Mitu Pahan And Others vs State Of Odisha
2021 Latest Caselaw 12627 Ori

                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                    CRLMA No.263 of 2021

                 Mitu Pahan and others                    ....            Petitioners
                                                     Mr.Pulakesh Mohanty, Advocate

                                      -Versus-

                 State of Odisha                          ....          Opposite Party
                                             Mr. D.R. Parida, Addl. Standing Counsel


                          CORAM:
                          JUSTICE R.K. PATTANAIK

                                           ORDER

Order No.                                 07.12.2021

 01.        1.              This is an application under Section(s) 389 read with

439 Cr.P.C. pressed into service at the behest of the petitioners challenging the impugned order dated 04.09.2021 passed by the learned Additional Sessions Judge, Khallikote in Criminal Appeal No.4 of 2021 arising out of S.T. No. 28 of 2018 for having declined to exercise jurisdiction in order to suspend the sentences inflicted upon them and release on bail on the grounds, inter alia, that it is unjustified, arbitrary and untenable in law and therefore, deserves to be set aside in the interest of justice.

2. Heard learned counsel for the petitioners and learned counsel for the State.

3. In fact, the petitioners along with others were found guilty and convicted for offences punishable under Section(s) 147/148/324/326/307/452 and 149 IPC and sentenced to RI for seven years and Rs.10,000/- as fine with a default sentence in respect of Section 307 IPC and separate sentences for the rest, as is

// 2 //

made to reveal from the body of the judgment dated 3.5.2021 passed by the learned Assistant Sessions Judge, Khallikote in S.T. No.28 of 2018. It is further made to reveal that after the order of conviction, as aforesaid, the petitioners and other convicts filed Criminal Appeal No.4 of 2021 and in that, all of them moved an application to suspend the sentences imposed under Section 389 Cr.P.C. which was rejected by the learned court below under the impugned order dated 4.9.2021 for the stated reasons.

4. Being aggrieved of the order of rejection under Annexure-2, the petitioners have approached this Court seeking intervention and their release on bail on suspension of sentences.

5. An argument is advanced to the effect that there is a bright chance of success in the appeal and that apart, the liberty which was granted to the petitioners, as they were on bail during trial, was never misutilised and considering the same, the sentences ought to have been suspended by the learned court below and hence, the order of rejection dated 4.9.2021 is liable to be interfered with a consequential direction for their release on bail on suspension of sentences till disposal of Criminal Appeal No.4 of 2021.

6. The learned counsel for the State, on the contrary, contends that the learned court below has rightly refused to exercise the discretion and correctly declined to suspend the sentences pending disposal of the appeal and therefore, the impugned order dated 4.9.2021 needs no intervention.

7. In the impugned order dated 4.9.2021, the learned court below has made reference to some of the judgments of the Supreme Court on the point of suspension of sentence under

// 3 //

Section 389 Cr.P.C. prominent being the decision in the case of Sidharth Vasisth @ Manu Sharma Vrs. State (NCT of Delhi) reported in 2008 (5) SCC 230. Let us re-examine the settled position of law on the subject matter as discussed in the aforesaid decisions for better appreciation of the contentions of the learned counsel appearing for the respective parties.

8. In Manu Sharma case, the Supreme Court held and observed that an appellate Court on the premise that the person is guilty since convicted can still consider suspension of sentence by stating reasons therefor but in a case involving serious offence, like murder punishable under Section 302 IPC, the Court has to be circumspect while extending such benefit by considering the nature of accusation, the manner in which the crime was committed, gravity of offence and desirability of releasing the accused on bail, who stands convicted for such offence. In other words, according to the Supreme Court in the aforesaid decision, suspension of sentence which is a normal practice in respect of some cases but may be an exception, where the offence for which the accused is convicted is serious in nature. Learned court below also referred two more decisions of the Supreme Court in Bhagwan Rama Shinde Gosai and others Vrs. State of Gujarat : (1999) 4 SCC 421 and State of Maharastra through CBI Anti Corruption Branch, Mumbai Vrs. Balkrishna Dattatray Kumbhar : (2012) 53 OCR (SC) 1233 which is on suspension of conviction. In the considered view of this Court, the latter judgment is inapplicable to the present case as it does not relate to suspension of sentence which is on suspension of conviction rather for which criteria would be distinctly separate and also the considerations, while exercising the jurisdiction. In the former case, the Supreme Court held and observed that an appellate Court can liberally consider suspension

// 4 //

of sentence unless exceptional circumstances exist and especially when the sentence is life imprisonment, there may be different considerations and approach, but if for any reason, the sentence is for limited duration and cannot be suspended, an endeavour should be made to dispose of the appeal early, more so when, a motion for expeditious hearing is advanced and when the appellate Court finds it difficult in disposing of appeal at the earliest due to practical reasons, it must bestow special concern in the matter of suspending sentence. The above are the broad principles which are to be kept in mind, while considering suspension of sentence which have been reiterated in plethora of decisions of the Supreme Court apart from Manu Sharma case.

