Jharkhand High Court
Rameshwar Das vs The State Of Jharkhand on 2 August, 2023
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 228 of 2023
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Rameshwar Das ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Vikram Sinha, Advocate
For the Respondent : Mr. Ravi Prakash, A.P.P
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Order No. 05 : Dated 2 August, 2023
nd
Per Sujit Narayan Prasad, J:
I.A. No. 4589 of 2023
1. The instant interlocutory application has been filed under
Section 389(1) of the Code of Criminal Procedure on behalf
of appellant, named above, for suspension of sentence
during the pendency of the instant appeal after suspending
the impugned order of sentence dated 09.12.2022 passed
by the learned Additional Sessions Judge,-XVI, Dhanbad in
Sessions Trial No. 68 of 2010.
2. Learned counsel for the appellant has submitted that the
impugned judgment of conviction suffers from infirmity
since according to learned counsel for the appellant, Jamni
Devi-P.W.5 had disclosed the nameee of two persons,
namely, Goutam Das and Rakesh Koiri while recording her
fard beyan in RIMS the day when the deceased was
carrying to the RIMS for his treatment but at the time of
recording her testimony she has completely changed her
version by taking the name of the appellant and as such
the same amounts to development in the statement as
recorded in the fard beyan by P.W. 5 and hence, the
testimony of P.W. 5 cannot be said to be trustworthy
evidence to convict the appellant.
3. It has further been contended that the reason behind
implication of the appellant in this case is that there was
dispute over some land wherein it has come in the
testimony of P.W. 5 that the appellant was residing in the
residence of deceased in the capacity of tenant and
subsequent thereto he stopped making payment of rent
and claimed that this property has been purchased by him.
As such it has been contended that there is reason behind
false implication of the appellant.
4. It has further been submitted that in the case at hand, the
Investigating Officer has not been examined in this case
and as such serious prejudice has been caused to the
appellant in a case where there is vital contradiction in the
testimony of witness is there.
5. Therefore, submission has been made that it is a fit case
where the appellant may be released from judicial custody
after suspending the sentence.
6. In response thereto, learned Public Prosecutor has referred
the judgment passed by the Hon'ble Apex Court in the case
of Somesh Chaurasia v. State of M.P. and Another
reported in 2021 SCC OnLine SC 480 wherein the Hon'ble
Apex Court, after due consideration, has mandated that
irrespective of the fact that the copy of the appeal or the
application seeking suspension of sentence has been
served, even then an opportunity is to be granted to the
Public Prosecutor to show cause in writing as to why the
appellant be not released on bail. Reference of paragraph
36 of the aforesaid judgment is required to made which
reads hereunder as :-
"36. Section 389(1) of the CrPC allows the court to release a
convicted person on bail. The second proviso to Section
389(1) of CrPC provides that where a convicted person has
been released on bail, it is open to the public prosecutor to
file an application for the cancellation of bail. However, the
grant of bail post-conviction is governed by well-defined
procedures and parameters. The factors that govern the
grant of suspension of sentence under Section 389(1) have
been discussed by this Court (speaking through Justice
Kurian Joseph) in Atul Tripathi v. State of U.P. in the
following terms:
"It may be seen that there is a marked difference between the
procedure for consideration of bail under Section 439, which is pre
conviction stage and Section 389 Code of Criminal Procedure, which
is post-conviction stage. In case of Section 439, the Code provides
that only notice to the public prosecutor unless impractical be given
before granting bail to a person who is accused of an offence which is
triable exclusively by the Court of Sessions or where the punishment
for the offence is imprisonment for life; whereas in the case of post-
conviction bail under Section 389 Code of Criminal Procedure, where
the conviction in respect of a serious offence having punishment with
death or life imprisonment or imprisonment for a term not less than
ten years, it is mandatory that the appellate court gives an
opportunity to the public prosecutor for showing cause in writing
against such release.
15. Service of a copy of the appeal and application for bail on the
public prosecutor by the Appellant will not satisfy the requirement of
first proviso to Section 389 Code of Criminal Procedure. The appellate
court may even without hearing the public prosecutor, decline to grant
bail. However, in case the appellate court is inclined to consider the
release of the convict on bail, the public prosecutor shall be granted
an opportunity to show cause in writing as to why the Appellant be
not released on bail. Such a stringent provision is introduced
only to ensure that the court is apprised of all the relevant
factors so that the court may consider whether it is an
appropriate case for release having regard to the manner in
which the crime is committed, gravity of the offence, age,
criminal antecedents of the convict, impact on public
confidence in the justice delivery system, etc. Despite such an
opportunity being granted to the public prosecutor, in case no cause is
shown in writing, the appellate court shall record that the State has
not filed any objection in writing. This procedure is intended to ensure
transparency, to ensure that there is no allegation of collusion and to
ensure that the court is properly assisted by the State with true and
correct facts with regard to the relevant considerations for grant of
bail in respect of serious offences, at the post conviction stage. "
7. This Court, having heard learned counsel for the parties
and taking into consideration the mandate of first proviso
to Section 389 of the Code of Criminal Procedure, hereby
calls upon the State to file objection, if any, as to why the
sentence inflicted upon the appellant in pursuance to the
judgment of conviction dated 05.12.2022 passed in
Sessions Trial No. 68 of 2010, be not kept in abeyance.
8. Such response be filed on or before next date of hearing.
9. Let this matter be listed on 10th August, 2023.
10.The Lower Court Records which was handed over to Mr.
Ravi Prakash, learned A.P.P. has been returned to the
Court Master.
11.Let the same be kept on record.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Alankar/
