Rajasthan High Court - Jodhpur
Hasmal Ali vs State Of Rajasthan ... on 17 May, 2023
Bench: Farjand Ali
[2023/RJJD/015683]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc 3rd Suspension Of Sentence Application
(Appeal) No. 1281/2022
IN
S.B. Criminal Appeal No. 1197/2018
Hasmat Ali S/o Shri Ameen Ali, Aged About 33 Years, R/o
Kritpura Badi Sadri Ps Badi Sadri Distt. Chittorgarh (Raj.)
(Lodged In Central Jail , Udaipur)
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Smt. Mobina W/o Late Amanat Ali, B/c Muslman Aged about
46, R/o Kirtipura, Badi Sardi, District Chittorgarh.
----Respondent
For Petitioner(s) : Mr. Kaluram Bhati
For Respondent(s) : Mr. Javed Gauri, PP
HON'BLE MR. JUSTICE FARJAND ALI
Order
17/05/2023
1. The instant application for suspension of sentence has been
moved on behalf of the applicant in the matter of judgment dated
26.09.2018 passed by the learned Special Judge, POCSO Act,
Chittorgarh in Special Sessions Case No.146/2016 whereby he
was convicted and sentenced to suffer maximum imprisonment of
11 years rigorous imprisonment under Section 5(l)/6 of POCSO
Act and lesser punishment under Section 366 of IPC.
2. Learned counsel for the accused-appellant submits that the
trial court has grossly erred in convicting and sentencing the
accused-appellant. The appeal has already been admitted for its
[2023/RJJD/015683] (2 of 5) [SOSA-1281/2022]
re-appreciation of the evidence and till date the appellant has
served almost 7 years and 7 months imprisonment therefore,
learned counsel for the appellant submit that the sentence
awarded to the accused-appellant may be suspended as the
hearing of the appeal may take long time to conclude. If the
appeal is not taken up then the very purpose of filing the appeal
would be frustrated by keeping the appellant in incarceration.
3. Per contra, learned Public Prosecutor has vehemently
opposed the prayer made on behalf of the learned counsel for the
applicant for releasing the applicant-appellant on application for
suspension of sentence. As per the custody certificate submitted
by learned Public Prosecutor, the petitioner has suffered
imprisonment for almost 7 years and 7 months.
4. Heard and perused the material available on record.
5. The second Suspension of Sentence Application came to be
dismissed by a coordinate bench of this Court vide order dated
15.02.2021. Now, almost more than two years have elapsed since
the dismissal of the aforesaid application and nothing has moved
further in the proceedings as well as there is no likelihood of
hearing of the appeal in near future. The accused-appellant is
behind the bars for almost 7 years and 7 months in total out of
the total sentence of eleven years.
6. Hon'ble the Supreme Court has propounded guidelines on
the subject of bail in the case of Satender Kumar Antil Vs.
Central Bureau of Investigation reported in (2021) 10 SCC
773, that looking to the long period of incarceration, the sentence
[2023/RJJD/015683] (3 of 5) [SOSA-1281/2022]
of the applicant deserves to be suspended. The relevant
paragraphs of the afore-mentioned judgment are as follows:-
"41. Sub-section (2) has to be read along with Sub-
section (1). The proviso to Sub-section (2) restricts the
period of remand to a maximum of 15 days at a time.
The second proviso prohibits an adjournment when the
witnesses are in attendance except for special reasons,
which are to be recorded. Certain reasons for seeking
adjournment are held to be permissible. One must read
this provision from the point of view of the dispensation
of justice. After all, right to a fair and speedy trial is yet
another facet of Article 21. Therefore, while it is
expected of the court to comply with Section 309 of the
Code to the extent possible, an unexplained,
avoidable and prolonged delay in concluding a
trial, appeal or revision would certainly be a factor
for the consideration of bail. This we hold so
notwithstanding the beneficial provision Under Section
436A of the Code which stands on a different footing.
42. ......
43. A suspension of sentence is an act of keeping the
sentence in abeyance, pending the final adjudication.
Though delay in taking up the main appeal would
certainly be a factor and the benefit available Under
Section 436A would also be considered, the Courts will
have to see the relevant factors including the conviction
rendered by the trial court. When it is so apparent that
the appeals are not likely to be taken up and disposed
of, then the delay would certainly be a factor in favour
of the Appellant.
44. Thus, we hold that the delay in taking up the main
appeal or revision coupled with the benefit conferred
Under Section 436A of the Code among other factors
ought to be considered for a favourable release on bail."
(Emphasis Supplied)
7. Considering the submissions advanced at bar and looking to
the totality of facts and circumstances of the case, while refraining
[2023/RJJD/015683] (4 of 5) [SOSA-1281/2022]
from passing any comments on the niceties of the matter and the
defects of the prosecution as the same may put an adverse effect
on hearing of the appeal, this court is of the opinion that it is a fit
case for suspending the sentence awarded to the accused-
appellant.
8. Accordingly, the 3rd application for suspension of sentence
filed under Section 389 Cr.P.C. is allowed and it is ordered that the
sentence passed by the learned Special Judge, POCSO Act,
Chittorgarh in Special Sessions Case No.146/2016 against the
appellant-applicant- Hasmat Ali S/o Shri Ameen Ali, 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/-with two sureties of Rs.25,000/- each to
the satisfaction of the learned trial Judge for his appearance in
this court on 20.06.2023 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.
2. That if the applicant changes 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 their address(s),they
will give in writing their changed address to the trial
Court.
[2023/RJJD/015683] (5 of 5) [SOSA-1281/2022]
9. 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 related 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 be taken into account for statistical purpose relating
to pendency and disposal of cases in the trial court. In case, the
said accused-applicant does not appear before the trial court, the
learned trial Judge shall report the matter to the High Court for
cancellation of bail.
(FARJAND ALI),J
83-Ashutosh/-
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