Jharkhand High Court
Mukhtar Alam vs The State Of Jharkhand on 1 March, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.A. (DB) No. 1246 of 2022
Mukhtar Alam ... ... ... 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. Mahesh Tewari, Advocate
For the State : Mr. Vishwanath Roy, APP
For the Informant : Mr. Binod Kumar Jha, Advocate
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Order No. 05/Dated 1st March, 2023
I.A. No. 2033 of 2023
This interlocutory application has been filed under
Section 389(1) of the Code of Criminal Procedure for
suspension of sentence passed in consequence of the
judgment of conviction dated 16.09.2022 and order of
sentence dated 21.09.2022 passed in Sessions Trial No. 32
of 2019 by learned District & Additional Sessions Judge-II,
Saraikella, whereby and whereunder the appellant has
been convicted under Section 302/34 of the Indian Penal
Code and 27 of the Arms Act directed to undergo rigorous
imprisonment for life along with fine of 20,000/- for the
offence under Section 302 of the Indian Penal Code and in
default of payment of fine to undergo S.I. for six months;
and to undergo R.I. for five years with fine of Rs. 10,000/-
for the offence under Section 27 of the Arms Act and in
default of payment of fine to undergo SI for three months.
All the sentences were directed to run concurrently.
Mr. Mahesh Tewari, learned counsel for the
appellant has submitted that the conviction of the
appellant is not based upon the cogent evidence since the
learned trial Court while convicting the appellant has not
taken into consideration the cause of death as death has
been caused due to bullet injury made by pistol as would
appear from the testimony of the doctor that there is no
cause of death has been shown to be by fire arm injury. It
has further been submitted that one of the co-accused,
namely, Akhtar Alam, has been granted bail by this Court
vide order dated 07.02.2023 in Cr. Appeal (DB) No. 1146 of
2022 [I.A. No. 1058 of 2023] and case of the appellant
stands on similar footing. Therefore, it is a fit case in which
the sentence may be kept in abeyance.
Mr. Vishwanath Roy, learned Additiional Public
Prosecutor, has sought for time for filing objection in view
of the provision as contained under first proviso to Section
389 of the Code of Criminal Procedure.
Learned counsel appearing for the
applicant/appellant has submitted that the copy of the
instant application has been served upon the learned State
counsel on 22.02.2023, but even then no response to the
said application has been filed and when the matter has
been taken up today, time has been sought for.
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."
Heard learned counsel for the parties.
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 16.09.2022 in S.T.
No.32 of 2019, be not kept in abeyance.
Such response be filed within two weeks.
Let this matter be listed on 22nd of March, 2023.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Alankar/-
