Thokchom Dharma Singh @ Paul vs The State Of Manipur
2021 Latest Caselaw 214 Mani

                                                                   Page |1



                 IN THE HIGH COURT OF MANIPUR
                           AT IMPHAL

                       MC(Cril.A.) No. 28 of 2020
                       Ref:- Cril.A. No. 25 of 2019

        Thokchom Dharma Singh @ Paul, aged about 46
        years, S/o Th. Gouro Singh, resident of Andro
        Kharam Leikai, P.O. Yairipok, P.S. Andro, Imphal
        East District, Manipur-795149.

                                           -- -- -- Applicant/Appellant


                              - VERSUS-

      The State of Manipur
                                                  -- -- -- Respondent

BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the applicant :: Mr. S. Rajeetchandra, Adv.,

For the Respondent :: Mr. H. Samarjit,PP

Date of Hearing and reserving Judgment & Order :: 12.08.2021

Date of Judgment & Order :: 28.09.2021

JUDGMENT AND ORDER (CAV)

This petition has been filed by the petitioner

under Section 389 read with Section 482 Cr.P.C. seeking to

release him on bail pending the disposal of the criminal

appeal.

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2. By the judgment dated 29.05.2019 in Special

Trial (POCSO) Case No.3 of 2017, the learned Special Judge,

Imphal East, convicted the petitioner-first accused for the

offence under Section 10 of Protection of Children from Sexual

Offences Act, 2012 (for short "POCSO Act"), while acquitting

the second accused under Section 21(2) of the POCSO Act.

On 01.6.2019, the petitioner-appellant was produced before

the learned Special Judge, Imphal East and after hearing the

petitioner and his counsel, the petitioner was sentenced to

under to rigorous imprisonment for a period of 7 years and to

pay fine of Rs.50,000/- under Section 10 of the POCSO Act

and in default to undergo 6 months simple imprisonment. The

learned Special Judge also ordered that the said fine amount if

deposited, the same shall be given to the victim girl as

compensation. That apart, the learned Special Judge also

recommended for provision of victim compensation under

Section 357A of Cr.P.C. to the victim. The learned Special

Judge has also ordered the period which has already

undergone by the petitioner-appellant in the judicial custody

during the period of investigation as well as during the trial, if

any, shall be set-off from the sentence awarded.

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3. Aggrieved by the conviction and sentence

imposed on the petitioner, the petitioner has filed Criminal

Appeal No.25 of 2019 before this Court. Pending appeal, the

petitioner has filed the present petition seeking to enlarge him

on bail on medical grounds pending disposal of the appeal.

According to the petitioner, he requires good medical care and

attention for his ailment outside the jail and if he is released on

bail, he will never jump the bail and he will abide by all the

terms and conditions imposed by this Court.

4. The respondent State filed objection stating that

the trial Court after appreciating the evidences produced by

the prosecution as well as the defence side, convicted the

petitioner and sentenced him to undergo 7 years rigorous

imprisonment. It is stated that there is no immediate or urgent

medical emergency that the petitioner-appellant is suffering

from and his ailment, if any, can be taken care of by the

medical staff of the jail.

5. The learned counsel for the petitioner submitted

that the petitioner was on bail during trial and he had fully co-

operated in the trial by putting his personal appearance in

almost all the hearing dates fixed by the trial Court and he

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never violated any terms and conditions of his releasing on

bail during the whole proceedings of the trial. The learned

counsel would submit that the petitioner is a diabetic patient

and he requires constant medical care and attention for his

ailment. Furthermore, his health condition has worsened day

by day.

6. The learned counsel further submitted that

detention of the petitioner during pendency of the appeal is a

severe punishment to him and his family members and

therefore prays for bail and that the petitioner undertakes to

abide by the condition imposed by this Court in releasing him

on bail during the pendency of the appeal.

7. Per contra, the learned counsel for the State

submitted that in view of the gravity of the offence committed

by the petitioner, he cannot be released on bail pending

disposal of the appeal. He would submit that the petitioner, as

a matter of right, cannot seek bail and several other similar

factors need to be considered by the Court while granting bail

pending disposal of the appeal. In the case on hand, if the

Court considers the nature of offence, the petitioner is not

entitled to get the bail pending disposal of the appeal.

