Jharkhand High Court
Ramanand Ram @ Ramannand Ram vs The Union Of India Through C.B.I on 22 June, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 284 of 2019
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Ramanand Ram @ Ramannand Ram ... Appellant
Versus
The Union of India through C.B.I. ... Respondent
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CORAM: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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For the Appellant : Mr. R.S. Mazumdar, Sr. Advocate
For the C.B.I. : Mr. Rohit Sinha, Advocate
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Order No.11 Dated- 22.06.2021
I.A. No.3670 of 2020
Heard the parties through video conferencing.
It is submitted by the learned Senior Advocate appearing
for the Applicant-Appellant that this interlocutory application
has been filed with a prayer for releasing the Applicant-
Appellant on bail and suspending the execution of his sentence,
during the pendency of this appeal. It is submitted by the
learned Senior Advocate appearing for the Applicant-Appellant
that the Applicant-Appellant is not ready for hearing of the
appeal on merits. It is next submitted that earlier the Applicant-
Appellant moved before this Court in I.A. No.5589 of 2019 inter
alia praying for grant of provisional bail to the Applicant-
Appellant for a period of two months and the said application
was heard on 25.06.2019 and the Applicant-Appellant was
granted provisional bail till 10.7.2019 and consequent upon that
the Applicant-Appellant surrendered before the learned court
below on 11.07.2019. It is further submitted by the learned Senior
Advocate appearing for the Applicant-Appellant that the
Applicant-Appellant was in custody for more than three months
during the trial and has been languishing in custody since
22.02.2019. It is next submitted by the learned Senior Advocate
appearing for the Applicant-Appellant that the impugned
judgment of conviction and order of sentence is bad in law.
Hence, the Applicant-Appellant be admitted to bail and
execution of his sentence be suspended.
Mr. Rohit Sinha, learned counsel for the Central Bureau of
Investigation on the other hand vehemently opposed the prayer
for bail and suspension of execution of the sentence and
submitted that for suspension of execution of the sentence and
granting bail to the Applicant-Appellant on the ground for
undergoing half of the maximum sentence, following twin
conditions are required to be satisfied:
(i) There is no likelihood of the appeal being taken up in
near future; and
(ii) The appellant has undergone half of the maximum
sentence imposed upon him in that particular case
against the judgment of which the appeal has been
preferred.
But as in this case neither of the two conditions is existing. It is
next submitted by Mr. Sinha, that the appeal was fixed for
hearing on 02.03.2021 but no one turned up on behalf of the
appellant for hearing of the appeal and on 08.04.2021 when the
appeal was fixed for hearing, the learned counsel for the
appellant prayed for time. It is next submitted by Mr. Sinha that
this appeal can be heard and disposed of finally as and when the
appellant gets ready for hearing of the appeal and the
respondent is also ready for hearing of the appeal. Hence, as the
appellant is not ready for hearing of the appeal certainly, he
cannot take the plea to be released on bail or the execution of
sentence be suspended. It is then submitted by Mr Sinha that as
submitted by the learned counsel for the Applicant-Appellant
today, the Applicant-Appellant is not ready for hearing of the
appeal on merits even today though the appeal is fixed for
hearing on merits today also but the Applicant-Appellant
obviously being aware that there is no merit in this appeal is not
getting ready for hearing of the appeal on its merit and is only
interested for bail and suspension of execution of the sentence
imposed upon him without serving out the sentence imposed
upon him by hook or crook. It is also submitted that in view of
this conduct of the appellant and the facts of the case, there is
every chance of the Applicant-Appellant absconding if released
on bail. Hence, it is submitted that the Applicant-Appellant
ought not to be admitted to bail.
Having heard the submissions made at the Bar, it is
pertinent to mention here that the Hon'ble Supreme Court of
India has granted bail 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 but 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- Ex-Minister 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 has
completed more than 2 years and 5 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.
It is pertinent to mention here that the co-convict- Md. Ilyas
Hussain @ Md. Illiyas filed I.A. No.4795 of 2020 before this Court
in Cr. Appeal (SJ) 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 that 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 will not be applicable to
the facts of that 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.
