Sushil Kumar vs State Of U.P.
2024 Latest Caselaw 16331 ALL

Allahabad High Court

Sushil Kumar vs State Of U.P. on 9 May, 2024

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:85016
 
Court No. - 77
 

 
Case :- CRIMINAL APPEAL No. - 3502 of 2021
 

 
Appellant :- Sushil Kumar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Pravina Kumar Pandey,Tejasvi Misra
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Rajeev Misra,J.
 

1. Heard Mr. Ashutosh Pandey, Advocate, holding brief of Mr. Pravina Kumar Pandey, the learned counsel for applicant-appellant and the learned A.G.A. for State.

2. Perused the record.

3. This repeat application for bail/suspension of sentence has been filed by applicant-appellant Sushil Kumar seeking his enlargement on bail in Case Crime No. 291 of 2019 under Sections 376, 328, 406, 506 I.P.C., Section 3/4, 13/14 POCSO and 67 IT Act, Police Station Modinagar, District Ghaziabad, during the pendency of present appeal.

4. The first bail application of applicant-appellant was rejected by this Court by a detailed order dated 09.05.2023 passed in Criminal Appeal No. 3502 of 2021 (Sushil Kumar Vs. State of U.P). For ready reference, the same is reproduced hereinunder:-

"Order On The Application For Suspension Of Sentence

Heard Mr. Pravin Kumar Pandey, the learned counsel for applicant appellant and the learned A.G.A. for State.

Perused the record.

Feeling aggrieved by the judgment and order dated 15.3.2021 passed by Addition Sessions Judge/Special Judge (POCSO) Act, Ghaziabad in Case No. 148 of 2019 (State of U.P. Vs. Sushil Kumar), arising out of Case Crime No. 219 of 2019, under Sections 376, 328, 406, 506 I.P.C. and Sections 3/4, 13/14 POCSO Act and 67 I.T. Act, Police Station Modinagar, District Ghaziabad, applicant appellant has preferred aforementioned Criminal Appeal.

By means of above noted judgment and order, applicant appellant has been convicted under Section 376 I.P.C. with ten years rigorous imprisonment along with fine of Rs. 75,000/- and in case of default in payment of fine applicant appellant is to undergo three months additional rigorous imprisonment, under Section 328 I.P.C. with five years rigorous imprisonment along with fine of Rs. 25,000/- and in case of default in payment of fine applicant appellant is to undergo one month additional simple imprisonment, under Section 506 I.P.C. with two years rigorous imprisonment along with fine of Rs. 5,000/- and in case of default in payment of fine applicant appellant is to undergo fifteen days additional imprisonment, under Section 67 I.T. Act, 2007 with three years rigorous imprisonment along with fine of Rs. 50,000/- and in case of default in payment of fine applicant appellant is to undergo one month additional simple imprisonment, under Section 14(1) POCSO Act with five years rigorous imprisonment along with fine of Rs. 25,000/- and in case of default in payment of fine applicant appellant is to undergo one month additional simple imprisonment. The impugned judgment and order further records that 25% fine deposited shall be paid to the prosecutrix towards compensation and all the sentences are to run concurrently.

Record shows that applicant appellant was taken into custody on 19.3.2019 and is in custody since then. Accordingly applicant appellant has filed aforementioned application for suspension of sentence/bail during the pendency of present appeal.

Learned A.G.A. has filed his counter affidavit to the bail application filed by applicant appellant but no rejoinder affidavit has been filed by applicant appellant in opposition to the same.

Learned counsel for applicant appellant contends that applicant appellant was enlarged on bail during the pendency of trial. Applicant appellant was taken into custody on 19.3.2019. He has undergone more than four years of incarceration. He further contends that there is no likelihood of the appeal being heard in near future on account of heavy pendency of bail before this Court. Considering the period of incarceration undergone by applicant appellant and the fact noted above, he further contends that the applicant appellant be enlarged on bail. In case, applicant appellant is enlarged on bail he shall not misuse the liberty of bail. Even otherwise applicant appellant is a man of clean antecedents, and has no criminal history to his credit except the present one. He therefore contends that applicant appellant be enlarged on bail.

Per contra, the learned A.G.A. has opposed the present application for bail. He submits that in view of the gravity and nature of offence committed by applicant, court below has awarded maximum sentence of ten years to applicant appellant. Applicant appellant has undergone only four years of incarceration. Considering the heinous character of the offence, no indulgence be granted by this Court in favour of the applicant. To buttress his submission he has invited the attention of Court to the recital contained in paragraph 31 of the paper book, whereas the Court has taken note the statement of the prosecutrix. On the aforesaid premise, the learned A.G.A. contends that no sympathy be shown by this Court in favour of the applicant appellant. Attention of the Court was also invited to the judgment of the

Supreme Court in Shakuntala Shukla Vs. State of U.P., 2021 SCC OnLine SC 672.

When confronted with above, the learned counsel for applicant appellant could not overcome the same.

Having heard the learned counsel for applicant appellant, the learned A.G.A. for State, upon perusal of record, evidence, acquisition made, complicity of accused and considering the nature and gravity of the offence committed by the applicant appellant, this Court finds that the solitary ground urged by the learned counsel for applicant appellant to enlarge applicant appellant on bail on account of the period of incarceration undergone is neither a good nor sufficient ground in the facts and circumstances of the case.

Accordingly, the application for suspension of sentence fails and is liable to be rejected.

It is accordingly rejected"

5. Learned counsel for applicant-appellant contends that by means of impugned judgment and order applicant-appellant has been sentenced to 10 years rigorous imprisonment. Applicant-appellant is in jail since 19.03.2019. As such, he has undergone more than five years of incarceration. Since maximum sentence awarded by Court below is 10 years and applicant-appellant has already completed half of the sentence, therefore, he is liable to be enlarged on bail.

6. Even otherwise, applicant-appellant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 19.03.2019. As such, he has undergone more than 5 years of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant-appellant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant-appellant during the pendency of trial. It is thus urged that applicant-appellant is liable to be enlarged on bail. In case, the applicant-appellant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

7. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that considering the nature and gravity of offence applicant-appellant is not liable to be enlarged on bail simply on the ground of the period of incarceration undergone. Attention of the Court was then invited to the judgment of the Supreme Court in Om Prakash Sahni Vs. Jai Shankar Chaudhary and other (2023) 6 SCC 123, wherein it has been observed that a convicted accused cannot be enlarged on bail until and unless, the Court hearing the bail application of such convict records a finding that prima facie the appeal itself is liable to be allowed. Since, no such argument has been raised before Court by the learned counsel for applicant-appellant at this stage. In the light of above, therefore, no finding regarding the same can be returned by this Court. As such, the present application for suspension of sentence fails and is liable to be rejected.

8. It is, accordingly, rejected.

Order Date :- 9.5.2024

Imtiyaz