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8. The learned counsel for the respondent State

further submitted that a bare perusal of the medical papers

annexed with the bail application reveals that the medical

papers are stale and irrelevant papers as the same are dated

2016 and that there is no life threatening medical ailment that

the petitioner is stated to be suffering from. According to him,

there is no immediate or urgent medical emergency that the

petitioner is suffering from and thus prayed for dismissal of the

petition.

9. This Court considered the submissions raised by

both parties and also perused the materials available on

record.

10. It appears that the petitioner was convicted under

Section 10 of the POCSO Act and sentenced him to undergo 7

years of rigorous imprisonment and to pay fine of Rs.50,000/-,

in default to undergo 6 months simple imprisonment. The

judgment of the learned Special Judge is dated 29.5.2019 and

sentence was imposed on 01.6.2019 and from 29.5.2019

onwards, the petitioner was in jail

11. Section 389 Cr.P.C. provides:

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"389. Suspension of sentence pending the

appeal; release of appellant on bail - (1)

Pending any appeal by a convicted person,

the Appellate Court may, for reasons to be

recorded by it in writing, order that the

execution of the sentence or order appealed

against be suspended and, also, if he is in

confinement, that he be released on bail, or

on his own bond.

(2) The power conferred by this section on

an Appellate Court may be exercised also by

the High Court in the case of an appeal by

convicted person to a court subordinate

thereto.

(3) Where the convicted person satisfies

the court by which he is convicted that he

intends to present an appeal, the court shall, -

(i) Where such person, being on bail, is

sentenced to imprisonment for a term not

exceeding three years, or

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(ii) Where the offence of which such

person has been convicted is a bailable one,

and he is on bail, order that the convicted

person be released on bail unless there are

special reasons for refusing bail, for such

period as will afford sufficient time to present

the appeal and obtain the orders of the

Appellate Court under sub-section (1), and

the sentence of 'imprisonment shall, so long

as he is so released on bail, be deemed to be

suspended.

(4) When the appellant is ultimately

sentenced to imprisonment for a term or to

imprisonment for life, the time during which

he is so released shall be excluded in

computing the term for which he is so

sentenced."

12. In State of Maharashtra v. Madhukar

Wamanrao Smarth, reported in (2008) 5 SCC 721, the

Hon'ble Supreme Court held:

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"10. The parameters to be observed by the

High Court while dealing with an application for

suspension of sentence and grant of bail have

been highlighted by this Court in many cases. In

Kishori Lal v. Rupa [(2004) 7 SCC 638 : 2004

SCC (Cri) 2021] it was observed as follows:

(SCC p. 639, para 4)

"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

MC(Cril.A.) No. 28 of 2020 Ref:- Crl.A. No. 25 of 2019 Page |9

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."

The above position was reiterated in

Vasant Tukaram Pawar v. State of

Maharashtra [(2005) 5 SCC 281 : 2005

SCC (Cri) 1052].

11. It is true that the parameters to be applied

in cases where life or death sentence is

imposed, may not be applicable to other cases.

But, the gravity of the offence, the sentence

imposed and several other similar factors need

to be considered by the court. The fact that the

accused was on bail during trial is certainly not a

relevant factor. This position has been fairly

conceded by learned counsel for the

respondents. The reasons indicated by the High

Court for granting bail in our opinion do not

satisfy the parameters. It needs to be pointed

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out that the trial court considering the gravity of

the offence has directed the sentences to run

consecutively. This aspect has also not been

considered by the High Court. In the

circumstances, the impugned order in each case

is indefensible and deserves to be set aside

which we direct. But considering the fact that the

High Court had not applied correct principles it

would be proper for the High Court to reconsider

the matter and for that purpose the matter is

remitted to the High Court. Needless to say, the

High Court shall consider all the relevant

aspects and pass orders in accordance with law.

