Ashish Rajput vs Ut Of J&K Through
2022 Latest Caselaw 1467 j&K

                                                                            Sr.No.172

              HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                            AT JAMMU

                                                       CrlM No. 2245/2021 in
                                                       Crl A(S) No. 19/2021

                                                       Reserved on: 12.10.2022
                                                       Pronounced on: 18.10.2022


Ashish Rajput                                                    ....Petitioner/Appellant(s)

                   Through :- Mr. P. S. Pawar, Advocate

        V/s

UT of J&K through                                                         ....Respondent(s)
Additional Public Prosecutor
High Court of J&K and Ladakh,
                  Through :-      Mr. Sumeet Bhatia, GA
Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE

                                      ORDER

18.10.2022

CrlM No. 2245/2021

1. Instant Criminal Appeal is directed against judgment of conviction dated 27.09.2021 and order of sentence dated 30.09.2021 rendered by the Court of Principal Sessions Judge, Udhampur by virtue of which the appellant was held guilty for the commission of offence punishable under Sections 376,363,342 of Ranbir Penal Code (for short „the RPC), arising out of the FIR No.113/2015, registered at Police Station, Udhampur, and was sentenced to undergo rigorous imprisonment for a period of eight years and also fine in the sum of Rs.50,000/- for the offence u/s 376 RPC, rigorous imprisonment of three years and fine of Rs. 25,000/- for offence u/s 363 RPC and rigorous imprisonment of six months and fine of Rs. 10,000/- and in default of payment of fine, the appellant shall further undergo imprisonment for a period of one year.

2. Feeling aggrieved of the impugned judgment of conviction, appellant/convict has assailed its correctness, propriety and legality on the grounds, that as a result of miss-appreciation of facts and misapplication of law so far as the finding of the trial court relating to holding appellant guilty of having committing of offence under Sections 376,363,342 RPC and convicting him of the same is bad in the eyes of law, therefore, prayed that the present appeal be allowed and the judgment of learned Principal Sessions Judge, Udhampur be set aside.

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3. Alongwith the appeal, appellant/convict has filed application for suspension of conviction and sentence pending the hearing of appeal, with further prayer for ordering his release on bail primarily on the ground that there is no likelihood of the appeal being heard in the near future, and in view of the law laid down by the Supreme Court wherein it has been held that when a convicted person is sentenced to a fixed period of sentence, on filing of appeal, suspension of sentence should be considered liberally unless there are exceptional circumstances. It is further submitted that in case the conviction imposed upon the appellant is not suspended immediately, the appellant would suffer huge loss and injury which cannot be compensated later on, as such, the appellant seeks kind indulgence of this Court for suspending the sentence imposed upon the appellant, till the disposal of the criminal appeal filed by the appellant.

4. Learned counsel for the respondent has opposed the application for suspension of sentence filed by the appellant/accused namely Ashish Rajput on the grounds, that appellant/accused has held guilty for commission of offence punishable under Sections 376/363/342 of RPC and cannot now be allowed to take refuge in amendment of provisions of law and plead incarceration of the sentence in order to flee from the course of justice, as such, instant petition does not merit consideration and needs outright rejection.

5. Sh. P. S. Pawar, learned counsel for appellant/accused to support the case of appellant/accused 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/accused 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 and prays that in case the conviction imposed upon the appellant is not suspended immediately the appellant would suffer huge loss and injury which cannot be compensated later on, as such, he seeks kind indulgence of this Court in granting him bail till disposal of the appeal.

6. Sh. Sumeet Bhatia, learned GA, Per Contra, while opposing the application has strenuously articulated arguments that the appellant is the main accused in case FIR No.113/2015 of Police Station, Udhampur for the commission of offences

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punishable under Sections 376,363,342 of RPC and it has been established by the court below that appellant/accused has been convicted after full trial. It is argued that the liberty of the individual is precious and is to be zealously guarded by the Court, however, such a protection cannot be absolute in every situation; that the interest of the society and liberty of the individual has to be balanced; that in the case in hand is a fit one where collective interest of the community outweighs the right of the personal liberty of the appellant and granting of the bail impede not only the administration of justice but also is going to injure the public interest rather than to serve it, therefore, appellant/accused is not entitled to bail and suspension of sentence.

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

Crl A(S) No.19/2021

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 V/s State Through Advocate General, a Coordinate Bench of this 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.

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8. In the case in hand, appellant/applicant has been found guilty by the trial court of learned Principal Sessions Judge Udhampur vide impugned judgments dated 27.09.2021 and 30.09.2021 for commission of offences punishable under Sections 376,363,342 of RPC and sentenced to undergo rigorous imprisonment for a period of eight years and also fine in the sum of Rs.50,000/-for the offence u/s 376 RPC, rigorous imprisonment of three years and fine of Rs. 25,000/- for offence u/s 363 RPC and rigorous imprisonment of six months and fine of Rs. 10,000/- and in default of payment of fine, the appellant shall further undergo imprisonment for a period of one year. Vide ratio‟s of the judgments of Bhagwan Ram Shinde Gosai‟s and others case (1999) 4 Supreme Court Cases 421 (Supra), and Vajida Bano‟s and others case rendered in Crl A(S) No. 05/2019 CrlM No. 853/2019, there is no statutory restriction/prohibition in not considering the application for suspension and releasing of appellant/convict on bail. Appellant/convict is the resident of Shiv Nagar, Tehsil and District Udhampur has deep roots in the society and do not possess the golden wings to flee from justice, as nothing substantial has been brought before the notice of this court that appellant/convict has absconded during trial. The seriousness or gravity of offence is to be seen in cases where accused/convict is punished with death penalty, life imprisonment or imprisonment of 10 years and above, wherein, while considering the application for suspension and bail the judicial description lies in the wisdom of the court. Right to life and liberty of an individual is precious under Article 21 of the Constitution of India and is also a very valuable right of accused/convict which also continues during the appeal period as appeal is the continuation of the trial.

9. Keeping in view the facts that the applicant/appellant as per nominal roll submitted by Superintendent Central Jail, Kot Bhalwal, Jammu has remained in jail for two years and three months out of the total sentence of eight years and there is no immediate prospect of the main appeal being heard in near future, a strong case for suspension of sentence and grant of bail has been made out by the appellant/convict.

10. As a sequel to the aforesaid discussion, I, therefore, suspend the sentence inflicted upon the applicant/appellant Ashish Rajput S/o Rajinder Singh R/o Shiv Nagar, Tehsil & District Udhampur 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 Central Jail, Kot Bhalwal,

Crl A(S) No.19/2021

Jammu where the applicant/appellant is presently serving the sentence term in judicial lockup. It is further ordered, that the applicant/appellant shall appear before this court on each and every date of hearing except for the reasons beyond his control and unless exempted.

11. Application is disposed of.

12. Crl A(S) No. 19/2021 is taken on board.

13. Admit.

14. Call for the original record from the trial Court.

15. List for arguments on 28.10.2022.

(Mohan Lal) Judge

Jammu:

18.10.2022 Vijay

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