Jharkhand High Court
Suraj Mahto @ Suraj Gope vs The State Of Jharkhand on 1 March, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1 of 2023
Suraj Mahto @ Suraj Gope ....... 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. Akhauri Anjani Kumar, Advocate
: Mr. Akhouri Awinash Kumar, Advocate
For the State : Mr. Ravi Prakash, A.P.P
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st
3/Dated: 1 March, 2023
Per: Sujit Narayan Prasad, J.
I.A. No.906 of 2023
This interlocutory application has been filed under section 389(1) of
the Cr. P.C for suspension of sentence passed in consequence of the
judgment of conviction dated 07.12.2022 in Sessions Trial No.471 of 2013
by learned Additional Judicial Commissioner, XV, Ranchi, whereby and
whereunder the appellant has been convicted under Section
364A/302/201/120B/34 of the Indian Penal Code and under Section 27 of
the Arms Act and directed to undergo imprisonment for life and fine of
Rs.5,000/- for the offence under Section 302/34 of the I.P.C and in default of
payment of fine to undergo R.I for 3 months, further sentenced to undergo
imprisonment for life and fine of Rs.5,000/- for the offence under section
364A/34 of IPC and in default of payment of fine to undergo R.I. for 3
months, further sentenced to undergo R.I for 3 years and fine of Rs.2,000/-
for the offence under section 201/34 of IPC and in default of payment of fine
to undergo R.I. for 1 month, further sentenced to undergo imprisonment for
life and fine of Rs.5000/ for the offence under section 120B IPC and in
default of payment of fine to undergo R.I. for 3 months. Further he has been
sentenced to undergo R.I for 5 years and fine of Rs.3,000/- for the offence
under section 27 of Arms Act and in default of payment of fine to undergo
R.I for 2 months and all the sentence are directed to run concurrently.
Learned counsel appearing for the appellant has submitted that the
judgment of conviction has been passed by the learned trial court without
taking into consideration any cogent evidence. It has been submitted that the
sole basis of conviction as has been recorded by the learned trial court is the
confession made leading to recovery and applicability of Section 27 of the
Evidence Act the judgment of conviction has been passed. It has been
contended that whatever incriminating material including the dead body of
the deceased has been recovered on confession being made the same cannot
be said to be conclusive evidence to prove the culpability of the appellant.
On the other hand, Mr. Ravi Prakash, learned A.P.P appearing for the
State has submitted by referring to the paragraph 40 onwards of the
impugned judgment, whereby and whereunder the learned trial court has
taken into consideration the fact of recovery of the dead body including the
pistol etc. as would appear from the reference to that effect made in
paragraph 42 of the impugned judgment. It is, therefore, contended that the
learned trial court after taking into consideration the recovery of the dead
body including the other incriminating materials from the place of
occurrence the judgment of conviction has been passed, therefore, the same
cannot be said to be prima facie evidence at this stage to look into to pass an
order keeping in abeyance the sentence inflicted upon the appellant.
We have heard learned counsel for the parties and considered the rival
submissions made on their behalf.
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 paragraph 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 paragraph 27, 32 and
36 which reads as under:
"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 Cr P
C in case of pre-trial arrest and suspension of sentence under Section
389 Cr P C 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) Cr P C."
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, that the reasons have to be germane to justify the
grounds of suspension of sentence. 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.
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, that Delhi High
Court Legal Services Committee would take up cases of those convicts who
have undergone more than half the sentence in case of fixed term sentences
and examine the feasibility of filing bail applications before the High Court
while in case of 'life sentence' cases, such an exercise may be undertaken
where eight years of actual custody has been undergone.
We have gone into the finding recorded by the learned trial court
wherefrom it is evident that the appellant having been taken into custody has
given his confession basis upon which the dead body of the deceased has
been recovered as would appear from paragraph 41 and 42 of the impugned
judgment.
Having regard to the evidence on record, we are prima facie not
satisfied to pass an order keeping the sentence in abeyance.
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
concerned Jail Superintendent.
The appeal will be listed in due course.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Saket/-
