Jharkhand High Court
Dhudheshwar Nath Singh @ ... vs Union Of India Through ... on 8 April, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No.458 of 2019
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Dhudheshwar Nath Singh @ Dudheshwar Nath Singh
.... .... .... Appellant
Versus
Union of India through C.B.I./SPE/ Ranchi
.... .... Respondent
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CORAM : HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Appellant : Mr. Rajendra Krishna, Advocate
For the C.B.I. : Mr. B.K. Prasad, Adv.
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Order No.07 Dated- 08.04.2021
I.A. No.3896 of 2020 & I.A. No.6265 of 2020
I.A. No. 3896 of 2020 has been filed with prayer for suspension of
sentence and grant of bail to the appellant during the pendency of the instant
appeal and I.A. No.6265 of 2020 has been filed with prayer to allow the
interlocutory application No.3896 of 2020 filed for suspension of sentence and
grant of the bail to the appellant-petitioner.
2. It is submitted by learned counsel for the appellant that when this appeal
along with the bail application was placed before this court on 18.08.2020,
learned counsel for the appellant prayed for time and submitted that the
appellant is ready for final hearing of this appeal on merit and accordingly did
not press the prayer for bail pending hearing of the appeal and the prayer for
time was allowed but today the learned counsel for the appellant submits that
he has been instructed not to argue the appeal on merits and only to press the
interlocutory application for suspension of sentence and grant of bail to the
appellant-petitioner pending final hearing of appeal on merit. It is pertinent to
mention here that the matter was placed before the Hon'ble Supreme Court of
India in Writ Petition (s) (Criminal) No.(s) 419 of 2020, as the appellant
approached the Hon'ble Supreme Court of India invoking the jurisdiction of the
Hon'ble Supreme Court of India under Article 32 of Constitution of the India
seeking bail during the pendency of an appeal filed and pending before this
court. The Hon'ble Supreme Court of India dismissed the writ petition vide
order dated 12.03.2021 and observed that "it is open for the appellant-petitioner
to file an application for bail before an appropriate court and if the application
for bail has already been filed, the same shall be considered by the concerned
court on its own merit as early as possible but not later than the outer limit of
four weeks from the receipt of the copy of this order". It is further submitted
that the appellant has been convicted and sentenced to undergo separate
Rigorous Imprisonments for commission of offences punishable under various
penal provisions of law as follows:-
Name of Offence sentence
Convict Imprisonment Fine Default
Dhudheshwar Section- 5 years R.I. Rs.10 lacs 6 Months
Nath Singh 407 of R.I.
I.P.C
Section 5 years R.I. Rs.10 lacs 6 Months
420 IPC R.I.
Section- 5 years R.I. Rs.10 lacs 6 Months
467 of R.I.
IPC
Section 5 years R.I. Rs.10 lacs 6 Months
468 of R.I.
IPC
Section 2 years R.I. Rs.10 lacs 6 Months
471 IPC R.I.
Section 2 years R.I. Rs.10 lacs 6 Months
120B r/w R.I.
420, 407,
467, 468
and 471
IPC r/w
section
13(2) r/w
13(1) (d)
P.C. Act.
