Jharkhand High Court
Nakabandi Pasi @ Birju Pasi vs The State Of Jharkhand on 27 February, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1376 of 2018
Nakabandi Pasi @ Birju Pasi ........... Appellant
Versus
The State of Jharkhand
through victim .......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. Ajit Kumar, Advocate
For the State : Mr. Pankaj Kumar, P.P.
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th
05/Dated: 27 February, 2023
I.A. No.1860 of 2023
The instant application has been filed under Section 389(1) of the
Cr.P.C. seeking a direction of this Court to suspend the sentence in
consequence of the judgment of conviction dated 4th September, 2018
passed in Special POCSO Case No.11 of 2014, whereby and whereunder the
appellant, namely, Nakabandi Pasi @ Birju Pasi has been sentenced to
undergo rigorous imprisonment for twenty years with fine of Rs.10,000/- for
the offence under Section 376(2) of the I.P.C.
Learned counsel appearing for the applicant (the appellant to the
memo of appeal) has submitted that the appellant has remained in custody
for the period of more than eight and half years i.e., since July, 2014 and as
also there is no likelihood of the appeal being disposed of at an early date, as
such, suspension of sentence has been prayed.
Mr. Pankaj Kumar, learned P.P. referring to the impugned judgment of
conviction, wherein the allegation has been found to be proved beyond all
shadow of doubt and there is no infirmity as also no ground has been taken
to establish any prima facie reason to pass an order keeping the sentence in
abeyance.
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We have heard the learned counsel for the parties and gone through
the impugned judgment of conviction.
Before entering into the ground as has been agitated in the instant
interlocutory application for suspending the sentence, the reference of the
judgment of the Hon'ble Apex Court rendered in the case of Kishori Lal v.
Rupa and Ors., reported in (2004) 7 SCC 638 is required to be made,
wherein at paragraphs 4, 5 and 6 it has been held, which reads as under:
"4. Section 389 of the Code deals with suspension of execution of sentence
pending the appeal and release of the appellant on bail. There is a distinction
between bail and suspension of sentence. One of the essential ingredients of
Section 389 is the requirement for the appellate court to record reasons in writing
for ordering suspension of execution of the sentence or order appealed against. If
he is in confinement, the said court can direct that he be released on bail or on his
own bond. The requirement of recording reasons in writing clearly indicates that
there has to be careful consideration of the relevant aspects and the order
directing suspension of sentence and grant of bail should not be passed as a
matter of routine.
5. The appellate court is duty-bound to objectively assess the matter and to record
reasons for the conclusion that the case warrants suspension of execution of
sentence and grant of bail. In the instant case, the only factor which seems to
have weighed with the High Court for directing suspension of sentence and grant
of bail is the absence of allegation of misuse of liberty during the earlier period
when the accused-respondents were on bail.
6. The mere fact that during the trial, they were granted bail and there was no
allegation of misuse of liberty, is really not of much significance. The effect of bail
granted during trial loses significance when on completion of trial, the accused
persons have been found guilty. The mere fact that during the period when the
accused persons were on bail during trial there was no misuse of liberties, does
not per se warrant suspension of execution of sentence and grant of bail. What
really was necessary to be considered by the High Court is whether reasons
existed to suspend the execution of sentence and thereafter grant bail. The High
Court does not seem to have kept the correct principle in view."
Further the Hon'ble Apex Court in the case of Preet Pal Singh vs.
State of U.P. reported in (2020) 8 SCC 645 has held at paragraphs 27,
32, 35 and 36 which reads as under:
"27. Section 304-B was incorporated in the Penal Code by the Dowry Prohibition
(Amendment) Act, 1986 (Act 43 of 1986). The object of the amendment was to
curb dowry death. Section 304-B does not categorise death, it covers every kind of
death that occurs otherwise than in normal circumstances. Where the other
ingredients of Section 304-B of the Code are satisfied, the deeming fiction of
Section 304-B would be attracted and the husband or the relatives shall be
deemed to have caused the death of the bride.
