Sudagar Mal vs State & Anr
2022 Latest Caselaw 733 j&K

                                                                         Sr.No.188

               HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                             AT JAMMU

                                                     CrlM No. 150/2021 in
                                                     CRA No. 27/2017
                                                     Reserved on: 05.05.2022
                                                     Pronounced on: 07.05.2022

Sudagar Mal                                                     ....Applicant/Appellant(s)

                   Through :- Mr. Jagpaal Singh, Advocate

        V/s

State & Anr.                                                           ....Respondent(s)


                  Through :-      Mr. Dewakar Sharma, Dy AG
Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE

                                     ORDER

07.05.2022

CrlM No. 150/2021

1. The applicant/appellant has preferred the present application for suspension of sentence, pending appeal and for release on bail.

2. Learned counsel for the applicant/appellant submits that the applicant/appellant has already undergone half of the imprisonment i.e. about five (5) years of imprisonment. He further submits that the appeal is pending since 2017 and hearing the appeal will take its due time, therefore, he seeks suspension of sentence awarded to him as he has already undergone more than five years of the sentence.

3. The applicant was arrested in FIR No. 72/2016 for the commission of offences punishable under Sections 8/20 of Narcotic Drugs and Psychotropic Substances, Act, 1985 and vide judgment dated 28.10.2017 passed by the learned Sessions Judge, Kathua, he was convicted and sentenced to undergo rigorous imprisonment for ten (10) years and fine of Rs. 1.00 lac for the commission of offence u/s 20(b)(ii) (C) of NDPS Act.

4. The respondents have filed objections wherein it is stated that the applicant/accused is one of the accused in FIR No. 72/2016 for the commission of offence punishable under Sections 8/20 of NDPS Act, registered at Police Station, Kathua. It is further stated that the Court

below has established that the applicant has committed the offence of NDPS as he was found in possession of Cannabis (Charas) weighing 1250 grms; that the offence for which the accused is charged is of heinous nature; that there is every likelihood of accused misusing the liberty if granted bail and may jump over the bail having regard to all the circumstances, including the gravity of the nature of offence; that the present application is bereft of any merit as such the same is liable to be dismissed.

5. Sh. Jagpaul Singh, learned counsel for appellant/convict to support the case of appellant/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 appellant/convict on bail should be considered liberally unless there is any statutory restriction. 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.

6. Sh. Dewakar Sharma, learned Dy AG Per Contra, has strenuously articulated arguments, that the learned trial court has rightly convicted the accused as he has committed a very heinous offence punishable under sections 8/20 of Narcotic Drugs and Psychotropic Substances, Act, 1985.

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.

In Mossa Koya KP vs. State (NCT of Delhi) Criminal Appeal No.1562 of 2021 decided on December 06, 2021 wherein it was held that if the appeal is pending in the High Court and convict is already undergone 08 years of actual sentence, the applicant should be considered for bail.

8. Keeping in view the fact that the applicant is in custody for the last more than five years of the total sentence imposed, there is no immediate prospect of the appeal 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 appellant/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 appellant/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, Kathua where the appellant/convict is presently serving the sentence term in judicial lockup. It is further ordered, that the appellant/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 appeal on 19.07.2022.

(Mohan Lal) Judge

Jammu:

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