9. In the instant case, the maximum sentence which has been imposed on the petitioners is seven years and fine under Section 307 IPC. It is a case where the petitioners and other accused persons allegedly committed the overt acts and assaulted the victim and some others during the incident. It is revealed from the judgment of the learned Assistant Sessions Judge, Khallikote that the victim suffered grievous injuries on account of the alleged assault. The circumstances leading to the assault stand described in the body of the judgment dated 3.5.2021. The allegation was that all the accused persons as members of an unlawful assembly attacked the victim and others. The learned Assistant Sessions Judge, Khallikote acquitted nearly 24 accused persons and also the petitioners and other convicts for some of the offences after considering the evidence on record. However, as earlier stated, seven accused persons including the petitioners found guilty and convicted for some other offences besides Section 307 IPC and sentenced, accordingly. It appears to be a large scale attack involving 30 persons, who found to be part of an unlawful

// 5 //

assembly and undoubtedly, as a result of the assault, the victim suffered severance of his right hand and left leg. There is no denial to the fact that grievous injuries were received by the victim. But, it is alleged to be a combined assault. According to the learned court below, assault was carried out with brutality. There is an observation in the impugned order dated 4.9.2021 that considering the grounds in appeal memorandum, there appears no fair chance for the appellants to succeed. For that matter, the evidence on record are needed to be scrutinized and reappreciated for the purpose of confirmation as to the guilt of the petitioners and others which is an exercise, the learned appellate court would be required to undertake, while disposing of the appeal. It is reiterated that the facts and circumstances of the case in its entirety are to be taken cognizance of for the purpose of suspension of sentence. Of course at times, a Court is to consider the manner in which the offence was committed but it should not entirely be influenced by the grievous injuries caused as a result. So far as the present case is concerned, the maximum sentence is of seven years under Section 307 IPC. The criteria which are to be considered for a serious offence are stated precisely in the decision of Bhagwan Rama Shindhe Gosai case (supra) vis-à-vis offences of lesser degree. The petitioner was on bail during the trial as is revealed from the impugned order dated 4.9.2021. There is no material before the appellate court to show that the petitioners ever misutilised the liberty granted to them earlier. Of course, as per Manu Sharma case such cannot be held as a ground per se to suspend sentence and grant bail to the appellant. In fact, there is no straight jacket formula to be followed as to in what manner discretion to be exercised, while suspending sentence, which may differ from case to case. The learned court below concluded that since the

// 6 //

conviction is of recent one, the convicts may take revenge on the complainant and the situation in the village may flare up in the event the sentence is suspended. Such a conclusion may at times be an exaggeration or over assessment of a situation unless otherwise substantiated. In any case, the Court finds that the sentence is of seven years and all through the petitioners were on bail and such liberty was found never to have been misutilised by them during trial. Brutality of the assault may be a consideration but regard being had to the fact that a large number of persons participated in the assault and majority of whom were acquitted of the charges, to hold that there may not be a fair chance to succeed or an observation by referring to the appeal memorandum in that respect may not perhaps be appropriate at this juncture. Any kind of observation as to a fair chance of success or otherwise may lead to an impression of pre-judgment. Having said so, the Court is of the considered view that the sentence vis-à-vis the petitioners is required to be suspended till disposal of Criminal Appeal No.4 of 2021 and accordingly, it is ordered.

10. In the result, application under Section(s) 389 read with 439 Cr.P.C. filed by the petitioners stands allowed for the reasons discussed herein above. As a consequence, the sentence imposed on the petitioners is hereby suspended till disposal of Criminal Appeal No.4 of 2021. Resultantly, the petitioners are directed to be released on bail on such terms and conditions as would be fixed by the learned court below.

11. The CRLMA is accordingly disposed of.

(R.K. Pattanaik) Judge KC Bisoi