Jharkhand High Court
Shanti Bala Das @ Shanti Rani Bala ... vs The State Of Jharkhand on 2 March, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.A. (DB) No. 46 of 2023
Shanti Bala Das @ Shanti Rani Bala Das & Ors
... ... ... Appellants
Versus
The State of Jharkhand ..... ... ... Respondent
-------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
-------
For the Appellants : Mr. R.S. Mazumdar, Advocate
For the State : Mr. Satish Prasad, APP
------
Order No. 05/Dated 2nd March, 2023
I.A. (Cr.) No. 2148 of 2023
This interlocutory application has been filed on
behalf of appellant no. 2, namely, Dulal Kar, under Section
389(1) of the Code of Criminal Procedure for suspension of
sentence passed in consequence of the judgment of
conviction dated 19.12.2022 and order of sentence dated
21.12.2022 passed in Sessions Trial No. 189 of 2019 by
learned Additional Sessions Judge -III, Dhanbad whereby
and whereunder the appellants have been convicted under
Section 304B/34 of the Indian Penal Code and sentenced to
undergo rigorous imprisonment for ten years.
Mr. R.S. Mazumdar, learned senior counsel for the
appellants has submitted that the prayer for seeking
suspension of sentence has been sought for by the
maternal uncle, namely, Dulal Kar, who was living
separately to that of the victim as has been deposed by the
Investigating officer at paragraph 18 and 19 of his
testimony, which has been taken note of by the learned
trial Court and even in the impugned order and such
submission has been made that it is a fit case to keep the
sentence in abeyance.
Mr. Satish Prasad, learned Additional Public
Prosecutor, has submitted that learned trial Court taking
into consideration the intent of the legislature to eradicate
the evil practice of giving and taking dowry has imposed the
impugned punishment which calls for no interference.
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 24.02.2023, 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 19.12.2022 and order
of sentence dated 21.12.2022 passed in Sessions Trial No.
189 of 2019, be not kept in abeyance.
Such response be filed within two weeks.
Let this matter be listed on 22nd March, 2023.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Alankar/-
