Chaita Mistri @ Chetlal Mistri @ ... vs The State Of Jharkhand
2023 Latest Caselaw 1043 Jhar

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
      Criminal Appeal (D.B.) No.527 of 2020
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Chaita Mistri @ Chetlal Mistri @ Chetlal @ Balkishun Mistri .... ... 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. Shailesh, Advocate For the Respondents : Mr. Ravi Prakash, APP

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Order No. 11/Dated 2nd March, 2023

I.A. No.1918 of 2023

This interlocutory application has been filed under

section 389(1) of the Code of Criminal Procecdure for

suspension of sentence passed on 29.02.2020 in connection

with judgment of conviction in Session Trial No.192 of 2009

by learned Additional Sessions Judge-V, Giridih, by which the

appellant has been convicted under Sections 147, 148, 148,

447, 427 and 302 of the Indian Penal Code and sentenced RI

for two years under Section 148 IPC; RI for one year under

Section 427 IPC; RI for three months under Section 447 IPC

and life imprisonment with fine of Rs. 20,000, in default of

fine RI of one year under Section 302 of the Indian Penal

Code. All the sentences were directed to run concurrently.

Mr. Shailesh, learned counsel for the

applicant/appellant has submitted that the prosecution has

failed to prove the case beyond all shadow of doubt, since

there is no cogent evidence to prove the guilt against the

applicant/appellant. He has further submitted that the

appellant and his family members were all along staying at

Dhanbad in view of his posting at Dhanbad and further on

the date of occurrence the appellant was on duty as has been

corroborated by two defense witnesses i.e., Kunjal-D.W. 1 and

Jital-D.W. 2. It has further been submitted that the appellant

had no dispute whatsoever with the informant and in fact it

was his cousin who was having inimical relation with the

informant.

While on the other hand, Mr. Ravi Prakash, learned

Additional Public Prosecutor, has submitted that it is

incorrect to say on the part of the that there is no cogent

evidence, rather, all the material witnesses have corroborated

the prosecution version which is being supported by the

testimony of the doctor who has conducted post mortem over

the dead body. Therefore, submission has been made that it

is not a case where the sentence is fit to be kept in abeyance.

We have heard learned counsel for the parties and

perused the finding recorded by the learned trial court.

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. [ (2019) 8 SCC 17] , this Court referred to Ajay Kumar Sharma v. State of U.P. [ (2005) 7 SCC], Lokesh Singh v. State of U.P. [ (2008) 16 SCC 753] and Dataram Singh v. State of U.P. [ (2018) 3 SCC 22] 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."

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 the

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.

Reverting back to the facts of the present case, on

appreciating the finding recorded by the learned trial court, it

appears from the impugned judgment that the prosecution

witnesses have fully supported the case and prima facie there

appears no discrepancy in their testimony and merely

because witnesses are family members of the informant, there

testimony cannot be discarded.

It further appears that the Doctor has also

corroborated the occurrence by giving opinion about the

cause of death.

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.

This Court, after taking into consideration the

evidence on record and the principle to keep the suspension

in abeyance in the case of conviction, during the pendency of

the appeal, is of the view that no prima facie case is made out

to keep 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 Jail Superintendent.

The appeal will be listed in due course.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.) Alankar/