Rajasthan High Court - Jodhpur

Phoolshankar vs State Of Rajasthan ... on 11 May, 2023

Bench: Arun Bhansali, Rajendra Prakash Soni

[2023/RJJD/014675]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 266/2023 IN D.B. Criminal Appeal No.790/2017 Phoolshankar S/o Lalu, aged About 41 Years, Bhanwarkada, P.S. Bhungada, District Banswara (Raj.). (Presently Lodged in Central Jail, Udaipur).

----Petitioner Versus State of Rajasthan, through P.P.

----Respondent

For Petitioner(s) : Mr. Vineet Jain, Sr. Advocate assisted by Mr. Rajiv Bishnoi.

For Respondent(s) : Mr. R.R. Chhaparwal, P.P.

HON'BLE MR. JUSTICE ARUN BHANSALI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Order 11/05/2023

1. The appellant-applicant herein has been convicted and

sentenced as below vide judgment dated 3.5.2017 passed by the

learned Additional Sessions Judge, Banswara, in Session Case

No.27/2013:

     Offence               Sentence                                 Fine
148 IPC               1 year R.I.                Rs.1,000/- and in default of
                                                 which to further undergo one
                                                 month S.I.
341 IPC               1 month S.I.               Rs.200/- and in default of
                                                 which to further undergo 7
                                                 days' S.I.
302 IPC               Life Imprisonment Rs.5,000/- and in default of
                                        which to further undergo six
                                        months' S.I.
307 IPC               7 years R.I.               Rs.3,000/- and in default of
                                                 which to further undergo
                                                 three months' S.I.



 [2023/RJJD/014675]                     (2 of 5)                    [SOSA-266/2023]


427/149 IPC          1 year R.I.                  Rs.1,000/- and in default of
                                                  which to further undergo one
                                                  month S.I.
323 IPC              6 years R.I.                 Rs.500/- and in default of
                                                  which to further undergo 15
                                                  days' S.I.

2. The appellant-applicant has preferred the application for

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

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

bail. Earlier two applications seeking suspension of sentence were

dismissed as not pressed.

3. The only plea raised by learned counsel for the appellant-

applicant is that as the applicant is in custody for about 10 years

and there is no chance of hearing of the appeal in near future,

thus, 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. It is further submitted that sentences of other four co-

accused have already been suspended by Coordinate Benches of

this Court.

5. 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.

[2023/RJJD/014675] (3 of 5) [SOSA-266/2023]

6. Learned Public Prosecutor opposed the application for

suspension of sentence with the submission that as the appellant-

applicant has committed heinous offence, suspension of sentence

of such offender would send adverse message in the society.

However, he has not denied that the appellant-applicant has

already undergone sentence of about 10 years during trial and

after sentence.

7. We have considered the submissions made by learned

counsel for the parties and have perused the material available on

record.

8. Looking to the fact that criminal appeals pertaining to year

2008 also are pending for hearing, there is no likelihood of hearing

of the present appeal in near future.

9. 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."

10. 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

[2023/RJJD/014675] (4 of 5) [SOSA-266/2023]

appeals were pending at the High Court stage with exceptions

indicated therein.

11. In the present case as observed herein-before, the appellant-

applicant has already undergone sentence for about 10 years and

apparently, there are no chances of hearing of the present appeal

in near future. Except for the fact that the appellant-applicant was

involved in offence leading to his conviction for life, nothing has

been brought on record by way of extenuating circumstances for

denial of suspension of sentence.

12. Consequently, 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, Prabhu S/o Ladu, during the pendency of the appeal.

13. 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 learned Additional

Sessions Judge, Banswara, in Session Case No.27/2013 against

the appellant-applicant, namely, Phoolshankar S/o Lalu, 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 11.06.2023 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.

[2023/RJJD/014675] (5 of 5) [SOSA-266/2023]

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.

3. Similarly, if the sureties change his address(s) he will give in writing their changed address to the trial court.

14. The learned trial court shall keep the record of attendance of

the accused-applicant in a separate file. Such file be registered as

Criminal Misc. Case relating to original case in which the accused-

applicant was tried and convicted. A copy of this order shall also

be placed in that file for ready reference. Criminal Misc. file shall

not been taken into account for statistical purpose relating to

pendency and disposal of the cases in the trial court. In case the

said accused-applicant do not appear before the trial court,

learned trial Judge shall report the matter to the High Court for

cancellation of bail.