Jammu & Kashmir High Court
Krishan Paul Singh vs Ut Of J&K on 21 October, 2022
Sr.No. 172
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
CrlM No. 242/2020 in
Crl A(S) No. 4/2020
Reserved on: 17.10.2022
Pronounced on: 21.10.2022
Krishan Paul Singh ....Petitioner/Appellant(s)
Through :- Mr. S. M. Wajahat, Advocate
V/s
UT of J&K ....Respondent(s)
Through :- Mr. Suraj Singh, GA
Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
ORDER
21.10.2022
CrlM No. 242/2020
1. Instant Criminal Appeal is directed against judgment of conviction dated
04.02.2020 and order of sentence dated 05.02.2020 rendered by the Court of
Principal Sessions Judge, Reasi by virtue of which the appellant was held guilty
for the commission of offence punishable under Section 376 of the Ranbir Penal
Code (for short „the RPC‟), arising out of the FIR No.45/2014, registered at
Police Station Arnas, and was sentenced to undergo rigorous imprisonment for a
period of eight (8) years and also fine in the sum of Rs.10,000/- and in default of
payment of fine, the appellant shall further undergo simple imprisonment for a
period of six months.
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 Section 376 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, Reasi be set aside.
3. Alongwith the appeal, appellant/convict has filed application for suspension of
conviction and sentence pending the hearing of appeal, with further prayer for
Crl A(S) No.4/2020
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 averred that the appellant is innocent and the case is based
upon conjectures bereft of any conclusiveness and as such due to the continuous
detention of the appellant in jail is not only harassment to the appellant, but due
to this the family of the appellant too would die of starvation. 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 Krishan Paul Singh on the
grounds, that appellant/accused has held guilty for commission of offence
punishable under Section 376 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. S. M. Wajahat, 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. It is further argued, that the appellant is
the only male earning member of his family, belongs to poor strata of the
society 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.
Crl A(S) No.4/2020
6. Sh. Suraj Singh, learned GA, Per Contra, while opposing the application has
strenuously articulated arguments, that the appellant is the main accused in case
FIR No.45/2014 of Police Station Arnas for the commission of offence
punishable under Section 376 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
Crl A(S) No.4/2020
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.
Crl A(S) No.4/2020
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.
8. In the case in hand, appellant/applicant has been found guilty by the trial court
of learned Principal Sessions Judge, Reasi for commission of offence
punishable under Section 376 RPC and sentenced to undergo rigorous
imprisonment for eight (8) years and also fine in the sum of Rs.10,000/. 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 CrlA (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
Village Thanpal Tehsil and District Reasi 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 four (4) years and four (4) 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 Krishan Paul Singh S/o Shatan Singh R/o
Thanpal Tehsil and District Reasi 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, Jammu where the
Crl A(S) No.4/2020
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. 4/2020 is taken on board.
13. Admit.
14. List for arguments on 23.11.2022.
(Mohan Lal)
Judge
Jammu:
21.10.2022
Vijay
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
