Babulal Singh @ Babulal Kumar ... vs The State Of Jharkhand
2023 Latest Caselaw 1047 Jhar

Citation : 2023 Latest Caselaw 1047 Jhar
Judgement Date : 2 March, 2023

Jharkhand High Court

Babulal Singh @ Babulal Kumar ... vs The State Of Jharkhand on 2 March, 2023

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
            Cr.A. (DB) No. 90 of 2023
Babulal Singh @ Babulal Kumar Singh
                           ... ...      ...        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. A.K. Kashyap, Sr. Advocate For the State : Mrs. Kumari Rashmi, APP

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Order No. 03/Dated 2nd March, 2023 I.A. No. 1529 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 21.11.2022 and order of

sentence dated 07.12.2022 passed in Sessions Trial No. 80

of 2016 by learned Additional Sessions Judge, Garhwa

whereby and whereunder the appellant has been convicted

under Section 376 (1) and 417 of the Indian Penal Code

and sentenced for the offence punishable under Section

376 IPC to undergo rigorous imprisonment for 12 years

along with fine of 25,000/- (Ten Thousand) to be paid to

the prosecutrix and in default of payment of fine to undergo

additional S.I.; and sentenced to R.I. for one year along with

fine of Rs. 10,000/- to be paid to the prosecutrix for the

offence punishable under Section 417 of the Indian Penal

Code and in default of payment of fine to undergo

additional S.I. for two months. Both the sentences were

directed to run concurrently.

Mr. A.K. Kashyap, learned senior counsel for the

appellant has submitted that the judgment of conviction is

not based upon the cogent evidence since the learned trial

Court while convicting the appellant has not taken into

consideration that the P.W.-1, victim (prosecutrix), in her

testimony has deposed that the appellant had not

committed rape forcibly upon her. It has further been

deposed that the appellant lived together with the

prosecutrix and in the panchayat as alleged it was decided

that if the appellant would not solemnize marriage with the

victim, the appellant has to pay Rs. 5,00,000/-, as such the

present case, at best, is a case of consensual in nature

which does not attract the ingredient of Section 376(1) of

the Indian Penal Code. Learned senior counsel for the

appellant has submitted that no independent witness has

been examined.

Ms. Kumari Rashmi, learned Additional Public

Prosecutor, has submitted that that the appellant had

committed rape upon the prosecutrix in his house for more

than a year on false assurance of marriage and thereafter

refused to marry, 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 09.02.2023, 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. "