Jharkhand High Court
Sachin Yadav 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. 697 of 2023
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1.Sachin Yadav
2.Chiku Yadav
3.Biki Yadav @ Vicky Yadav ... ... Appellants
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. R.S. Mazumdar, Sr. Advocate
For the Respondent : Mr. Priya Shrestha, Spl. P.P
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Order No. 07 : Dated 2nd August, 2023
Per Sujit Narayan Prasad, J:
I.A. No. 6441 of 2023
1. The instant interlocutory application has been filed under
Section 389(1) of the Code of Criminal Procedure on behalf
of appellant no. 1, namely, Sachin Yadav, for suspension of
sentence during the pendency of the instant appeal after
suspending the impugned order of sentence dated 20th
May, 2019 passed by the learned District & Additional
Sessions Judge,-II, Giridih in Sessions Trial No. 218 of
2014.
2. Learned senior counsel for the appellant no. 1 has
submitted that co-convicts have been granted bail vide
order dated 06.06.2022 [I.A. No. 330 of 2022 in Cr. Appeal
(DB) No. 697 of 2019] and the case of the appellant not. 1
stands on similar footing. Therefore, submission has been
made that it is a fit case where the appellant may be
released from judicial custody after suspending the
sentence.
3. 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. "
4. 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 16th May, 2019 passed in
Sessions Trial No. 218 of 2014, be not kept in abeyance.
5. Such response be filed on or before next date of hearing.
6. Let this matter be listed on 16th August, 2023.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Alankar/