It is a settled principle of law that that where the accused is
convicted for offence punishable under the Prevention of
Corruption Act, 1988 it would not be prudent and desirable to
give 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 v. State (NCT
of Delhi), reported in (2008) 17 SCC 122, paragraph no.7 of
which reads as under :-
"7. This Court has observed in several cases that where
the accused is 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 also pertinent to mention here that this Court can
hear and dispose of this appeal on merits on any day which is
suitable to the Applicant-Appellant. It is also relevant to mention
here that this Court has heard and disposed of all such appeals
under the roster heading 'P.C. Act Cases' in which the appellants
were ready for final hearing of the appeals and even several
appeals filed in the year 2020 including the appeal having
voluminous documents, where the Lower Court Records in view
of the voluminous documents were to be transported to this
Court in big tin trunk have already been finally disposed of after
the Covid-19 pandemic set in by virtual mode, hence this appeal
can also be disposed of as and when the appellants get ready for
hearing of these appeals. It is needless to mention here that there
has not been many judgments of conviction involving the
offences punishable under the penal provisions of the Prevention
of Corruption Act,1988, of the year 2021 in this state, because of
the restrictions imposed by the administrative side of this court
upon the trial courts restraining them from examining the
witnesses because of the Covid-19 pandemic.
It is also a settled principle of law that for granting of
post-conviction bail to a convict under Section 389 of 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. Xxxxxxxxxxxx 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)
So far as the contention of the learned senior counsel for
the Applicant-Appellant regarding the granting of bail and
suspension of execution of sentence of the Applicant-Appellant
on the ground of undergoing half of the sentence is concerned,
this Court is of the considered view that the Applicant-Appellant
is not entitled to be released on bail and suspension of execution
of the sentence on the ground of undergoing more than half of
the sentence simpliciter because it is a settled principle of law
that for releasing a convict on the ground of undergoing half of
the sentence, the twin conditions must exist;
One is that there is no chance of the appeal of being taken up
for hearing and final disposal in near future; and
The second condition is that the Applicant-Appellant has
undergone half of the maximum sentence imposed.
It is needless to mention that the release of a convict on the
ground of half of the sentence undergone is not based upon any
statutory provision of law rather the same is based on the
principle of violation of the fundamental rights of speedy trial as
enshrined under Article 21 of the Constitution of India. In the
case of Hussainara Khatton & Ors. Vs. Home Secretary, State of
Bihar (1980 1 SCC 108), the Hon'ble Supreme Court of India
recognized the right of speedy trial to be a fundamental right
under Article 21 of the Constitution of India. In the case of
Akhtari Bi (Smt.) v. State of M.P., reported in (2001) 4 SCC 355,
the Hon'ble Supreme Court of India has observed as under in
paragraph no.5:-
"5. To have speedy justice is a fundamental right which
flows from Article 21 of the Constitution. Prolonged
delay in disposal of the trials and thereafter appeals in
criminal cases, for no fault of the accused, confers a
right upon him to apply for bail. This Court has, time
and again, reminded the executive of their obligation to
appoint requisite number of Judges to cope with the
ever-increasing pressure on the existing judicial
apparatus. Appeal being a statutory right, the trial
court's verdict does not attain finality during pendency
of the appeal and for that purpose his trial is deemed to
be continuing despite conviction. It is unfortunate that
even from the existing strength of the High Courts
huge vacancies are not being filled up with the result
that the accused in criminal cases are languishing in
the jails for no fault of theirs. In the absence of prompt
action under the Constitution to fill up the vacancies, it
is incumbent upon the High Courts to find ways and
means by taking steps to ensure the disposal of criminal
appeals, particularly such appeals where the accused are
in jails, that the matters are disposed of within the
specified period not exceeding 5 years in any case.
Regular Benches to deal with the criminal cases can be
set up where such appeals be listed for final disposal.