3. It is further submitted that this case is related to bitumen scam and the
appellant was a transporter and inter alia there is allegation against him of
misappropriating 3045.200 MT of bitumen amounting to approximate value of
Rs.1,52,26,000/-. It is next submitted that the appellant has been convicted as the
co-accused-Md. Illiyas Hussain being a Minister of Road Construction
Department, Bihar and other accused persons being officials of Road
Construction Department, Bihar in connivance with the transporters including
the appellant-convict and amongst each other processed the files illegally for
empanelment of transporters and issued different supply orders for different
RCD Division including Chatra without considering the requirement and
storage capacity as well as availability of fund and they facilitated the
transporters by abusing their official position and thereby the transporters
committed misappropriation of huge amount of bitumen and caused loss to the
Government Exchequer and for this act of commission and omission, these
accused person received illegal gratification in cash and kind both, which has
been established by the oral and documentary evidence of the prosecution
through P.Ws, the documents and related files of Road Construction
Department, Bihar. It is then submitted that the trial court erred in convicting
the appellant and the appellant is a heart patient and 69 years old and suffering
from ENT problem and complaining chest pain and even he got admitted in jail
hospital for treatment as per the advice of doctors of Indira Gandhi Institute of
Cardiology, Patna. It is also submitted that the appellant has been convicted by
Special Judge C.B.I., Ranchi and consequent upon the same he was sent to
Hotwar Jail Ranchi but he has been transferred to Adarsh Central Jail, Beur at
Patna since 22.02.2019 as he is in custody in connection with other cases
involving inter alia the offences punishable under the various penal provisions
of Indian Penal Code and the Prevention of Corruption Act, 1988. It is further
submitted that the appellant has very good grounds to agitate in the appeal,
hence the sentence of the appellant-petitioner be suspended and the appellant-
petitioner be admitted to bail during the pendency of the appeal.
4. At this stage, Mr. Rajendra Krishna, learned counsel for the appellant
further on instructions submits that the appellant-petitioner is an under trial
prisoner in connection with R.C. Case No.06 of 1997 which is pending in the
court of Special Judge-II, C.B.I. Court, Patna but he is not having definite
information as to in connection with which other cases the appellant-convict has
been in custody.
5. Mr. B.K. Prasad, learned counsel for C.B.I. on the other hand vehemently
opposes the prayer for bail of the appellant and submits that the appellant did
not press the prayer for suspension of sentence on 18.08.2020 and rather become
ready for hearing of appeal but the very fact is that he is not getting ready for
hearing of the appeal and by engaging another lawyer, he has taken a U-turn
and the fact that the learned new counsel for the appellant submits that he has
instructions not to get ready for hearing of appeal, speaks volume to establish
the fact that there is no merit in this appeal. It is further submitted by the
learned counsel for the C.B.I. that there is every chance of the appellant
absconding, if released on bail. It is further submitted by Mr. B.K. Prasad,
learned counsel for the C.B.I. that the C.B.I. is ready for final hearing of the
appeal on merits on any day suitable to the appellant-petitioner. Hence, it is
submitted that the appellant ought not to be admitted to bail during the
pendency of this appeal.
6. Having heard the submissions made at the Bar, it is pertinent to mention
here that it is a settled principle of law that where the accused has been
convicted for the offences punishable under the penal provisions of Prevention
of Corruption Act,1988 it would not be prudent and desirable to give the
protection to the convict under Section 389 of the Code of Criminal Procedure as
has been reiterated by the Hon'ble Supreme Court of India in the case of Shiv
Kumar Vs. State of (NCT of Delhi), reported in (2008) 17 SCC 122, paragraph 7
of which reads as under:-
"7. This Court has observed in several cases that where the accused
in convicted for offence punishable under the Act, it would not be prudent
and desirable to give protection under Section 389 of "the Code". However,
taking into account the peculiar circumstances of the case we request the
High Court to dispose of the appeal as early as practicable."
It is pertinent to mention here that this Court can hear and dispose of this
appeal on merit on any date which is suitable to the appellant and it is also
relevant to mention here that this Court heard and disposed of all such appeals
under the roaster heading P.C. Act cases in which the appellants were ready for
final hearing of the appeal and even several appeals filed in the year 2020 have
already been finally disposed of. Hence, this appeal can also be disposed of as
and when the appellant gets ready for hearing the appeal on merits.
