Himachal Pradesh High Court

Umesh Bansal vs . State Of Himachal Pradesh on 25 July, 2024

Umesh Bansal Vs. State of Himachal Pradesh

Cr. MP No. 2134 of 2024 in Cr. Appeal No. 277 of 2024

Reserved on: 12.07.2024 Date of Decision: 25 .07.2024 25.07.2024 Present: Mr. Karan Kapoor, Advocate, for the applicant/ appellant.

Mr. Ajit Sharma, Deputy Advocate General, for non-applicant/State.

The applicant/appellant has filed the present

application for seeking suspension of the sentence imposed

upon him and releasing him on bail. It has been asserted

that the applicant/appellant was convicted of the

commission of offences punishable under Sections 342 and

506 of the Indian Penal Code (IPC) and Section 10 of the

Protection of Children from Sexual Offences (POCSO) Act. He

was sentenced as under: -

Sr. No. The offence Substantive Fine In default of for which Sentence imposed payment of convicted imposed fine, Simple imprisonment imposed

1. Section 10 of Rigorous ₹ 10,000/- One POCSO Act. Imprisonment year.

for five years

2. Section 342 Simple ₹ 1,000/- One IPC Imprisonment month.

for one year.

3. Section 506 Rigorous ₹ 10,000/- One IPC Imprisonment year.

for five years

2. The applicant has a very good case and his

appeal is likely to succeed in all probabilities. Hearing of the

appeal is likely to take some time. The applicant has been

behind the bars since 13.06.2021. He would suffer irreparable

loss if the sentence was not suspended. Hence, it was prayed

that the present application be allowed and the sentence

imposed upon the applicant be suspended during the

pendency of the proceedings.

3. The application is opposed by filing a reply taking

preliminary objections regarding lack of maintainability and

the offences committed by the applicant being heinous. It

was specifically denied that the applicant has a very good

case and his appeal is likely to succeed. It was asserted that

the learned Trial Court had passed a reasoned judgment.

Therefore, it was prayed that the present application be

dismissed.

4. I have heard Mr. Karan Kapoor, learned

counsel for the applicant/appellant and Mr. Ajit Sharma,

learned Deputy Advocate General, for the respondent/State.

5. Mr. Karan Kapoor, learned counsel for the

applicant/appellant submitted that the applicant has already

undergone imprisonment for three years, which is more

than half of the sentence. He filed an appeal in the year 2024

and his appeal is not likely to be heard soon. He is likely to

complete the period in jail for which he has been sentenced

and in case of acceptance of appeal, he would suffer

irreparable loss, which cannot be compensated in terms of

money. Therefore, he prayed that the present application be

allowed and the applicant be released on bail. He relied upon

the judgments of Atul @ Ashutosh Vs. State of Madhya Pradesh

in Cr. Appeal No. 579 of 2024 decided on 02.02.2024 and

Vishnubhai Ganpatbhai Patel & Anr. Vs. State of Gujarat in Cr.

Appeal No(s). 3415 of 2023 decided on 03.11.2023 in support of

his submission.

6. Mr. Ajit Sharma, learned Deputy Advocate

General, for the respondent/State submitted that the

applicant/appellant is involved in the commission of heinous

offences and should not be released on bail.

7. I have given considerable thought to the

submissions at the bar and have gone through the records

carefully.

8. The judgment of the learned Trial Court shows

that the applicant/appellant has been in custody since

13.06.2021. He had spent thirty-one months and twenty-

eight days on the date of pronouncement of the judgment.

The learned Trial Court sentenced him to undergo rigorous

imprisonment for five years and further ordered that all the

substantive sentences would run concurrently. It means that

the applicant will have to undergo five years or sixty months

out of which he has already undergone thirty-one months

and twenty-two days on the date of pronouncement of the

order. There is a force in the submission of Mr. Karan

Kapoor, learned counsel for the applicant that his appeal is

not likely to be heard, because appeals filed in the year 2022

are being listed for hearing. Thus, the appeal is not likely to

be heard before the expiry of the period of sentence. It was

laid down by the Hon'ble Supreme Court in Shivani Tyagi v.

State of U.P., 2024 SCC OnLine SC 842 that in case of fixed-

term sentence where the Court is unable to hear the appeal

before the completion of the period of sentence, the Court

should release the person on bail after suspending the

sentence. It was observed:

"3. Section 389 of the Code of Criminal Procedure (for short the "Cr. PC") deals with the suspension of execution of sentence pending the appeal against conviction and release of the appellant(s) on bail. The said provision mandates for recording of reasons in writing leading to the conclusion that the convicts are entitled to get suspension of sentence and consequential release on bail. The said requirement thus indicates the legislative intention that the appellate Court invoking the power under Section 389, Cr. P.C. should assess the matter objectively and that such assessment should reflect in the order.