We feel that if an appeal is not disposed of within the
aforesaid period of 5 years, for no fault of the convicts,
such convicts may be released on bail on such
conditions as may be deemed fit and proper by the
court. In computing the period of 5 years, the delay for
any period, which is requisite in preparation of the
record and the delay attributable to the convict or his
counsel can be deducted. There may be cases where even
after the lapse of 5 years the convicts may, under the
special circumstances of the case, be held not entitled to
bail pending the disposal of the appeals filed by them.
We request the Chief Justices of the High Courts, where
the criminal cases are pending for more than 5 years to
take immediate effective steps for their disposal by
constituting regular and special Benches for that
purpose."(Emphasis supplied)
It is pertinent to mention here that while enunciating
this principle, the Hon'ble Supreme Court of India has very
much in its mind the denial of fundamental right of speedy trial
guaranteed under Article 21 of the Constitution of India to the
appellant of that case and thus for the purpose of computing the
period beyond which the convicts can be released on bail, the
Hon'ble Supreme Court has held that if an appeal is not disposed
of within the aforesaid period of five years for no fault of the
convicts, such convicts may be released on bail on such condition
as may be deemed fit and proper by the Court and the Hon'ble
Supreme Court also went on to say that in computing the five
years delay which is attributable to the convict or his counsel can
be deducted. This in other words means that if the delay in
disposal of the appeal is caused by the appellant or his counsel
certainly that will not entitle the appellant for bail because of the
pendency of the appeal for a long time. So from the aforesaid
discussions it is crystal clear that if the convict is not cooperating
with the hearing of the appeal, he cannot take the plea that
merely because he has undergone half of the sentence, he has to
be released on bail and if such a proposition is accepted it will
lead to an absurd consequence whereby the sentence imposed by
the trial court will automatically be reduced to half of what has
been imposed, without the appeal being heard because of non-
cooperation of the appellant.
This view of the Hon'ble Supreme Court is also
reiterated in the Judgment of Hon'ble Supreme Court in the case
of Shiv Kumar vs. State (NCT of Delhi) (supra) where in the
case involving the offences punishable under penal provisions of
Prevention of Corruption Act, 1988 the Apex Court did not
release the appellant convict on bail and instead requested the
High Court to conclude the trial. Similarly in the case of Salim
Javed vs. State of Rajasthan reported in (2006) 9 SCC 602 where
also before releasing the appellant on bail, the Apex Court has
taken into consideration the submissions made on behalf of the
appellant that there was no chance of the concerned appeal to be
heard in near future. Similarly, in the case of Dinesh Kumar
Sinha vs. State of Jharkhand through C.B.I. reported in (2009) 6
SCC 628, the Hon'ble Supreme Court also considered that there
is no possibility of early hearing of the appeal in the High Court
and therefore, the bail was granted to the appellant of that case
concerned. Principally basing upon this principle, the legislature
introduced section 436A in the Code of Criminal Procedure, 1973
by way of Amendment in the year 2005 vide Section 36 of Act
No.25 of 2005 with effect from 23.06.2006 of course which
provision of law is only applicable to the stage of proceeding
before final judgment is passed by the trial court, and
explanation that section which reads as under
Explanation.- In computing the period of detention under this
section for granting bail, the period of detention passed due to delay
in proceeding caused by the accused shall be excluded.
Also provides for excluding the delay in proceeding
caused by the accused in computing the period of detention for
granting bail in terms of the said provision of law. Thus as the
appellant is not cooperating with the hearing of the appeal is not
entitled to bail on this ground simpliciter.
Considering the aforesaid facts, this Court is of the
considered view that as there is neither strong nor a compelling
reasons to admit the Applicant-Appellant on bail more so,
because of the submissions made by the learned counsel for
C.B.I. that there is every chance of the Applicant-Appellant
absconding if released on bail, this is not a fit case where the
Applicant-Appellant be admitted to bail during the pendency of
the appeal or to suspend the execution of the sentence of the
Applicant-Appellant.
Accordingly, this interlocutory application being without
any merit is rejected.
(Anil Kumar Choudhary, J.)
Cr. Appeal (SJ) No. 284 of 2019
List this appeal for hearing in due course or as and when
mentioned by the appellant.
(Anil Kumar Choudhary, J.)
A.F.R. -Sonu-Gunjan/
