Manaur Hussain @ Manuwer Husen vs The State Of Jharkhand
2023 Latest Caselaw 1601 Jhar

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
       Criminal Appeal (DB) No.306 of 2023
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Manaur Hussain @ Manuwer Husen .... ... Appellant Versus The State of Jharkhand ... ... Respondent

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CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Appellant : Mr. Hemant Kr. Shikarwar, Advocate For the Respondent : Ms. Amrita Kumari, A.P.P.

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th Order No. 04/Dated 13 April, 2023

I.A. No. 2305 of 2023

This interlocutory application has been filed under

section 389(1) of the Code of Criminal Procedure for

suspension of sentence passed in connection with Special

POCSO Case No.18 of 2021 whereby and whereunder the

appellant has been convicted for the offence under Section

376 of the Indian Penal Code and Section 4 of the POCSO

Act and has been sentenced to undergo rigorous

imprisonment for 12 years along with fine of Rs.25,000/-

for the said offences.

The matter was heard by this Bench on 23.03.2023

and after hearing the learned counsel for the appellant, the

State was called upon to file affidavit in objection to explain

as to why the sentence inflicted upon the appellant be not

kept in abeyance.

In terms of the aforesaid order, affidavit by way of

objection has been filed.

Mr. Hemant Kumar Shikarwar, learned counsel

appearing for the appellant by referring to the objection

affidavit has submitted that the averment contained therein

is nothing but reiteration of the finding recorded by the

learned trial court.

The argument which has been advanced said to be

valid ground for suspension of sentence, i.e., the

commission of crime has not been corroborated by the

testimony of the doctor - PW-5, has not been disputed.

It has been submitted that the ground has been

taken in opposition that there is criminal antecedent of

similar nature and if the appellant will be directed to be

released on bail, there is every likelihood that again he will

indulge himself in the molestation.

It has been submitted that merely on the basis of

the apprehension that if he will come out, he will commit

the molestation of the girls, cannot be sufficient reason to

reject the instant application.

Learned Additional Public Prosecutor appearing for

the State has submitted that the ground has been taken

that there is criminal antecedent and if he will come out,

there is every likelihood that similar type of incident will

again occur.

This Court has heard the learned counsel for the

parties and after appreciating the argument as also after

going through the objection affidavit and the finding

recorded by the learned trial court, wherefrom this Court

has found that the commission of crime is not corroborated

by the doctor, PW-5, as per the discussion made by the

learned trial court in the impugned judgment at page-8

wherein the testimony of PW-5, the doctor, has been

discussed.

The ground which has been taken for not allowing

the instant application is that if the appellant will come out

from judicial custody, there is chance of commission of

crime of similar nature but that cannot be a ground to

reject this application merely on the basis of the

apprehension since languishing in judicial custody is

directly in the teeth of Article 21 of the Constitution of India

pertaining to the right to liberty and the same cannot be

denied merely on the ground of apprehension.

Considering the same, this Court is of the view that

the sentence inflicted upon the appellant in connection

with Special POCSO Case No.18 of 2021 deserves to be

kept in abeyance.

Accordingly, the instant interlocutory application is

allowed.

The sentence, so far as it relates to the present

appellant, pertaining to Special POCSO Case No.18 of 2021

is hereby kept in abeyance.

In view thereof, the appellant named above, is directed

to be released on bail on furnishing bail bond of Rs.10,000/-

(Rupees Ten Thousand only) with two sureties of the like

amount each to the satisfaction of learned District &

Additional Sessions Judge-III-cum-Special Court-II (POCSO

Act), Koderma in connection with Special POCSO Case No.18

of 2021.

The I.A. No.2305 of 2023 stands disposed of.

It is made clear that whatever observation has been

made hereinabove will not prejudice the case of the

appellant on merit since the appeal is lying pending for its

consideration.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.) Birendra/