Karma Mahto vs The State Of Jharkhand
2023 Latest Caselaw 1050 Jhar

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI
             Cr. Appeal (DB) No.509 of 2017
                                         ------

Karma Mahto                              ....       ....   Appellant
                                Versus

The State of Jharkhand            ....        ....     Respondent

CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
        HON'BLE MR. JUSTICE SUBHASH CHAND
                   ------
        For the Appellant           : Mr. Pawan Kumar Pathak, Advocate
        For the State               : Mr. Saket Kumar, A.P.P.

                                   ------

11/Dated: 02.03.2023
Per Sujit Narayan Prasad, J.

I.A.No.1861 of 2023

The instant interlocutory application has been filed under Section

389 (1) of the Code of Criminal Procedure, 1973 for suspension of

sentence in connection with S.T. Case No.245 of 2010 arising out of

Sadar P.S. Case No.02 of 2010, corresponding to G.R. No.03 of 2010.

2. Learned counsel appearing for the appellant has submitted that

the prosecution has failed to prove his case since there is major

contradiction as would appear from the testimony of witnesses.

It has further been submitted that co-appellant, namely, Munku

Mahato has been granted bail by the coordinate Bench of this Court

vide order dated 16.06.2022 passed in Cr. Appeal (DB) No.508 of 2017.

Learned counsel appearing for the appellant has further

submitted that he has already remained in custody for more than 7 ½

years and as such, the instant application may be allowed.

3. While on the other hand, learned A.P.P appearing for the State

has submitted by referring to the order dated 01.08.2018 that the

application filed on earlier occasion by the appellant for suspension of

sentence has been withdrawn after having advanced some arguments.

He further submits that it is a case where the witnesses have

seen the commission of crime and the capability of the appellant, as

would appear from the testimony of P.W.4, P.W.5 and P.W.8 (informant).

Learned A.P.P. has further submitted that the submission which

has been made regarding the order having been passed with respect to

other co-accused person, namely, Munku Mahato who has been

granted bail by the coordinate Bench of this Court vide order dated

16.06.2022, but his case is entirely different, since, specific allegation

has been leveled against the said co-appellant who is having with the

Ballam and no injury said to have been found from the Ballam, as

would appear from the testimony of the Doctor.

Learned State Counsel, on the basis of the aforesaid ground, has

submitted that it is not a fit case where the sentence is to be kept in

abeyance.

4. We have heard the learned counsel for the parties and

appreciated the argument advanced on their behalf.

5. Before delving upon the issue, as to whether it is a fit case to

keep the sentence in abeyance, the reference of 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

32, 35 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 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.

36. In Vinod Singh Negi v. State of U.P. [Vinod Singh Negi v. State of U.P., (2019) 8 SCC 13 : (2019) 3 SCC (Cri) 262] , this Court set aside the impugned order [Umesh Sharma v. State of U.P., 2018 SCC OnLine All 5338] of suspension of sentence and grant of appeal as the order was devoid of reasons."

In view of the mandate of Section 389 of the Cr. P. C., the

principles 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.

6. Considering the submission made on behalf of the parties, this

Court, therefore, is not prima-facie satisfied with the prayer made in the

instant interlocutory application for keeping the sentence in abeyance.

7. Accordingly, the instant interlocutory application being I.A.

No.1861 of 2023 is dismissed.

8. The observation herein has been made prima facie only for the

purpose of consideration of suspension of sentence.

However, the rejection of the instant interlocutory application will

not come in the way of consideration of the issue on merit if the appeal

will be heard finally.

9. Let a copy of this order be forwarded to the appellant through the

concerned Jail Superintendent.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.)

Rohit/-