Jai Kishan vs State Of Rajasthan (2024:Rj-Jd:23893)

Rajasthan High Court - Jodhpur

Jai Kishan vs State Of Rajasthan (2024:Rj-Jd:23893) on 23 May, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:23893]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                No. 317/2024

Jai Kishan S/o Ira Ram, Aged About 37 Years, R/o Janguwas
Bhacharna, Police Station Luni, District Jodhpur. (Lodged In
Central Jail, Jodhpur)
                                                                    ----Petitioner
                                     Versus
State Of Rajasthan, Through Pp
                                                                  ----Respondent


For Petitioner(s)          :     Mr. R.K. Bishnoi
For Respondent(s)          :     Mr. Arun Kumar AGA



                HON'BLE MR. JUSTICE FARJAND ALI

Order 23/05/2024

1. The instant 2nd application for suspension of sentence has been moved on behalf of the applicant in the matter of judgment dated 20.04.2023 passed by the learned Additional Sessions Judge No.4, Jodhpur Metropolitan in Sessions Case No.184/2018 whereby he was convicted and sentenced as under:-

Offence for Substantive sentence Fine and default which sentence convicted Section 452/34 Three years R.I. Fine of Rs.4,000/- and in IPC default of payment of fine, additional of 2 months R.I..

Section     323/34 One year's R.I.                      Fine of Rs.1,000/- and in
IPC                                                     default of payment of fine,
                                                        additional of one month's
                                                        R.I..
Section     307/34 Seven years R.I.                     Fine of Rs.10,000/- and in
IPC                                                     default of payment of fine,
                                                        additional of six months'R.I.

All the sentences were ordered to run concurrently.

[2024:RJ-JD:23893] (2 of 5) [SOSA-317/2024]

2. His first application for suspension of sentence was dismissed as not pressed by this Court vide order dated 23.05.2023 being in S.B. Criminal Misc. Suspension of Sentence Application No.424/2023. Hence, the instant application for suspension of sentence.

3. It is contended on behalf of the applicant that the learned trial Judge has not appreciated the correct, legal and factual aspects of the matter and thus, reached at an erroneous conclusion of guilt, therefore, the same is required to be appreciated again by this court being the first appellate Court. He submits that applicant is behind the bars more than one and half years. He placed reliance on the Petition(s) for Special Leave to Appeal (Crl.) No(s) 2893/21 titled Manohar Lal Ainani Vs. State of Rajasthan & Anr., wherein it was held vide order dated 15.11.2021 that looking to the prolonged custody period of the petitioner, bail shall be granted to him in that matter. In another landmark judgment of Satender Kumar Antil vs. Central Bureau of Investigation and Ors. reported in AIR 2022 SC 3386, the aforesaid aspect has been reiterated. The petitioner is on bail during trial and he has not misused the liberty so granted to him. Hearing of the appeal is likely to take long time, therefore, the application for suspension of sentence may be granted.

3. Per contra, learned public prosecutor has vehemently opposed the prayer made on behalf of the accused-applicant for releasing the appellant on application for suspension of sentence. (Downloaded on 29/05/2024 at 08:35:29 PM) [2024:RJ-JD:23893] (3 of 5) [SOSA-317/2024]

4. Heard learned counsel for the parties and perused the material available on record.

5. It is emanating from the record that the applicant is in custody in this case for more than one and half years. Perusal of the statement of P.W. 3 Ramniwas which would reveal that the allegations against the petitioner and the other accused are identical in nature to some extent. The sentence of co-accused Purkha Ram has already been suspended by this Court vide order dated 23.05.2023 passed in SB Crl. Misc. Suspension of Sentence Application No.424/2023 and after that one year has lapsed but there seems no hope for hearing the appeal on merits in near future.

6. Hon'ble the Supreme Court has propounded guidelines on the subject of bail in the case of Satender Kumar Antil (supra) and has held as under:-

"41. Sub-section (2) has to be read along with Sub-section (1). The proviso to Sub-section (2) restricts the period of remand to a maximum of 15 days at a time. The second proviso prohibits an adjournment when the witnesses are in attendance except for special reasons, which are to be recorded. Certain reasons for seeking adjournment are held to be permissible. One must read this provision from the point of view of the dispensation of justice. After all, right to a fair and speedy trial is yet another facet of Article 21. Therefore, while it is expected of the court to comply with Section 309 of the Code to the extent possible, an unexplained, avoidable and prolonged delay in concluding a trial, appeal or revision would certainly be a factor for the consideration of bail. This we hold so notwithstanding the beneficial provision Under Section 436A of the Code which stands on a different footing.

42. ......

43. 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 436A 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 likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the Appellant.

44. Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit conferred Under Section 436A of the Code among other factors ought to be considered for a favourable release on bail."

[2024:RJ-JD:23893] (4 of 5) [SOSA-317/2024] (Emphasis Supplied)

7. Considering the overall facts and circumstances of the case and looking to the fact that as some of the questions raised by the learned counsel for the appellants deserves to be appreciated again and if the same will be decided in his favour, he may get acquittal; out of total 07 years of sentence he has served more than one and half years of the sentence and looking to voluminous pendency of the cases, there is no likelihood of hearing of the appeal on merits in near future, thus, while refraining from passing any comments on the niceties of the matter, this court is of the opinion that it is a fit case for suspending the sentence awarded to the accused appellant.

8. Accordingly, the second application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the impugned order of sentence dated 20.04.2023 passed by the learned learned Additional Sessions Judge No.4, Jodhpur Metropolitan in Sessions Case No.184/2018 against the appellant-applicant Jai Kishan S/o Iraram shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail provided he executes a personal bond in the sum of Rs.50,000/-with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 28.06.2024 and whenever ordered to do so till the disposal of the appeal on the conditions indicated below:-

(1) That he will appear before the trial Court in the month of January of every year till the appeal is decided.

[2024:RJ-JD:23893] (5 of 5) [SOSA-317/2024] (2) That if the applicant changes the place of residence, he will give in writing his changed addresses to the trial Court as well as to the counsel in the High Court. (3) Similarly, if the sureties change their addresses, they will give in writing their changed address to the trial Court.

9. The learned trial Court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused- applicant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicant does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.

(FARJAND ALI),J 570-Mamta/-

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