13. In Gajraj Yadav v. Rajendra Singh @ Deena

and others, reported in 2008 (7) Supreme 573, the Hon'ble

Supreme Court held:

"13. The parameters governing Section 389 of the

Code were highlighted in Kishori Lal v. Rupa [(2004) 7

SCC 638 : 2004 SCC (Cri) 2021], Vasant Tukaram

Pawar v. State of Maharashtra [(2005) 5 SCC 281 :

MC(Cril.A.) No. 28 of 2020 Ref:- Crl.A. No. 25 of 2019 P a g e | 11

2005 SCC (Cri) 1052] and Gomti v. Thakurdas [(2007)

11 SCC 160 : (2008) 1 SCC (Cri) 644] .

14. The High Court noted that except Girdhari other appellants (present respondents) were on bail during trial.

15. The order directing suspension of sentence and

grant of bail is clearly unsustainable and is set aside.

Learned counsel for the respondent-accused stated that

fresh applications shall be moved before the High Court.

In case it is done, it goes without saying, that the High

Court shall consider the matter in the proper perspective

in accordance with law.

14. In Sunil Kumar v. Vipin Kumar and others,

reported in (2014) 8 SCC 868, the Hon'ble Supreme Court

held:

"13. We have heard the rival legal contentions

raised by both the parties. We are of the opinion

that the High Court has rightly applied its

discretionary power under Section 389 CrPC to

enlarge the respondents on bail. Firstly, both the

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criminal appeal and criminal revision filed by

both the parties are pending before the High

Court which means that the convictions of the

respondents are not confirmed by the appellate

court. Secondly, it is an admitted fact that the

respondents had been granted bail earlier and

they did not misuse the liberty. Also, the

respondents had conceded to the occurrence of

the incident though with a different version.

14. We are of the opinion that the High Court

has taken into consideration all the relevant

facts including the fact that the chance of the

appeal being heard in the near future is

extremely remote, hence, the High Court has

released the respondents on bail on the basis of

sound legal reasoning. We do not wish to

interfere with the decision of the High Court at

this stage. The appeal is dismissed accordingly.

15. In Navjot Singh Sidhu v. State of Punjab and

another, reported in (2007) 2 SCC 574, the Hon'ble Supreme

Court held:

MC(Cril.A.) No. 28 of 2020 Ref:- Crl.A. No. 25 of 2019 P a g e | 13

"4. Before proceeding further it may be seen

whether there is any provision which may enable

the Court to suspend the order of conviction as

normally what is suspended is the execution of

the sentence. Subsection (1) of Section 389 says

that pending any appeal by a convicted person,

the appellate court may, for reasons to be

recorded by it in writing, order that the execution

of the sentence or order appealed against be

suspended and, also, if he is in confinement, that

he be released on bail, or on his own bond. This

sub-section confers power not only to suspend

the execution of sentence and to grant bail but

also to suspend the operation of the order

appealed against which means the order of

conviction. This question has been examined in

considerable detail by a three-Judge Bench of

this Court in Rama Narang v. Ramesh Narang

[(1995) 2 SCC 513] and Ahmadi, C.J., speaking

for the Court, held as under (para 19 of the

reports): (SCC p. 527)

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"19. That takes us to the question whether

the scope of Section 389(1) of the Code

extends to conferring power on the

appellate court to stay the operation of the

order of conviction. As stated earlier, if the

order of conviction is to result in some

disqualification of the type mentioned in

Section 267 of the Companies Act, we

see no reason why we should give a

narrow meaning to Section 389(1) of the

Code to debar the court from granting an

order to that effect in a fit case. The

appeal under Section 374 is essentially

against the order of conviction because

the order of sentence is merely

consequential thereto; albeit even the

order of sentence can be independently

challenged if it is harsh and

disproportionate to the established guilt.

Therefore, when an appeal is preferred

under Section 374 of the Code the appeal

is against both the conviction and

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sentence and therefore, we see no

reason to place a narrow interpretation on

Section 389(1) of the Code not to extend

it to an order of conviction, although that

issue in the instant case recedes to the

background because High Courts can

exercise inherent jurisdiction under

Section 482 of the Code if the power was

not to be found in Section 389(1) of the

Code. We are, therefore, of the opinion

that the Division Bench of the High Court

of Bombay was not right in holding that

the Delhi High Court could not have

exercised jurisdiction under Section 482

of the Code if it was confronted with a

situation of there being no other provision

in the Code for staying the operation of

the order of conviction. In a fit case if the

High Court feels satisfied that the order of

conviction needs to be suspended or

stayed so that the convicted person does

not suffer from a certain disqualification

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provided for in any other statute, it may

exercise the power because otherwise the

damage done cannot be undone; the

disqualification incurred by Section 267 of

the Companies Act and given effect to

cannot be undone at a subsequent date if

the conviction is set aside by the

appellate court. But while granting a stay

or suspension of the order of conviction

the Court must examine the pros and

cons and if it feels satisfied that a case is

made out for grant of such an order, it

may do so and in so doing it may, if it

considers it appropriate, impose such

conditions as are considered appropriate

to protect the interest of the shareholders

and the business of the company."