4. We will briefly refer to some of the relevant decisions dealing with Section 389, Cr. P.C. In the case of short- term imprisonment for conviction of an offence,

.

suspension of sentence is the normal rule and its rejection

is the exception. (See the decision in Bhagwan Rama Shinde Gosai v. State of Gujarat (1999) 4 SCC 421). However, we are of the considered view that the position should be

vice-versa in the case of conviction for serious offences when the invocation of power under Section 389 is invited. This Court, in the decision in Kishori Lal v. Rupa (2004) 7 SCC 638, held in paragraphs 4 and 5 thus: --

"4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of

Section 389 is the requirement for the appellate Court to

record reasons in writing for ordering the suspension of execution of the sentence or order appealed against. If he is in confinement, the said Court can direct that he be released on bail or his own bond. The requirement of recording reasons

in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

5. The appellate Court is duty-bound to objectively assess the

matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have

weighed with the High Court for directing suspension of sentence and grant of bail is the absence of an allegation of misuse of liberty during the earlier period when the accused- respondents were on bail."

5. In the decision in Anwari Begum v. Sher Mohammad (2005) 7 SCC 326 this Court in paragraphs 7 and 8 held thus: --

"7. Even on a cursory perusal the High Court's order shows complete non-application of mind. Though a detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a Court dealing with the bail application should be satisfied as to whether there is a prima facie case, but an exhaustive exploration of the merits of the case is not necessary. The Court dealing

with the application for bail is required to exercise its discretion in a judicious manner and not as a matter of course.

.

8. There is a need to indicate in the order reasons for prima facie concluding why bail was being granted, particularly where an accused was charged of having

committed a serious offence. It is necessary for the Courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:

1. The nature of the accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

2. Reasonable apprehension of tampering with the rwitness or apprehension of threat to the complainant;

3. Prima facie satisfaction of the Court in support of the charge.

Any order dehors of such reasons suffers from non- application of mind as was noted by this Court in Ram

Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598, Puran v. Rambilas (2001) 6 SCC 338 and in Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7

SCC 528."

6. After referring to the aforesaid paragraphs in the

decisions in Kishori Las's case (supra) and Anwari Begum's case (supra), this Court in the decision in Khilari v. State of Uttar Pradesh (2009) 4 SCC

23 interfered with an order suspending the sentence and granting bail for non- application of mind and non-consideration of the relevant aspects."

9. This position was reiterated in Bheru Lal Vs.

State of M.P. SLPR 8388/2024 decided on 03.07.2024, wherein

it was held that in case of his sentence imposed for a fixed

term, the Appellate Court should consider the plea for

suspension of sentence liberally unless there are exceptional

circumstances justifying the denial of such relief.

10. In Atul @ Ashutosh (supra), wherein the

accused had undergone half of the sentence and his appeal

was not likely to be heard soon, it was held that his plea for

the suspension of the sentence should be favourably

considered. It was observed:

"2. Out of a fixed term sentence of five years, the

appellant-accused has already undergone half of the sentence. The appeal against conviction of the year 2022 is not likely to be reached before he completes the entire sentence. Hence, a case is made out for a grant of

suspension of sentence pending the appeal and grant of bail. For that purpose, the appellant shall be produced

before the trial court within one week from today.

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4. Before parting with the order, we must note here that

notwithstanding several decisions of this Court holding that when there is a fixed term sentence and especially when the appeal is not likely to be heard before

completing an entire period of sentence, normally suspension of sentence and bail should be granted, we

find that in several deserving cases, bail is being denied. Such cases should never be required to be brought before this Court.

11. A similar view was also taken in Vishnubhai

Ganpatphai Patel (supra).

12. In the present case, also the

applicant/appellant has undergone more than half of the

sentence awarded to him and his appeal is not likely to be

heard soon. Therefore, the present application is allowed

and the substantive imprisonment awarded by the learned

Trial Court is ordered to be suspended during the pendency

of the appeal subject to deposit of fine and furnishing of

personal and surety bonds in the sum of ₹25,000/- with

one surety in the like amount to the satisfaction of the

learned Trial Court, undertaking to appear before this