7. It is also settled principle of law that for granting of post-conviction bail to
the convict under Section 389 of the Code of Criminal Procedure, there has to be
strong and compelling reasons for grant of bail and such strong and compelling
reason must be recorded in the order granting bail as has been observed by the
Hon'ble Supreme Court of India in the case of Preet Pal Singh V. State of U.P.
and Anr. reported in (2020) 8 SCC 645, paragraph No.35 of which reads as
under:-
"35. Xxxxxxxx However, in case of post-conviction bail, by
suspension of operation of the sentence, there is a finding of guilt and the
question of presumption of innocence does not arise. Nor is the principle of
bail being the rule and jail an exception attracted, once there is conviction
upon trial. Rather, the court considering an application for suspension of
sentence and grant of bail, is to consider the prima facie merits of the
appeal, coupled with other factors. There should be strong compelling
reasons for grant of bail, notwithstanding an order of conviction, by
suspension of sentence, and this strong and compelling reason must be
recorded in the order granting bail, as mandated in Section 389(1) CrPC."
(Emphasis supplied)
8. So far as the order of granting of bail by the Hon'ble Supreme Court of
India to the co-accused-Ex-Minister Md. Ilyas Hussain @ Md. Illiyas in Cr.
Appeal No. 810 of 2020 arising out of Special Leave Petition (Cr.) No.5022 of
2020 is concerned, perusal of the said order reveals that in the said order, it has
been mentioned that an application under Section 389 of Code of Criminal
Procedure was filed by the co-convict- Md. Ilyas Hussain @ Md. Illiyas before
this court and the prayer in that behalf was rejected by this Court and out of
maximum imprisonment of 5 years, the said appellant-petitioner had
completed more than two years and five months of actual imprisonment and on
that account, the trial court was directed to release the co-accused- Md. Ilyas
Hussain @ Md. Illiyas subject to the such condition as the trial court may deem
fit.
9. It is pertinent to mention here that the co-convict- Md. Ilyas Hussain @
Md. Illiyas filed I.A. No.4795 before this Court in Cr. Appeal (S.J.) No.444 of
2019 with a prayer for releasing him on provisional bail for three months and
the said interlocutory application is still pending and has not yet been disposed
of by this Court hence this Court has never rejected any application under
Section 389 of Code of Criminal Procedure of the co-convict- Md. Ilyas Hussain
@ Md. Illiyas. Perusal of the order dated 22.09.2020, passed in the said I.A.
No.4795 of 2020 reveals that on the day the learned counsel for the said Md.
Ilyas Hussain @ Md. Illiyas prayed for time to advance arguments as to why the
principle of law reiterated by the Hon'ble Supreme Court of India in the case of
Shiv Kumar Vs. State (NCT of Delhi) reported in (2008) 17 SCC 122 (supra)
will not be applicable to the facts of this case and co-convict- Md. Ilyas Hussain
@ Md. Illiyas has not even filed any petition for suspension of sentence before
this court in his connected appeal arising out of the same impugned judgment
against which this appeal has also been preferred.
10. So far as the grounds for releasing the appellant-petitioner from the jail
because of the ailments are concerned, the same is neither a strong nor a
compelling reason to admit the appellant-convict-petitioner on bail more so
because of the submissions made by the learned counsel for Central Bureau of
Investigation that that there is every chance of the appellant-convict absconding
if released on bail. Further as admittedly, the petitioner is in custody in
connection with R.C. Case No.06 of 1997 and may be several other cases also
about which no definite information could be furnished by the learned counsel
for the appellant-convict, which shows that even if he is admitted to bail and his
sentence is suspended, still he will not be getting out of the jail.
11. Considering the aforesaid facts, this Court is of the considered view that
this is not a fit case where the appellant-petitioner be admitted to bail during
the pendency of the appeal or to suspend the sentence of the appellant-
petitioner.
12. Accordingly, these interlocutory applications, being without any merits,
are rejected.
(Anil Kumar Choudhary, J.)
Cr. Appeal (S.J.) No.458 of 2019
List this appeal in due course.
(Anil Kumar Choudhary, J.)
AFR-Pappu/
