Calcutta High Court (Appellete Side)
Abdar Sk. @ Abder Sk. @ Md. Abdar Sk vs Unknown on 25 September, 2024
Author: Arijit Banerjee
Bench: Arijit Banerjee
1
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
CRA 506 of 2015
With
IA No: CRAN/1/2016 (Old No: CRAN/2914/2016)
In re: A petition for admission of appeal under Section 374(2)
of the Code of Criminal Procedure, 1973.
-And-
In the matter of: Abdar Sk. @ Abder Sk. @ Md. Abdar Sk.
...applicant/appellant.
Before: The Hon'ble Justice Arijit Banerjee
The Hon'ble Justice Apurba Sinha Ray
For the applicant / : Mr. Fazlur Rahman, Adv.
appellant Md. Babul Hussain, Adv.
Ms. Dona Sanyal, Adv.
For the State : Mr. Madhusudan Sur, Ld. APP.
Mr. Manoranjan Mahata, Adv.
CAV On : 19.09.2024
Judgment On : 25.09.2024
Arijit Banerjee, J.: -
1.
This is an application for suspension of sentence and grant of bail
pending disposal of the appeal filed by him against the judgment and order
of conviction and sentence dated 12.06.2015 and 15.06.2015 passed by the
learned Additional Sessions Judge, 2nd Court, Krishnagar, Nadia in Sessions
Trial Number VI (June) 2014, arising out of Sessions Case No. 7 (5) of 2014,
convicting the appellant of offence punishable under Section 302 of the
Indian Penal Code and sentencing him to suffer imprisonment for life and to
pay fine of Rs. 10,000/-, in default, to suffer rigorous imprisonment for 6
months. The petitioner has filed the present appeal against the order of
conviction and sentence. By an order dated 30.09.2015, a Coordinate
Bench, while admitting the appeal, stayed the realization of fine and granted
liberty to the petitioner to apply for bail upon notice to the State.
2. The appeal was filed on 06.08.2015. The appeal has not yet been
heard and disposed of. The appellant has filed this application for bail
pending disposal of the appeal.
3. The appellant has relied on the decision of the Hon'ble Supreme Court
in the case of Kashmira Singh v. State of Punjab reported at (1977) 4
SCC 291. In particular, learned Counsel for the appellant relied on the
observations of the Hon'ble Supreme Court in paragraph 2 of the reported
judgment which reads as follows:-
"2. 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."
4. Learned Counsel also relied on the decision of the Hon'ble Supreme
Court in the case of Saudan Singh v. State of U.P. reported at (2022)
SCC OnLine SC 697. Reference was also made to an order of the Hon'ble
Supreme Court in the case of Suleman v. State of Uttar Pradesh
reported at (2022) SCC OnLine SC 714 wherein in the context of the
Allahabad High Court denying bail to the appellant in a criminal appeal in
spite of the appellant having been in custody for 12 years during the
pendency of the appeal, the Hon'ble Supreme Court observed that bail
should have been granted for the asking.
5. Learned Advocate submitted that the appellant/petitioner was on bail
during the trial. He was taken into custody upon being convicted and
sentenced. He never misused the privilege of bail.
6. Learned Advocate for the State, argued that there is strong evidence
against the appellant. His conviction is fully justified. However, in his
fairness, learned Counsel left the matter of grant of bail, to the discretion of
the Court.
7. We have given our anxious consideration to the rival contentions of
the parties. Presently, we are not on the merits of the case. We are
considering whether or not to grant bail to the petitioner pending disposal of
the appeal in view of the appeal being pending for more than 9 years and the
petitioner being incarcerated for the entire period.
8. Considering the principle laid down by the Hon'ble Supreme Court in
Kashmira Singh (supra), which has been followed consistently by all the
Courts, and in view of the fact that there seems to be little possibility of the
appeal being disposed of on an early date, we are inclined to enlarge the
petitioner on bail. We also have in mind that the petitioner enjoyed the
liberty of bail throughout the trial and he never misused that privilege.
9. Accordingly the appellant may find bail of Rs. 10,000/- with one
surety of like amount subject to satisfaction of the learned Chief Judicial
Magistrate, Krishnagar, Nadia. The accused shall remain within the District
of Nadia and shall not leave that district without the leave of this Court. He
shall furnish the address where he shall be presently residing to the I.C.
Krishnagar Police Station. He shall meet the I.C. Krishnagar P.S. once in a
month until further order and shall appear before this Court on each and
every date of hearing of the appeal without fail. If the appellant breaches any
of the above conditions, this order of bail will be liable to be cancelled.
10. The operation of the impugned judgment of conviction and sentence is
stayed until further order.
11. The application being CRAN 1 of 2016 (Old No: CRAN 2914 of 2016)
is, thus, disposed of.
12. Urgent certified website copies of this judgment, if applied for, be
supplied to the parties subject to compliance with all the requisite
formalities.
I agree.
(ARIJIT BANERJEE, J.)
(APURBA SINHA RAY, J.)
