Sajjad Hussain Shah vs Ut Of J&K
2022 Latest Caselaw 732 j&K

                                                                 Sr.No. 189

              HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                            AT JAMMU

                                                Crl R No. 14/2022
                                                CrlM Nos. 556 & 558/2022

                                                Reserved on: 25.04.2022
                                                Pronounced on: 07.05.2022

Sajjad Hussain Shah                                     ....Applicant/Appellant(s)

                  Through :- Mr. M. A. Bhat, Advocate

        V/s

UT of J&K                                                       ....Respondent(s)


                 Through :-   None
Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE

                                  ORDER

07.05.2022

CrlM No. 556/2022

1. The instant revision petition under Sections 435 & 439 of Criminal Procedure Code is directed against judgment of learned Principal Sessions Judge, Poonch passed in case No.01/Appeal titled Sajjad Hussain Shah vs State whereby he has upheld the judgment of conviction and sentence passed by the learned District Mobile Magistrate, Poonch dated 18.04.2016 and further revision against the judgment of Conviction and Sentence passed by the learned District Mobile Magistrate, Poonch dated 18.04.2016 in case titled State vs Sajjad Ahmed arising out of FIR No. 35/2008 of Police Station Mandi for the commission of offences under Sections 279/304-A RPC & 158/177 M.V.Act by virtue of which the accused/applicant has been sentenced to imprisonment of 6months for the commission of offence u/s 279 RPC, two years imprisonment with fine of Rs. 5000/- for commission of offence u/s 304-A and fine of Rs. 100/- for commission of offences u/s 158/177 of M.V.Act holding further in the judgment that in case of default of payment of fine, he shall further undergo imprisonment of nine weeks.

2. Feeling aggrieved of the impugned judgment of conviction, the appellant has assailed it's correctness, propriety and legality on the grounds that as a result of mis-appreciation of facts and misapplication of law so far as the finding of the trial court relating to holding applicant/appellant guilty of having committing of offence under Sections 279/304-A RPC & 158/177 M.V.Act and convicting him of the same is bad in the eyes of law; that the trial court has held that offences under Section 279/304-A RPC & 158/177 M.V.Act have been proved against applicant/appellant by prosecution but the trial court suddenly from nowhere held in last paragraph of the judgment that appellant is held guilty under Sections 279/304-A RPC & 158/177 M.V.Act and the conviction has been rendered. It is, therefore, prayed that the present revision petition be allowed and set aside the judgment of learned Principal Sessions Judge, Poonch as well as the judgment of learned District Mobile Magistrate, Poonch.

3. Along with the revision petition, appellant/convict has filed an application under Section 426/389 Cr.P.C for suspension of conviction and sentence pending the hearing of appeal with further prayer for ordering his release on bail.

4. Learned counsel for the applicant/convict submits that the applicant/convict has already undergone one month of the imprisonment. He further submits that the conviction and sentence of the applicant/convict is required to be suspended/admitted to bail in view of the fact that main revision petition may take some time for hearing and that the applicant/convict is suffering from various serious ailments including Gynecomastia disease in both left and right breasts with Auxillary Benigh Lymph Nodes, Lumber Spondylosis and grade-II fatty liver, therefore, applicant/convict seeks suspension of sentence awarded to him for the commission of offences under Sections 279/304-A RPC & 158/177 M.V.Act vide judgment dated 18.04.2016 passed by the learned District Mobile Magistrate, Poonch and also seeks set aside the judgment dated 06.04.2022 whereby the learned Principal Sessions Judge, Poonch has upheld the judgment of Conviction and Sentence passed by the learned District Mobile Magistrate, Poonch dated 18.04.2016.

5. Respondent has not filed objections in the application seeking suspension of sentence and bail despite the fact that opportunities were afforded to him.

6. Sh. M. A. Bhat, learned counsel for applicant/convict to support the case of applicant/convict for suspension of his sentence of conviction and his released on bail, has strenuously argued, that the prayer for suspension of sentence of conviction and ordering of the applicant/convict on bail should be considered liberally unless there is any statutory restriction. It is argued that the conviction and sentence of the applicant/convict is required to be suspended/admitted to bail in view of the fact that the applicant/convict is suffering from various serious ailments including Gynecomastia disease in both left and right breasts with Auxillary Benigh Lymph Nodes, Lumber Spondylosis and grade-II fatty liver. It is argued, that when the sentence is of life imprisonment, the consideration for suspension of sentence should be of different approach, and when the appellate court finds that due to practical reasons, the appeal could not be disposed of expeditiously, the appellate court must bestow special concern in the matter of suspending the sentence so as to make the appeal right, meaningful and effective, but if for any reason the sentence of limited duration cannot be suspended, every endeavor should be made to dispose of the appeal on merits. It is further argued, that by the judgment and order of this court passed in "Vajida Bano and ors v/s State in CrlA (S) No. 05/2019, CrlM No. 853/2019" it is manifest, that even the sentence of ten (10) years rigorous imprisonment was suspended against the accused persons who were found guilty for commission of offences u/ss 364/120-B/201 RPC.

