Calcutta High Court (Appellete Side)
Sowali Shaw @ Sauli Shaw vs Unknown on 3 September, 2024
499
03-09-2024
(ct. no.28)
S. De
(Allowed)
CRA 721 of 2016
With
C.R.A.N. 3 of 2024
-And-
In the matter of : Sowali Shaw @ Sauli Shaw.
.... Appellant/Petitioner.
Mr. Rishikesh Sharma,
Mr. P.N. Sharma, ... For the Appellant/Petitioner.
Mr. Saryati Dutta,
Ms. Trisha Rakshit, ... For the State.
Order dictated by Arijit Banerjee, J.
1. This is an application for suspension of sentence and grant of
bail pending disposal of the appeal. The petitioner was
convicted by a judgment and order dated September 28, 2016.
By an order dated September 29, 2016, he was sentenced to
suffer rigorous imprisonment for 10 years and to pay fine of
Rs.1,00,000/- and in default, to suffer further rigorous
imprisonment for six months, for the offence committed by him
punishable under Section 21(c)/29 of the NDPS Act. It was
further directed that the period of detention already undergone
by the accused/convict during the stage of investigation/trial be
set off against the sentence of imprisonment under Section 428
of Cr.P.C.
2. The applicant preferred the present appeal against the said
judgment and order of conviction and sentence. During
pendency of the appeal, the applicant had approached this
Signed By :
SANDIP DE
High Court of
Calcutta
5 th of September
2024 06:46:18
PM
Court with an application for suspension of sentence being
CRAN 3769 of 2017. That application was dismissed by a co-
ordinate Bench by an order dated July 13, 2018.
3. Assailing the aforesaid order of dismissal, the applicant had
approached the Hon'ble Supreme Court by filing Special Leave
Petition (Criminal) Diary No. 14447 of 2024. The Hon'ble Court
disposed of the Special Leave Petition with the following
observations :
"The petitioner has filed this petition assailing the
order dated 13.07.2018 whereby the High Court had
declined to order suspension of sentence and grant
bail. Since there is long lapse of time, we do not
deem it appropriate to entertain this petition.
However, we reserve liberty to the petitioner to file a
fresh application before the High Court seeking
suspension of sentence if the appeal itself cannot be
heard.
The High Court shall expeditiously consider the said
application and dispose it of by taking into
consideration the time lapse presently and without
being influenced by any of the observations made in
the earlier order.
The special leave petition is disposed of with the said
liberty."
4. The applicant says that in all he has spent more than 9 years in
custody. His wife is in very bad condition, financially and
otherwise. His only son died some time ago when he was in
custody.
5. We find that the Hon'ble Supreme Court did grant liberty to the
present applicant to renew his prayer for bail in connection with
the appeal, in the event the appeal is not heard out. The appeal
has not been heard out till date. It is unlikely that the appeal
would be heard on an early date.
6. In this connection one may refer to the observations of the
Hon'ble Supreme Court in the celebrated case of Kashmira
Singh v. The State of Punjab reported at (1977) 4 SCC 291.
Paragraph 2 of the reported judgment reads as follows:-
"The appellant contends in this application
that pending the hearing of the appeal he
should be released on bail. Now, the practice
in this Court as also in many of the High
Courts has been not to release on bail a
person who has been sentenced to life
imprisonment for an offence under section 302
of the Indian penal Code. The question is
whether this practice should be departed from
and if so, in what circumstances. It is obvious
that no practice howsoever sanctified by
usage and hallowed by time can be allowed to
prevail if it operates to cause injustice. Every
practice of the Court must find its ultimate
justification in the interest of justice. The
practice not to release on bail a person who
has been sentenced to life imprisonment was
evolved in the High Courts and in this Court
on the basis that once a person has been
found guilty and sentenced to life
imprisonment, he should not be let loose, so
long as his conviction and sentence are not set
aside, but the underlying postulate of this
practice was that the appeal of such person
would be disposed of within a measurable
distance of time. So that if he is ultimately
found to be innocent, he would not have to
remain in jail for an unduly long period. The
rationale of this practice can have no
application where the Court is not in a position
to dispose of the appeal for five or six years. It
would indeed be a travesty of justice to keep a
person in jail for a period of five or six years
for an offence which is ultimately found not to
have been committed by him. Can the Court
ever compensate him for his incarceration
which is found to unjustified? Would it be just
at all for the Court to tell a person : "We have
admitted your appeal because we think you
have a prima facie case, but unfortunately we
have no time to hear your appeal for quite a
few years and, therefore, ,until we hear your
appeal, you must remain in jail, even though
you may be innocent?" What confidence would
such administration of justice inspire in the
mind of the public? It may quite conceivably
happen, and it has in fact happened in a few
cases in this Court, that a person may serve
out his full term of imprisonment before his
appeal is taken up for hearing. Would a judge
not be overwhelmed with a feeling of contrition
while acquitting such a person after hearing
the appeal? Would it not be an affront to his
sense of justice? Of what avail would the
acquittal be to such a person who has already
served out his term of imprisonment or at any
rate a major part of it? It is, therefore,
absolutely essential that the practice which
this Court has been following in the past must
be reconsidered and so long as this Court is
not in a position to hear the appeal of an
accused within a reasonable period of time,
the Court should ordinarily, unless there are
cogent grounds for acting otherwise, release
the accused on bail in cases where special
leave has been granted to the accused to
appeal against his conviction and- sentence."
7. In view of the aforesaid, we are inclined to allow this application.
8. Accordingly, we direct that the appellant, namely, Sowali Shaw
@ Sauli Shaw shall be released on bail upon furnishing a bond
of Rs.10,000/- (Rupees Ten Thousands only) with two sureties
of like amount each, one of whom must be local, to the
satisfaction of the learned Judge, Special Court (Under N.D.P.S.
Act), Cooch Behar and on further conditions that he shall not
leave the jurisdiction of the concerned police station and shall
report to the Officer-in-Charge of the concerned police station
once in a month until further orders.
9. In the event the petitioner fails to adhere to any of the conditions
stipulated above without justifiable cause, the trial court shall
be at liberty to cancel the petitioner's bail in accordance with
law without further reference to this court.
10. C.R.A.N. 3 of 2024 is, accordingly, disposed of.
11. All parties shall act in terms of server copy of the order
downloaded from the official website of this Court.
( Prasenjit Biswas, J. ) ( Arijit Banerjee, J. )
