Jharkhand High Court
Md. Muzaffar Ansari @ Gobardhan ... vs The State Of Jharkhand on 16 March, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 330 of 2023
Md. Muzaffar Ansari @ Gobardhan Ansari ........... 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. Manoj Kumar Sah, Advocate
For the State : Mr. Sanjay Kumar Srivastava, A.P.P.
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th
03/Dated: 16 March, 2023
Heard learned counsel for the parties.
Admit.
Call for the Lower Court Records.
I.A. No.2467 of 2023
The instant application has been heard with consent of the learned
counsel for the parties which has been filed under Section 389(1) of the
Cr.P.C. seeking a direction of this Court to suspend the sentence in
consequence of the judgment of conviction and sentence dated 14th
February, 2023 passed in S.T. Case No.63 of 2012, whereby and whereunder
the appellant, namely, Md. Muzaffar Ansari @ Gobardhan Ansari has been
sentenced to undergo rigorous imprisonment for ten years with fine of
Rs.50,000/- for the offence under Section 376(1) of the I.P.C and in default
of payment of fine further he has to undergo rigorous imprisonment for one
year.
Mr. Manoj Kumar Sah, learned counsel appearing for the applicant (the
appellant to the memo of appeal) has submitted that there is no ingredient of
Section 376 of the I.P.C. under which the judgment of conviction has been
passed. According to the learned counsel appearing for the appellant as
would appear from the testimony of the witnesses that since the appellant
refused to marry with the victim, therefore, he has falsely been implicated.
While on the other hand, the learned A.P.P. by placing the finding
recorded by the learned trial court has submitted that the ground which has
been taken on behalf of the defence of solemnizing marriage has seriously
been disputed by the victim as would appear from her testimony. It has been
submitted that since the girl is minor having the age of 17 years as has been
assessed by the Medical Board and, as such, the learned trial court after
taking into consideration the nature of allegation to be serious has convicted
the appellant and as such it is not a fit case where the sentence is to be kept
in abeyance.
We have heard the learned counsel for the parties and gone through
the impugned judgment of conviction.
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 paragraphs 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 paragraphs 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 principle
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.
It is, thus, evident from the aforesaid proposition of law that the
reasons have to be germane to justify the grounds of suspension of
sentence. The mere fact that during trial the accused were granted bail and
there was no allegation of misuse of privilege of bail, is not of much
significance, as the accused had been found guilty on conviction. The mere
fact that during trial liberty of bail was not misused may not per se warrant
suspension of sentence on grant of bail. 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, "The Delhi High Court Legal Services Committee
would take up cases for those convicts who have undergone more than half
the sentence in case of fixed such sentences and examine the flexibility of
filing the bail application before the High Court."
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.
Having regard to the testimony of the victim (P.W.-3) being
corroborated by the medical evidence and the other witnesses as well as the
detailed reasons recorded by the learned trial court, this Court is of the
considered opinion that no ground for suspension of sentence is made out in
the present case.
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.
(Sujit Narayan Prasad, J.)
(Subhash Chand, J.)
Rohit Pandey/-