7. Heard & considered. Section 389 of Code of Criminal Procedure deals with the provisions of suspension of sentence pending the appeal. For the sake of convenience Sec. 389 Cr.PC is reproduced hereunder:-

389. Suspension of sentence pending the appeal; release of appellant on bail.--(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond:

[Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.] (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of Appellate Court under Sub-Section(1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

Cursory glance of Section 389 Cr.PC makes the legal proposition abundantly clear, that pending an appeal preferred by a convicted person notice shall only be issued to the Public Prosecutor/State in case the convict is punished for offences punishable with death or imprisonment for life or imprisonment for a term not less than ten (10) years, which clearly connote that if the convict is punished with imprisonment for a term less than 10 years no notice is required to be given to the Public Prosecutor/State in regard to the application filed by the convict/accused for suspension of his sentence and his release on bail.

In the case of BHAGWAN RAMA SHINDE GOSAI AND OTHERS Versus STATE OF GUJARAT [(1999) 4 Supreme Court Cases 421], Hon'ble Supreme Court while discussing the power and scope of section 389 Cr.PC regarding suspension of sentence pending the appeal filed by the convict, and while holding that the prayer for suspension of sentence should be considered liberally unless there is any

statutory restriction, and while suspending the sentence and directing appellant/accused/convict to be released on bail found guilty for commission of offences u/ss 392 r/w 397 IPC for rigorous imprisonment of 10 years by the trail court, in paras 3&4 of the judgment held as under:-

3. When a convicted person is sentenced to fixed period of sentence and when he files appeals under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when motion for expeditious hearing the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence. So as to make the appeal right meaningful and effective. Of course appellate courts can impose similar conditions when bail is granted.

4. In this case as the High Court was not inclined to hear the appeal expeditiously we are of the view that the sentence passed on appellants can be suspended on some stringent conditions. We, therefore, suspend the sentence and direct the appellants to be released on bail on each of them executing a bond to the satisfaction of Additional Sessions Judge, Nadiad. We direct the appellants to report to Kapadwang Police Station on all Mondays and Thursdays between 4.00p.m. and 6.00 p.m. until disposal of the appeal pending before the High Court.

Ratio of the judgment (Supra) makes it manifest, that Section 389 Cr.PC does not contain any "statutory restriction" in suspension of sentence and granting of bail to the accused/convict and the prayer should be considered liberally and the Appellate Court may impose restrictions considering the gravity of offence.

Similarly, in the case of Vajida Bano and Ors--Petitioner(S) V/s State Through Advocate General--Respondent(S) [His Lordships, Hon‟ble Mr. Justice Ali Mohd Magrey of J&K High Court] while relying upon the judgment of BHAGWAN RAMA SHINDE GOSAI‟S (Supra) suspended the sentence of appellant/convicts, convicted and sentenced in

FIR 09/2014 for commission of offences u/ss 363/317/ 302/ 120-B & 201 RPC of P/S Kargil.

8. Keeping in view the fact that the applicant/convict is in custody since 06.04.2022 i.e more than one month of the total sentence imposed, he is suffering from various serious ailments and there is no immediate prospect of the main revision petition being heard in near future, a fit and proper case for suspension of sentence is made out.

9. As a sequel to the aforesaid discussion, I am of the considered opinion, that applicant/convict has made out a strong case for suspension of sentence and grant of bail in his favour. I, therefore, suspend the sentence inflicted upon the applicant/convict and direct him to be released on bail by executing surety bond in the sum of Rs. 50000/- to the satisfaction of Registrar Judicial of this court with the direction to furnish personal recognizance of like amount before Superintendent District Jail, Poonch where the applicant/convict is presently serving the sentence term in judicial lockup. It is further ordered, that the applicant/convict shall appear before this court on each and every date of hearing except for the reasons beyond his control.

10. Application is disposed of.

11. List the main revision petition on 18.07.2022.

(Mohan Lal) Judge

Jammu:

07.05.2022 Vijay Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No