when the other witnesses to the recovery have been examined. The prosecution examined Up-Pradhan, who was enjoying a good reputation and against whom nothing was asserted, therefore, the statement under Section 27 of the Indian Evidence Act cannot be discarded due to the non- examination of Pradhan.
15 It was submitted that the witnesses have turned hostile but that by itself is not a ground for acquittal because the prosecution had examined other witnesses, who have supported the prosecution case. Learned Trial Court noticed in its judgment that one of the hostile witnesses was the husband of the accused and the other did not want to secure the conviction of the accused; therefore, the mere fact that the witnesses have turned hostile is no ground for holding that there are fair chances of the acquittal of the accused.
16. It was submitted that there is a difference in the signatures, however, no Hand Writing Expert was examined 13 to establish this fact and the Court is not competent to analyse the handwriting without the aid of the Hand Writing Expert.
17. No other point was urged.
18. In view of the above, it cannot be said that applicants/appellants have a fair chance of acquittal.
19. Consequently, the present application fails and the same is dismissed.
20. The observations made hereinbefore shall remain confined to the disposal of the present application and will have no bearing whatsoever on the merits of the case.
( Tarlok Singh Chauhan) Judge (Rakesh Kainthla) 10 January, 2025 th Judge (ravinder)