Himachal Pradesh High Court
Tejender Bhadur & Anr. vs . State Of H.P. on 14 October, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
Tejender Bhadur & Anr. Vs. State of H.P.
14.10.2024 Present: Mr. Mukesh Sharma, Advocate, for the
appellants.
Mr. I.N. Mehta, Senior Additional Advocate
General with Mr. Navlesh Verma, Ms.
Sharmila Patial, Additional Advocates
General and Mr. Raj Negi, Deputy
Advocate General, for the respondent-
State.
By way of instant application filed under
Section 389(2) of Cr. P.C., the applicants/appellants are
seeking suspension of sentence.
2. The learned counsel for the
applicants/appellants contended that the applicants have
already undergone more than 1/3 rd of the sentence, as
against the total sentence of twelve years imposed upon
them by the learned Trial Court. He further contended
that the appeal is likely to take considerable time for its
disposal, as such, the instant application may be allowed
and the applicants, who have already undergone more
than 1/3rd of the sentence, be released on bail during the
pendency of the instant appeal.
3. On the other hand, learned Additional
Advocate General contended that the
applicants/appellants are not entitled to be released on
bail during the pendency of the present appeal, as they
have been convicted in a serious offence.
...2...
4. We have heard the learned counsel for the
applicants/appellants as well as learned Additional
Advocate General and have also gone through the
material available on record.
5. In Satender Kumar Antil vs. Central
Bureau of Investigation & another, (2022) 10 Supreme
Court Cases 51, after taking note of the provisions of
Section 436A, Cr.P.C., the Hon'ble Apex Court held as
under:-
"63. Section 436A of the Code has been inserted
by Act 25 of 2005. This provision has got a
laudable object behind it, particularly from the
point of view of granting bail. This provision
draws the maximum period for which an
undertrial prisoner can be detained. This period
has to be reckoned with the custody of the
accused during the investigation, inquiry and
trial. We have already explained that the word
'trial' will have to be given an expanded meaning
particularly when an appeal or admission is
pending. Thus, in a case where an appeal is
pending for a longer time, to bring it under
Section 436A, the period of incarceration in all
forms will have to be reckoned, and so also for
the revision.
64. Under this provision, when a person has undergone
detention for a period extending to one-half of the
maximum period of imprisonment specified for
that offense, he shall be released by the court on
his personal bond with or without sureties. The
word 'shall' clearly denotes the mandatory
compliance of this provision. We do feel that
there is not even a need for a bail application in a
case of this nature particularly when the reasons
for delay are not attributable against the accused.
We are also conscious of the fact that while
taking a decision the public prosecutor is to be
heard, and the court, if it is of the view that there
is a need for continued detention longer than
one-half of the said period, has to do so.
However, such an exercise of power is expected
to be undertaken sparingly being an exception to
the general rule. Once again, we have to reiterate
that 'bail is the rule and jail is an exception'
coupled with the principle governing the
presumption of innocence. We have no doubt in
our mind that this provision is a substantive one,
facilitating liberty, being the core intendment
...3...
of Article 21. The only caveat as furnished under
the Explanation being the delay in the proceeding
caused on account of the accused to be
excluded....."
6. Section 436-A of Cr.P.C. has now been
replaced by Section 479 of the BNSS, the relevant
portion whereof reads as under:-
"479. Maximum period for which undertrial
prisoner can be detained. - (1) Where a person
has, during the period of investigation, inquiry or
trial under this Sanhita of an offence under any
law (now being an offence for which the
punishment of death or life imprisonment has
been specified as one of the punishments under
that law) undergone detention for a period
extending up to one-half of the maximum period
of imprisonment specified for that offence under
law, he shall be released by the Court on bail;
Provided that where such person is a first-time
offender (who has never been convicted of any
offence in the past) he shall be released on bond
by the Court, if he has undergone detention for
the period extending up to one-third of the
maximum period of imprisonment specified for
such offence under that law:"
... ... ... ... ... ...
7. The instant appeal is of the year 2024 and
the same is not likely to be decided in near future and
there is also nothing on record to suggest that the delay
in deciding the appeal is attributable to the
applicants/appellants. Therefore, in view of the facts and
circumstances of the case, since the applicants have
already undergone more than 1/3 rd of the sentence, as
against the total sentence of twelve years imposed upon
them by the learned Trial Court and keeping in view
provisions of Section 479 of BNSS and also the
aforesaid judgment of the Hon'ble Supreme Court, the
...4...
substantive sentence imposed upon the applicants by
the Trial Court, vide judgment of conviction and order of
sentence, dated 18.12.2023, passed by learned Special
Judge-I, Kullu, District Kullu, H.P., shall remain
suspended, till final disposal of the appeal, however,
subject to the applicants' furnishing personal bond in the
sum of Rs. 1,00,000/- (each) with two local sureties of
District Kullu (each) in the like amount to the satisfaction
of learned Trial Court and also subject to the deposit of
the fine amount, if not already deposited. On furnishing
the requisite bail bonds and on depositing the fine
amount, they be released forthwith, if not required in any
other case, however, with the undertaking to appear
before this Court as and when directed and in the event
of the dismissal of the appeal, the applicants/appellants
will surrender before the Court.
8. However, it is made clear that the applicants
shall not indulge themselves in the same crime and
maintain good social behaviour, or else, this order shall
be liable to be cancelled.
9. Be it stated that any expression of opinion
given in this order does not mean an expression of
opinion on the merits of the case and the same has been
...5...
given only for the purpose of deciding the present
application. The application stands disposed of.
( Tarlok Singh Chauhan )
Judge
( Sushil Kukreja )
Judge
14th October, 2024
(raman)
DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=
VIRENDER HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=
3c5f9e29e91dda973d928ffd06d59832d2dd97b9e2898117bfa73
8990a0ea7ba, PostalCode=171001, S=Himachal Pradesh,
SERIALNUMBER=
fed3018c26866cd3d598cb3749b3fb29d4abef4b84983689d027c
BAHADUR
b645c9bb134, CN=VIRENDER BAHADUR
Reason: I am approving this document
Location:
Date: 2024.10.14 17:15:35+05'30'
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