Jharkhand High Court
Dhananjay Mudi Koda @ Dhananjay ... vs The State Of Jharkhand on 2 March, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.A. (DB) No. 1072 of 2022
Dhananjay Mudi Koda @ Dhananjay Kora
... ... ... 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. Arun Kumar Pandey, Advocate
For the State : Mrs. Kumari Rashmi, APP
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Order No. 05/Dated 2nd March, 2023
I.A. No. 8985 of 2022
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 12.07.2022 and order of
sentence dated 16.07.2022 passed in Sessions Trial No.
157 of 2020 by learned Special Judge (FTC) CAW,
Jamshedpur whereby and whereunder the appellant has
been convicted under Section 376(1) and 306 of the Indian
Penal Code and sentenced to undergo rigorous
imprisonment for 14 years along with fine of 10,000/- (Ten
Thousand) and in default of payment of fine to undergo
additional R.I. for one year for the offence under Section
376(1); and sentenced to R.I. for 10 years for the offence
punishable under Section 306 of the Indian Penal Code and
fine of Rs. 10,000/- and in default of payment of fine to
undergo additional R.I. for one year. Both the sentences
were directed to run concurrently.
Mr. Arun Kumar Pandey, learned counsel for the
appellant has submitted, by referring to the finding
recorded by learned trial Court, that save and except the
conversation as was found in course of investigation as has
been considered by the learned trial Court from the CDR
(Call Device Recording) containing therein the mobile
number of the appellant nothing has been found against
the appellant. He has further submitted that it is a case
where witnesses have accepted that the appellant was in
love affairs with the deceased but no investigation has been
conducted that why the appellant who was at love with the
deceased had committed murder of the deceased.
Ms. Kumari Rashmi, learned Additional Public
Prosecutor, has submitted that it is incorrect to submit on
the part of appellant that there is nothing against the
appellant save and except conversation as contained in
CDR over the mobile by the appellant with the deceased
rather it is also case of the prosecution that the appellant
was last seen with the deceased basis upon which the
judgment of conviction and order of sentence has been
passed, as such it cannot be said that it is a fit case to
suspend the sentence of the appellant. However, she 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 16.09.2022, 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 conviction dated 12.07.2022 and order of sentence
dated 16.07.2022 passed in Sessions Trial No. 157 of 2020,
be not kept in abeyance.
Such response be filed within two weeks.
Let this matter be listed on 23rd March, 2023.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Alankar/-
