Himachal Pradesh High Court
Dharma vs . State Of H.P. A/W Connected Matters on 30 September, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
Dharma Vs. State of H.P. a/w connected matters
a/w Cr. Appeals No. 64 & 65/2024
30.09.2024 Present: Mr. Rajul Chauhan, Advocate, for the
appellant(s) in all the appeals.
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.
Cr. MP No. 3558/2024 in Cr. Appeal No.
63/2024, Cr. MP No. 3556/2024 in Cr.
Appeal No. 64/2024 and Cr. MP No.
3557/2024 in Cr. Appeal No. 65/2024
By way of instant applications filed under
Section 430 of Bharatiya Nagarik Suraksha Sanhita,
2023 (for short "BNSS"), the applicant(s)/appellant(s) are
seeking suspension of sentence.
2. The learned counsel for the
applicant(s)/appellant(s) contended that the applicant(s)
have already undergone the sentence of more than five
years, as against the total sentence of ten years. He
further contended that the appeals are likely to take
considerable time for the disposal, as such, the instant
applications may be allowed and the applicant(s), who
have already undergone more than half of the sentence,
be released on bail during the pendency of the instant
appeals.
...2...
3. On the other hand, learned Additional
Advocate General contended that the
applicant(s)/appellant(s) are not entitled to be released
on bail during the pendency of the present appeals, as
they have been convicted in a serious offence.
4. We have heard the learned counsel for the
applicant(s)/appellant(s) 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
...3...
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
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;"
... ... ... ... ... ...
7. The instant appeals are of the year 2024 and
the same are not likely to be decided in near future and
there is also nothing on record to suggest that the delay
in deciding the appeals is attributable to the
applicant(s)/appellant(s). Therefore, in view of the facts
and circumstances of the case, since the applicant(s)
have already undergone more than half of the maximum
sentence imposed upon them by the learned Trial Court
and keeping in view Section 479 of BNSS and also the
...4...
aforesaid judgment of the Hon'ble Supreme Court, the
substantive sentence imposed upon the applicant(s) by
the Trial Court, vide judgment of conviction and order of
sentence dated 16.01.2024/17.01.2024, passed by
learned Special Judge (II), District Shimla, H.P., shall
remain suspended, till final disposal of the appeals,
however, subject to the applicants' furnishing personal
bonds in the sum of Rs. 1,00,000/- (each) with two
sureties (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 appeals, the applicant(s)/appellant(s) will
surrender before the Court.
8. However, it is made clear that the
applicant(s) shall not indulge themselves in the same
crime and maintain good social behaviour, or else, this
order shall be liable to be cancelled.
...5...
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 cases and the same has
been given only for the purpose of deciding the present
applications. The applications stand disposed of.
[
( Tarlok Singh Chauhan )
Judge
( Sushil Kukreja )
Judge
30th September, 2024
(raman)
DN: C=IN, O=HIGH COURT OF HIMACHAL
VIRENDE
PRADESH, OU=HIGH COURT OF
HIMACHAL PRADESH SHIMLA, Phone=
3c5f9e29e91dda973d928ffd06d59832d2dd9
7b9e2898117bfa738990a0ea7ba,
R
PostalCode=171001, S=Himachal Pradesh,
SERIALNUMBER=
fed3018c26866cd3d598cb3749b3fb29d4abe
f4b84983689d027cb645c9bb134, CN=
VIRENDER BAHADUR
BAHADURReason: I am approving this document
Location:
Date: 2024.09.30 16:04:09+05'30'
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