Delhi High Court
Salman Ansari vs State (Nct) Of Delhi & Anr. on 24 August, 2023
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on : 2nd August, 2023
Judgment Delivered on: 24th August, 2023
+ CRL.A. 58/2021
SALMAN ANSARI ..... Appellant
Through: Mr.Pramod Kumar Dubey, Senior
Advocate, Ms.Neeha Nagpal,
Mr.Vishvendra Tomar, Mr.Akshat
Sharma, Ms.Aditi, Mr.Satyam
Sharma and Ms.Pallavi Garg,
Advocates.
versus
STATE (NCT) OF DELHI ..... Respondent
Through: Mr.Pradeep Gahalot, APP for the
State.
SI Ritu, PS KWK Marg.
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
JUDGMENT
CRL.M.(BAIL) 711/2023 (for suspension of sentence)
1. By way of the present application, the appellant seeks regular
suspension of sentence during the pendency of the appeal filed by the
appellant against the judgment of conviction dated 18th February, 2020, and
the order on sentence dated 3rd September, 2020, passed by the learned ASJ
(POCSO), Rohini Courts (North), New Delhi in SC Case No.385/2017
under Sections 376(2)(f) and 376(2)(i) of the Indian Penal Code, 1860 (IPC)
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Digitally Signed By:DINESH
KUMAR
Signing Date:24.08.2023
and Section 6 of the Protection of Children from Sexual Offences Act, 2012
(POCSO Act).
2. Vide judgment dated 18th February, 2020, the appellant was convicted
for the offences under Sections 376(2)(f) and 376(2)(i) of the IPC and
Section 6 of the POCSO Act and vide order on sentence dated 3rd
September, 2020, the appellant was sentenced to undergo twelve years
rigorous imprisonment and pay a combined fine of Rs.15,000/-.
3. Senior counsel appearing on behalf of the appellant submits that the
appellant has undergone 50% of the total sentence awarded to him and
therefore, he is entitled to suspension of sentence. In this regard, reliance has
been placed on the following judgments:-
(i) Satender Kumar Antil v. Central Bureau of Investigation, (2022)
SCC OnLine SC 825;
(ii) Vijay Madanlal Choudhary v. Union of India, (2022) SCC OnLine
SC 929.
4. Additionally, the senior counsel appearing on behalf of the appellant
states that the appellant was granted interim bail on multiple occasions and
has complied with the bail conditions and surrendered on time.
5. The learned APP appearing on behalf of the State submits that the
appellant has been convicted of a serious offence under Section 6 of the
POCSO Act and has been awarded a sentence of 12 years. It is stated that
having undergone 50% of the sentence, by itself, cannot be a ground to grant
suspension of sentence. It is further stated that none of the judgments cited
on behalf of the appellant lay down an absolute proposition of law that in all
offences the appellant has to be released upon completion of 50% of the
sentence. Reliance is placed on the judgment of the Supreme Court in
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Digitally Signed By:DINESH
KUMAR
Signing Date:24.08.2023
Omprakash Sahni v. Jai Shankar Chaudhary, (2023) 6 SCC 123.
6. After hearing the counsels for the parties, the judgment was reserved
on 2nd August, 2023, and the counsels have filed written submissions along
with judgments in support.
7. I have heard the counsels for the parties and perused the material on
record.
8. In Satender Kumar Antil (supra), it has been held as under:-
"55. Section 389 of the Code concerns itself with
circumstances pending appeal leading to the release of the
appellant on bail. The power exercisable under Section 389 is
different from that of the one either under Section 437 or under
Section 439 of the Code, pending trial. This is for the reason
that "presumption of innocence" and "bail is the rule and jail
is the exception" may not be available to the appellant who has
suffered a conviction. A mere pendency of an appeal per se
would not be a factor.
56. 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 436-A 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.
57. Thus, we hold that the delay in taking up the main appeal
or revision coupled with the benefit conferred under Section
436-A of the Code among other factors ought to be considered
for a favourable release on bail.
9. A perusal of the aforesaid paragraphs demonstrates that delay in
taking up the main appeal for hearing would be one of the factors for
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Digitally Signed By:DINESH
KUMAR
Signing Date:24.08.2023
granting suspension of sentence. However, the Court would have to see
other relevant factors for granting suspension of sentence. The aforesaid
judgment does not lay down that in all cases where there is a delay in
hearing of the main appeal, the appellant should be granted suspension of
sentence on completion of 50% of the sentence.
10. Senior counsel appearing on behalf of the appellant submits that the
observations made in paragraph 86 in Satender Kumar Antil (supra), would
be applicable in cases under the POCSO Act. The paragraph 86 of the
judgment is set out below:-
"86. Now we shall come to Category C. We do not wish to
deal with individual enactments as each special Act has got an
objective behind it, followed by the rigour imposed. The general
principle governing delay would apply to these categories also.
To make it clear, the provision contained in Section 436-A of
the Code would apply to the Special Acts also in the absence of
any specific provision. For example, the rigour as provided
under Section 37 of the NDPS Act would not come in the way in
such a case as we are dealing with the liberty of a person. We
do feel that more the rigour, the quicker the adjudication ought
to be. After all, in these types of cases number of witnesses
would be very less and there may not be any justification for
prolonging the trial. Perhaps there is a need to comply with the
directions of this Court to expedite the process and also a
stricter compliance of Section 309 of the Code."
