Rajasthan High Court - Jodhpur

Kamal Kishore vs State Of Rajasthan ... on 24 August, 2023

Bench: Arun Bhansali, Rajendra Prakash Soni

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 117/2023 IN D.B. CRIMINAL APPEAL NO. 183/2022.

Kamal Kishore S/o Sukhdev, aged 30 Years, Resident of Ward No. 5, Naliya Bass Sujangarh, District Churu. (Presently Lodged At District Jail, Churu) ----Petitioner

Versus State of Rajasthan through PP

----Respondent

For Petitioner(s) : Mr. Pankaj Kumar Gupta. For Respondent(s) : Mr. B.R. Bishnoi, PP.

Mr. Devendra Mahalana, for the complainant.

HON'BLE MR. JUSTICE ARUN BHANSALI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Order 24/08/2023

1. The appellant-applicant herein has been convicted and

sentenced as below vide judgment dated 11.11.2022 passed by

the learned Additional Sessions Judge, Sujangarh, District Churu,

in Session Case No.29/2012:

      Offence               Sentence                                Fine
302 IPC             Life Imprisonment Rs.10,000/- and in default of
                                      which to further undergo
                                      three months' S.I..
376 IPC             Life Imprisonment Rs.10,000/- and in default of
                                      which to further undergo
                                      three months' S.I.
201 IPC             Seven      Years' Rs.1,000/- and in default of
                    imprisonment      which to further undergo
                                      one month S.I.

2. The appellant-applicant has preferred the application for

suspension of sentence under Section 389 Cr.P.C. for suspension

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of sentence during the pendency of the appeal and for release on

bail.

3. Although, the learned counsel for the appellant while

commencing his arguments requested to suspend the sentence

imposed upon appellant on the basis of various arguments

advanced on merit but he desired to limit his arguments solely to

the issue of long custody of the appellant and there being no

chance of hearing of the appeal in the near future. He contended

that in view of the directions of the Hon'ble Supreme Court dated

15.09.2022 in Sonadhar v. The State of Chhattisgarh : SLP (Crl.)

No.529/2021, the sentence of the applicant be suspended and he

be enlarged on bail.

4. Further submissions have been made that there are no

reasons and / or extenuating circumstances for denial of bail.

Submissions have also been made with reference to order dated

05.10.2021 in Saudan Singh v. The State of Uttar Pradesh : SLP

(Crl.) No.4633/2021, wherein also observations have been made

regarding grant of bail in the appeal at the High Court stage

except certain exceptions and that none of the exceptions are

applicable in the present case.

5. Learned Public Prosecutor assisted by the learned counsel for

the complainant have opposed the application for suspension of

sentence with the submission that the appellant has committed

heinous crime of murder after committing rape with an 10 years

old girl, therefore, suspension of sentence of such offender would

send an adverse message in the society. Narrating different

arguments, he contended to dismiss the application for suspension

of sentence on the basis of merit alone. However, he has not

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denied that the appellant-applicant has already undergone

sentence of more than 10 years and 11 months during trial and

after sentence. He has placed reliance on the principles

pronounced in following judgments:-

Sr. No. Details of Judgment

1. Kishore Bhadke Vs. State of Maharashtra 2017 171 AIC 182

2. Satender Kumar Antil Vs. Central Bureau of Investigation & Anr.

2022 0 AIR (SC) 3386

3. Om Prakash Sahni Vs. Jai Shankar Chaudhary & Anr. Etc. (Reportable) (Criminal Appeal Nos. 1331-1332 of 2023, decided 02.05.2023)

6. We have considered the submissions made by learned

counsel for the parties and have perused the material available on

record.

7. The Hon'ble Supreme Court in the case of Sonadhar (supra),

while dealing with SMW (Crl.) No.4/2021 pertaining to 'life

convicts in jail whose appeals are pending before the High Court'

inter-alia, issued the following directions:-

"We consider appropriate to issue directions in terms of the aforesaid suggestions to the Patna High Court and on a pari materia basis to even the other High Courts. However, in order to carry out this exercise, the data would have to be compiled of such of the persons who have been in custody for more than 10 years and more than 14 years, with these persons being considered for grant of bail pending appeal, if there is no chance of hearing of the appeal in the near future, unless there are reasons for denial of bail. We can understand if any of the parties is delaying the appeal itself but short of that, we are of the view that all persons who have completed 10 years of sentence and appeal is not in proximity of hearing with no extenuating circumstances should be enlarged on bail."

8. Prior to that in the case of Saudan Singh (supra) also

observations were made regarding grant of bail in cases where

convicts have undergone sentence for sufficiently long time and

appeals were pending at the High Court stage with exceptions

indicated therein.

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9. In the instant case, as observed herein-before, the appellant

has already undergone sentence for more than 10 years and 11

months and there is no possibility of appeal being heard within a

reasonable time. The reply filed by the State shows that nothing

adverse has been reported against the appellant and no such

antecedents of the appellant has been brought on record which

would make him ineligible for suspension of sentence. Applicant

has an arguable case. Moreover, he is not responsible for the

delay in disposal of the appeal. Except for the fact that the

applicant was involved in an offence leading to his conviction of

imprisonment for life, nothing has been brought on record by way

of extenuating circumstances for denial of suspension of sentence.

None of the judgments cited by learned counsel for the

complainant is such wherein suspension of sentence had been

rejected despite custody of applicant more than 10 years. Besides

the above, the orders in the case of Sonadhar (supra) and Saudan

Singh (supra) have also not been cited and considered.

10. Consequently, considering the long incarceration of the

appellant and having regard to the fact that there is no possibility

of the appeal being taken up for hearing as well as following the

order in the case of Sonadhar (supra) and observations made in

Saudan Singh (supra), without making any observations on merits

of the case, we are inclined to suspend the substantive sentence

of the appellant-applicant, namely, Kamal Kishore S/o Sukhdev

during the pendency of the appeal.

11. Accordingly, the instant application for suspension of

sentence filed under Section 389 Cr.P.C. is allowed and it is

ordered that substantive sentence passed by the learned

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Additional Sessions Judge, Sujangarh, District Churu, in Session

Case No.29/2012 on 11.11.2022, against the appellant-applicant,

namely, Kamal Kishore S/o Sukhdev, shall remain suspended till

final disposal of the aforesaid appeal and he shall be released on

bail, provided he executes a personal bond in the sum of

Rs.50,000/- each with two sureties of Rs.25,000/- each to the

satisfaction of learned trial Judge for his appearance in this Court

on 26.09.2023 and whenever ordered to do so till the disposal of

the appeal on the conditions indicated below:

1. That he will appear before the trial court in the month of January of every year till the appeal is decided.

2. That if the applicant change the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court.