32. In Mauji Ram v. State of U.P. [Mauji Ram v. State of U.P., (2019) 8 SCC 17 :
(2019) 3 SCC (Cri) 265] , this Court referred to Ajay Kumar Sharma v. State of
U.P. [Ajay Kumar Sharma v. State of U.P., (2005) 7 SCC 507 : 2005 SCC (Cri)
1702] , Lokesh Singh v. State of U.P. [Lokesh Singh v. State of U.P., (2008) 16 SCC
753 : (2010) 4 SCC (Cri) 418] and Dataram Singh v. State of U.P. [Dataram
Singh v. State of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675] and stated
categorically that this Court had time and again emphasised the need for
assigning reasons while granting bail.
35. There is a difference between grant of bail under Section 439 CrPC in case of
pre-trial arrest and suspension of sentence under Section 389 CrPC and grant of
bail, post conviction. In the earlier case, there may be presumption of innocence,
which is a fundamental postulate of criminal jurisprudence, and the courts may be
liberal, depending on the facts and circumstances of the case, on the principle that
bail is the rule and jail is an exception, as held by this Court in Dataram
Singh v. State of U.P. [Dataram Singh v. State of U.P., (2018) 3 SCC 22 : (2018) 1
SCC (Cri) 675] 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.
36. In Vinod Singh Negi v. State of U.P. [Vinod Singh Negi v. State of U.P., (2019)
8 SCC 13 : (2019) 3 SCC (Cri) 262] , this Court set aside the impugned order
[Umesh Sharma v. State of U.P., 2018 SCC OnLine All 5338] of suspension of
sentence and grant of appeal as the order was devoid of reasons."
In view of the mandate of Section 389 of the Cr. P. C., the principle
are different in the case of sentences not exceeding three years as well as in
the bailable offence. Also the cases where the person is convicted of offences
punishable with death or imprisonment for life or imprisonment for a term
not less than ten years, an opportunity to be given to the public prosecutor
under proviso to Section 389(1) of the Cr.P.C.
It is, thus, evident from the aforesaid proposition of law that the
reasons have to be germane to justify the grounds of suspension of
sentence. The mere fact that during trial the accused were granted bail and
there was no allegation of misuse of privilege of bail, is not of much
significance, as the accused had been found guilty on conviction. The mere
fact that during trial liberty of bail was not misused may not per se warrant
suspension of sentence on grant of bail. However, if the convict has
undergone more than half of the sentence in case of fixed term sentence and
disposal of appeal is likely to take some time, the matter needs to be seen in
the light of observation made by the Hon'ble Apex Court in the case of
Sonadhar vs. The State of Chhattisgarh (S.L.P (Cr.) No.529 of 2021,
wherein, it has been held, "The Delhi High Court Legal Services Committee
would take up cases for those convicts who have undergone more than half
the sentence in case of fixed such sentences and examine the flexibility of
filing the bail application before the High Court."
The position of law is well settled as would be evident from the
judgment referred hereinabove that the Appellate Court, at the stage of
suspension of sentence and release on bail till disposal of appeal, has to
examine a case in patent infirmity in the order of conviction that renders the
conviction prima facie erroneous. The evidence is not to be reassessed or to
reanalyze to suspend the execution of the sentence. The detailed observation
on merit of the case are called for, at this stage, lest it prejudices the case of
the petitioner but the matter has been set in the light of the principles of law.
Having regard to the evidence on record and detailed reasons recorded
by the learned trial court, this Court is of the considered opinion that no
ground for suspension of sentence till disposal of the appeal was made out in
the present case.
The instant interlocutory application is accordingly, dismissed.
The observation herein has been made prima facie only for the
purpose of consideration of suspension of sentence.
Let a copy of this order be forwarded to the appellant through Jail
Superintendent.
Cr. Appeal (DB) No. 1376 of 2018
It appears from the record that the Lower Court Records have already
been received in Cr. Appeal (D.B.) No.1273 of 2018.
List this appeal as per its seriatim.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Rohit Pandey/-
