Allahabad High Court
Awadesh vs State Of U.P. on 29 January, 2021
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 86
Case :- CRIMINAL APPEAL No. - 6275 of 2018
Appellant :- Awadesh
Respondent :- State of U.P.
Counsel for Appellant :- Sheetala Prasad Pandey,Dashrath Lal
Counsel for Respondent :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
Order on Bail Application
1. Heard Sri Dashrath Lal, Advocate for appellant and learned A.G.A. for State.
2. This is a bail application for suspension of sentence pending the appeal filed under Section 374(2) Cr.P.C. which has arisen from judgment and order dated 24.09.2018 passed by Additional Sessions Judge/ Fast Track Court, Basti in Session Trial No. 268 of 2015 (State vs. Awadesh and others), Case Crime No. 960 of 2015, under Sections 498A, 304B IPC and 3/4 Dowry Prohibition Act, Police Station Kaptanganj, District Basti whereby appellant has been convicted under Sections 498A, 304B and 3/4 Dowry Prohibition Act and sentenced 10 years rigorous imprisonment under Section 304B IPC; 3 years rigorous imprisonment under Section 498A IPC with fine of Rs. 5000/- and 2 years rigorous imprisonment with fine of Rs. 1000/- under Section 3/4 Dowry Prohibition Act.
3. Learned counsel for appellant submits that appellant is husband who has been awarded maximum sentence of 10 years under Section 304B IPC and he has already undergone about six and half years of sentence. He further points out that entire case is based on dying declaration though conduct of appellant was found to be bona fide. The allegations with regard to demand of dowry and harassment are vague in nature, therefore, he submits that a case of bail during pendency of appeal is made out.
4. Learned A.G.A. appearing for State has opposed the bail. He, however, has not disputed that appellant has undergone about six and half years of sentence.
Law on Suspension of Sentence Pending Appeal
5. Suspension of sentence by the Appellate Court, during pending appeal, preferred by convicted person and to release on bail is provided under section 389 Cr.P.C. The Appellate Court may even without hearing the counsel for State decline bail. However in case Appellate Court is inclined to consider the release of convict on bail, the counsel for State shall be granted an opportunity to show cause in writing as to why the appellant be not released on bail, more specifically if the convict is sentenced for death or imprisonment for life or for a period of ten years or more. (See, Atul Tripathi Vs State of Uttar Pradesh : (2014) 9 SCC 177).
6. There is a difference between grant of bail under Section 439 Cr.P.C. in a case of pre trial and suspension of sentence under Section 389 Cr.P.C. for grant of bail post conviction, as in a case of post conviction bail there is a finding of guilt and question of presumption of innocence does not arise, therefore, the principle of bail being the rule and jail an exception is not attracted in such cases. The discretion under Section 389(1) Cr.P.C. is to be exercised judiciously and the Court is under an obligation to consider, whether any cogent grounds were disclosed which might give substantial doubts about the validity of conviction and whether there is a likelihood of unreasonable delay in disposal of appeal. Supreme Court in a recent judgment passed in Preet Pal Singh vs. State of U.P. and another, (2020) 8 SCC 649 held as under:
"In considering an application for suspension of sentence, the Appellate Court is only to examine if there is such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. Where there is evidence that has been considered by the Trial Court, it is not open to a Court considering application under Section 389 to re-assess and/or re-analyze the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail."
7. Supreme Court has reiterated in Mahipal vs. Rajesh Kumar alias Polia and another, (2020) 2 SCC 118 that to give reasoned decision, while granting or refusing bail, lies at the heart of commitment of open justice.
8. In backdrop of above legal position, after considering the rival submissions as also the facts that appellant has already undergone about six and half years of sentence, whereas the maximum sentence awarded is 10 years; independent witnesses have not supported the prosecution case; this appeal is of the year 2018 and there is no likelihood of early hearing, without commenting on the merit of the case, let the Appellant-Awadesh, be released on bail in Session Trial No. 268 of 2015 (State vs. Awadesh and others), Case Crime No. 960 of 2015, under Sections 498A, 304B, 302 IPC and 3/4 Dowry Prohibition Act, Police Station Kaptangaj, District Basti, during pending appeal on following conditions:-
(a) To furnish a personal bond and two sureties each in the like amount to the satisfaction of Court concerned.
(b) The appellants shall, either in person or through counsel, be present in this Court for hearing over appeal.
(c) To deposit Fine before the Court within a month, after release from jail.
Order on memo of appeal
List in due course for final hearing.
Order Date :- 29.01.2021
AK