....

6. The legal position is, therefore, clear that an

appellate court can suspend or grant stay of

order of conviction. But the person seeking stay

of conviction should specifically draw the

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attention of the appellate court to the

consequences that may arise if the conviction is

not stayed. Unless the attention of the court is

drawn to the specific consequences that would

follow on account of the conviction, the person

convicted cannot obtain an order of stay of

conviction. Further, grant of stay of conviction can

be resorted to in rare cases depending upon the

special facts of the case.

16. In the instant case, the petitioner has filed the

present petition seeking to enlarge him on bail pending

disposal of the appeal on medical grounds. Therefore, now

the point that arises for consideration is whether the petitioner

is entitled to get bail pending disposal of the appeal on

medical grounds.

17. Section 389 Cr.P.C. 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 Cr.P.C. is the requirement for the appellate Court

to record reasons in writing for ordering suspension of

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execution of the sentence or order appealed. 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. In the case on hand, the petitioner has

pleaded that he is a diabetic patient and he requires constant

medical care and attention, which is not available in the jail.

Though the respondent State contended that there is no

immediate or urgent medical emergency that the petitioner is

suffering from and his ailment, if any, can be taken care of by

the medical staff of the jail, nothing has been produced by the

respondent State to prove that there was no life threatening

medical ailment and that the medical staff are giving good

medical treatment to the petitioner. Though no recent medical

records have been produced by the petitioner, since the

factum of petitioner's ailment has not been denied by the

respondent State, it would be appropriate to accept the plea of

the petitioner that he requires constant medical care and

attention.

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18. In the instant case, the learned counsel for the

petitioner has pointed out certain infirmities in the judgment

impugned. In the grounds of appeal also, the petitioner has

pointed out infirmities in the judgment of the learned Special

Judge. According to the learned counsel for the petitioner-

appellant, there are arguable points involved in the appeal.

19. Considering the given facts and circumstances of

the case; taking note of the fact that there are arguable points

involved in the appeal as contended by the learned counsel for

the petitioner; the appeal is not likely to be taken up for final

hearing in the near future; the petitioner was in jail for more

than two years after conviction; the petitioner needs medical

care and attention for his ailment and also the undertaking

given by him that he will abide by the conditions imposed by

this Court, this Court is satisfied in granting the relief of bail

pending disposal of the appeal.

20. Accordingly, the petition is allowed and the

petitioner is directed to be enlarged on bail on condition that

he shall execute a bond for a sum of Rs.50,000/- (Rupees fifty

Thousand only) with two sureties each for a like sum to the

satisfaction of the learned Special Judge (POCSO), Imphal

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East, Manipur, and, on further condition that the petitioner

shall appear before the said Court on the first working day of

every month at 10.30 A.M. without fail. The petitioner shall not

leave the place of his residence without prior permission of the

Trial Court and shall ordinarily reside at a place of his

residence.

21. It is made clear that this Court granted bail

pending disposal of the appeal purely on medical grounds and

during the bail period, the petitioner shall not indulge in any

criminal activities. If the petitioner indulges in any such

criminal activities pending disposal of the appeal, the

respondent State is at liberty to move an application for

cancellation of bail. Both the petitioner and the respondent

State are directed to cooperate for early disposal of the

appeal.

JUDGE

FR/NFR

Sushil

SHAMURAILA Digitally signed by SHAMURAILATPAM TPAM SUSHIL SUSHIL SHARMA Date: 2021.10.01 SHARMA 11:40:49 +05'30'

MC(Cril.A.) No. 28 of 2020 Ref:- Crl.A. No. 25 of 2019