Babulal Singh @ Babulal Kumar ... vs The State Of Jharkhand
2023 Latest Caselaw 1394 Jhar

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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
                             -------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
           HON'BLE MR. JUSTICE SUBHASH CHAND
                             -------
For the Appellant      : Mr. A.K. Kashyap, Sr. Advocate
For the State          : Mrs. Kumari Rashmi, APP
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                         th
Order No. 05/Dated 29 March, 2023
Per: Sujit Narayan Prasad, J.

I.A. No. 786 of 2023

1. The application was heard on 02.03.2023 and this Court had

passed the following order:

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."

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 21.11.2022 and order of sentence dated 07.12.2022 passed in Sessions Trial No. 80 of 2016, be not kept in abeyance.

Such response be filed within two weeks.

Let this matter be listed on 23rd March, 2023.

2. This Court after having heard learned counsel for the appellant

has called upon the State to file objection, if any. Such direction was

passed by taking into consideration the submission put forth on behalf of

the appellant as would appear from the part of the order dated

02.03.2023, for ready reference, the same is being reproduced herein:

"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."

3. Objection in terms of the aforesaid order has been filed in the

Court and the same be taken on record.

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

appellant has submitted by referring to the different paragraphs of the

objection by advancing his argument that only the averment has been

made regarding the testimony of the witnesses.

So far as the conduct of the appellant is concerned, the

averment has been made at paragraph 13 of the said objection supported

by a communication issued under the signature of the Police Inspector -

cum- Officer in-Charge Bhandaria Police Station dated 22.03.2023

which contains about the conduct of the appellant while he was released

from the judicial custody. It has been submitted that there is no adverse

remarks regarding the conduct during the aforesaid period, rather, his

behaviour was good and as such there is no question of any adverse

social impact if he would be released on bail.

It has further been submitted that so far as the merit is

concerned, it would be evident from the testimony of P.W-1, Victim

(prosecutrix) who has deposed in her testimony that the appellant has not

committed rape forcibly upon her. It has further been deposed that

appellant lived together with the prosecutrix and in the panchayat as

alleged it was decided that the appellant would not solemnize marriage

with the victim, the appellant has to pay Rs.5,00,000/.

In the background of the aforesaid material available on record

the submission has been made that there is prima facie case available in

favour of the appellant for keeping the sentence in abeyance.

5. Regarding being had to the facts and circumstances of the facts

and circumstances of the case and taking into consideration the report of

the officer in-charge of the concerned police station this Court is of the

view that the sentence is deemed to be kept in abeyance during pendency

of the appeal and the appellant be released on bail during pendency of

appeal on furnishing bail bond of Rs.25,000/- (Twenty Five Thousand)

with two sureties of the like amount each, to the satisfaction of the learned

Additional Sessions Judge,V Garhwa passed in connection with Sessions

Trial Case No. 80 of 2016 arising out of G.R. Case No. 1589 of 2015 [

Bhandariya P. S. Case No. 38 of 2015].

6. Accordingly, I. A. No. 786 of 2023 stands allowed.

I.A. No.1529 of 2023

7. Learned senior counsel appearing for the appellant has

submitted that he is not pressing the I.A. No.1529 of 2023, since, the

same has been filed due to inadvertence.

8. Accordingly, I.A. No.1529 of 2023 is dismissed as not pressed.

9. It is made clear that any observation made herein will not

prejudice the case of the appellant on merit, since, the criminal appeal for

hearing is lying pending before this Court.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.)

Saket/-