Allahabad High Court
Raju vs State Of U.P. on 27 January, 2023
Bench: Om Prakash Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 90
Case :- CRIMINAL APPEAL No. - 2683 of 2018
Appellant :- Raju
Respondent :- State of U.P.
Counsel for Appellant :- Arun Kumar Sharma,Rahul Gaur,Ram Narain,Subhash Chandra Yadav
Counsel for Respondent :- G.A.
Hon'ble Om Prakash Tripathi,J.
Order on Bail Application No. 01 of 2018 under section 389 (1) Cr.P.C.
Learned counsel for the appellant and learned AGA for the State are present.
This Criminal Appeal has been filed against the judgment and order dated 04.05.2018 passed by Session Judge, Firozabad in Crime No.448 of 2016, under section 304-B IPC and under section 4 D.P. Act, Police Station Jasrana, District Firozabad by which the appellant had been convicted and sentenced for rigorous imprisonment of 10 years in section 304-B IPC and also R.I. of two years in section 4 of Dowry Prohibition Act with the fine of Rs.10,000/-.
Learned counsel for the appellant submitted that the applicant is the husband of the deceased and co-accused of this case Bhagwan Das and Smt. Kamal Devi, father-in-law and mother-in-law of the deceased have already been granted bail by the co-ordinate Bench of this Court vide order dated 5.7.2018 passed in Criminal Appeal No.2674 of 2018.
It is submitted on behalf of the appellant-applicant that custody certificate issued by the Jail Superintendent, Firozabad dated 13.01.2022 shows that appellant-applicant has been convicted for 10 years imprisonment by the impugned judgment and he has already undergone seven years, six months and seven days with remission. The appellant-applicant is languishing in jail since 23.10.2016 before conviction.
It is submitted that the provisions of Section 436A Cr.P.C. have been made applicable to the pending appeals against the order of conviction and Section 389 Cr.P.C. is to be reckoned along with Section 436A Cr.PC.
It is submitted that the appellant-applicant has already undergone detention for a period more than half of maximum period of sentence specified in the impugned judgment. The appeal is not likely to be heard in near future and as such the aforesaid factor may be considered in favour of the appellant-applicant and the appellant-applicant may be released on bail.
The Hon'ble Apex Court in the case of Dinesh Kumar Sinha Vs. State of Jharkhand (2009) 6 SCC 628 has granted bail in pending appeal on the ground that the accused has undergone half of the sentence and there is no possibility of early hearing of the appeal.
In Bhagwan Rama Shinde Gosai and others Vs. State of Gujarat (1999) 4 SCC 421, the Apex Court has observed as under :-
"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 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 of 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 bestow special concern in the matter of suspending of sentence, so as to make the appeal right, meaningful and effective. Of course, appellate courts can impose similar conditions when bail is granted."
Similarly, the Supreme Court in Ramnik Singh Vs. Intelligence Officer, Directorate of Revenue Intelligence, 2013 SCC Online SC 1276 has released the convict considering the custody certificate and that the convict has already undergone half of the sentence imposed and the possibility of appeal being taken up in near future is remote and as such, has entitled the convict for suspension of sentence during pendency of appeal.
In Saudan Singh Vs. State of U.P. vide order dated 05.10.2021 in Special Leave to Appeal (Criminal) No.4633 of 2021, the Apex Court has observed :
"We may note that there may be even convicts in custody in cases other than life sentence cases and in those cases again the broad parameter of 50 per cent of the actual sentence undergone can be the basis for grant of bail."
The Hon'ble Apex Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another passed in Special Leave Petition (Crl.) No.5191 of 2021 dated 11th July, 2022 has held that the delay in taking up the main appeal, coupled with the benefit conferred with Section 436A Cr.P.C. among other factors are to be considered for favourable release on bail.
"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.
46. Section 436A of the Code has been inserted by Act 25 of 2005. This provision has got 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 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision."
Learned A.G.A. for the State has opposed the bail application and submitted that the appellant and his family members have demanded dowry and they harassed the deceased but could not dispute the fact that the appellant has been served out more than half of the sentence. However, he has not demonstrated any factor which would dis-entitle the appellant-applicant from being released on bail. Learned A.G.A. does not dispute the aforesaid proposition of law laid down by the Apex Court.
Keeping in view the submissions advanced by the learned counsel for the appellant-applicant and having regard to the decisions of the Apex Court in the cases of Satender Kumar Antil (supra), Dinesh Kumar Sinha (supra), Bhagwan Rama Shinde Gosai and others (supra), Ramnik Singh (supra) and Saudan Singh (supra), and the fact that the appeal is not likely to be heard in near future, the Court is of the opinion that the sentence awarded by the trial court be suspended and the appellant-applicant be enlarged on bail.
Consequently, the prayer for bail is granted.
Without expressing any opinion on the merits of the case, let the appellant-applicant- Raju, convicted and sentenced in aforesaid case be released on bail on his furnishing personal bond with two sureties each in the like amount to the satisfaction of the court concerned.
The sentence of the appellant is suspended, during pendency of appeal, subject to deposit entire amount imposed as fine.
On acceptance of bail bond and personal bond, the lower court shall transmit photostat copies thereof to this Court for being kept on the record.
Order on Appeal
Heard learned counsel for the appellant.
Lower court record is received.
Paper book is prepared.
List this appeal in due course.
Order Date :- 27.1.2023
Monika