11. The mandate of the aforesaid paragraph in Satender Kumar Antil
(supra) is that the cases/appeals falling in 'Category C' offences should be
decided on an expedited basis, as in the aforesaid cases there are provisions
in the Acts relating to the said offences restricting grant of bail to the
accused persons.
12. The reliance placed by the appellant on the judgment in Vijay
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Digitally Signed By:DINESH
KUMAR
Signing Date:24.08.2023
Madanlal Choudhary (supra) is misplaced as the said judgment does not lay
down the proposition that an appellant is entitled to automatic suspension of
sentence upon completion of 50% of the awarded sentence.
13. In Omprakash Sahni (supra), relied upon by the State, it has been
held as under:-
"33. Bearing in mind the aforesaid principles of law, the
endeavour on the part of the court, therefore, should be to see
as to whether the case presented by the prosecution and
accepted by the trial court can be said to be a case in which,
ultimately the convict stands for fair chances of acquittal. If
the answer to the abovesaid question is to be in the affirmative,
as a necessary corollary, we shall have to say that, if ultimately
the convict appears to be entitled to have an acquittal at the
hands of this Court, he should not be kept behind the bars for a
pretty long time till the conclusion of the appeal, which usually
takes very long for decision and disposal. However, while
undertaking the exercise to ascertain whether the convict has
fair chances of acquittal, what is to be looked into is
something palpable. To put it in other words, something
which is very apparent or gross on the face of the record, on
the basis of which, the court can arrive at a prima facie
satisfaction that the conviction may not be sustainable. The
appellate court should not reappreciate the evidence at the
stage of Section 389 CrPC and try to pick up a few lacunae or
loopholes here or there in the case of the prosecution. Such
would not be a correct approach."
14. From a reading of the passage above, it emerges that the Appellate
Court has to assess whether the appellant has a fair chance of acquittal
before granting suspension of sentence. In other words, the Appellate Court
has to arrive at a prima facie satisfaction that the conviction may not be
sustainable.
15. In my opinion, completion of 50% of the sentence is surely one of the
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Digitally Signed By:DINESH
KUMAR
Signing Date:24.08.2023
factors to be borne in mind while considering suspension of sentence but it
cannot be said that it is the only factor to be considered. The Court
necessarily has to consider other aspects such as gravity of offence
committed, nature of crime, quantum of punishment and the likelihood of
the appellant succeeding in the appeal, before granting suspension of
sentence.
16. In the present case, the appeal was admitted on 5th February, 2021,
and directed to be listed in due course. Additionally, notice was issued on
the application seeking suspension of sentence. Subsequently, the appeal
was fixed for final hearing on 27th October, 2022. Since the Court was on
leave on the said date, the appeal was posted for hearing on 17th November,
2022. On the said date, at the request of the counsel for the appellant, the
appeal was listed for hearing on 10th April, 2023. On 10th April, 2023, the
appellant requested for an adjournment and the matter was adjourned to 22nd
May, 2023. On 10th May, 2023, the appellant filed a fresh application
seeking interim suspension of sentence, which was dismissed as withdrawn
with liberty and accordingly, the appeal was directed to be listed in the
category of 'Regular' matters and the earlier date of 22nd May, 2023, was
cancelled. The present application for suspension of sentence was moved on
18th May, 2023, and notice was issued for 14th July, 2023.
17. At the hearing on 2nd August, 2023, it was put to the senior counsel
appearing on behalf of the appellant that this Court will set the appeal for
hearing at a short date, which was not acceptable to the senior counsel. From
the aforesaid, it is apparent that the appellant does not wish to argue his
appeal on merits and only seeks suspension of sentence on the ground that
he has served 50% of the sentence.
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Digitally Signed By:DINESH
KUMAR
Signing Date:24.08.2023
18. It is pertinent to mention that, at the time of hearing, the senior
counsel appearing on behalf of the appellant did not address any arguments
on the merits of the matter and simply sought suspension on the ground of
the appellant having undergone 50% of the sentence. However, in the
written submissions filed on behalf of the appellant, submissions on merits
of the appeal have been made. Nevertheless, I have gone through the
evidence on record. The victim, PW1, in her testimony has supported the
case of the prosecution. She has identified the appellant, who was her dance
teacher in school, and stated that the appellant has inserted his finger in her
private parts. Therefore, no prima facie case is made out for suspension of
sentence.
19. In view of the discussions above, I am unable to accept the
submissions on behalf of the appellant that the appellant would be
automatically entitled to suspension of sentence upon having completed
50% of the sentence. It cannot be overlooked that in the present case, the
appellant has been convicted of an offence under Section 6 of the POCSO
Act, which provides punishment for 'aggravated penetrative sexual assault'
committed against a minor.
20. Considering the gravity of the offence, I do not deem it appropriate to
suspend the sentence of the appellant at this stage.
21. Needless to state that any observations made herein are purely for the
purposes of deciding the question of suspension of sentence and shall not be
construed as an expression on the merits of the case.
22. The application is dismissed.
CRL.A. 58/2021
23. Since the application for suspension of sentence has been dismissed, I
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Digitally Signed By:DINESH
KUMAR
Signing Date:24.08.2023
deem it proper to expedite the hearing of the appeal.
24. List the appeal for hearing on 31st October, 2023 at 3.30 PM.
AMIT BANSAL, J.
AUGUST 24, 2023
at
Signature Not Verified
Digitally Signed By:DINESH
KUMAR
Signing Date:24.08.2023
