Rajasthan High Court - Jodhpur

Indrajeet Singh vs State Of Rajasthan ... on 14 September, 2023

Bench: Pushpendra Singh Bhati, Kuldeep Mathur

[2023:RJ-JD:29685-DB]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Misc. 4th Suspension Of Sentence Application (Appeal) No. 573/2023 In D.B. Criminal Appeal No.999/2012

Indrajeet Singh S/o Shri Devendra Singh, Aged About 30 Years, B/c Rajput R/o 7-B Shiv Shakti Colony Ratanada Jodhpur (Presently Lodged At Central Jail Jodhpur)

----Petitioner Versus State Of Rajasthan

----Respondent

For Petitioner(s) : Mr. Dhirendra Singh, Sr. Adv. assisted by Mr. Jagdish Singh.

For Respondent(s) : Mr. Anil Joshi, GA cum AAG assisted by Mr. Rajat Chhaparwal.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI HON'BLE MR. JUSTICE KULDEEP MATHUR

Order

14/09/2023

1. Heard learned counsel for the parties on D.B. Criminal

Misc. 4th (Suspension of Sentence) Application

No.573/2023.

2. Mr. Dhirendra Singh, learned Senior Counsel assisted by Mr.

Jagdish Singh, appearing on behalf of the appellant has

straightway drawn the attention of this Court towards the fact that

the appellant has undergone the custody of 16 years, 08 months

and 04 days with remission.

2.1 Learned Senior Counsel has referred to the order dated

05.10.2021 passed by the Hon'ble Apex Court in Saudan Singh

[2023:RJ-JD:29685-DB] (2 of 6) [SOSA-573/2023]

Vs. The State of Uttar Pradesh : SLP (Crl.) No.4633/2021,

the operative portion of which, reads as follows:

"If we peruse the said suggestions, in our view, it will make the exercise of grant of bail even more cumbersome. The fact of the matter is that if an appeal is pending at the High Court stage and the convict has already undergone eight years of actual sentence, exceptions apart, in most cases bail would be the rule. Despite this the cases are not coming up for consideration. We are not clear as to how much time does it take for a bail application to be listed in such a case. There may be convicts who may not be able to have the requisites access to legal advice for moving the bail application. The High Court must explore whether in all cases where convicts have undergone a sentence of actual eight years, the convicts can be considered for grant of bail.

In these suggestions, there are some exceptions sought to be carved out which have been extracted as under:-

"1. Heinous nature of Crime :

(a) Prohibited categories: To ensure public peace and the well-being of the society, life convicts who are hardened criminals, repeat offenders, kidnappers, in crimes related to massacre (three or more than three murders), habitual criminals, and fall in prohibited categories as per the U.P. Jail Standing Policy - no bail should be granted."

We are also conscious of a scenario where an appeal comes up for hearing and the appellant may be seeking adjournment rather than arguing the appeal. That case certainly would not be one for grant of bail as the Court is willing to bestow consideration one the merits of the appeal.

We are also in agreement that the convict must approach the High Court first as otherwise this Court is being unnecessary burdened but then there must be a mechanism to see that if the approaches the High Court, those bail applications are listed promptly.

In the conspectus of our broad observations, it is incumbent on the High Court to place before us as to how they propose to see that the cases mentioned aforesaid are taken up for consideration for grant of bail.

We may note that there may be even convicts in custody in cases other than life sentence cases and in those cases again the broad parameter of 50 per cent of the actual sentence undergone can be the basis for grant of bail.

[2023:RJ-JD:29685-DB] (3 of 6) [SOSA-573/2023]

We grant four weeks' time to the High Court to place before us their policy strategy in this behalf.

We would not like to derail the consideration of all these matters pending before us and thus consider it appropriate that all these matters are placed before the Bench of the High Court promptly so that their bail applications are considered.

In order to facilitate further examination of this problem, a separate Suo Moto petition can be registered and placed before the Court for further directions.

The Registry to register the Suo Moto proceeding and place it before Court on 16th November, 2021.

The petitions listed before us for bail be transferred to the High Court of Allahabad to be taken up urgently.

List after four weeks."

2.2 Learned Senior Counsel further submits that the period in

consideration before the Hon'ble Apex Court was eight years of

custody whereas an exception has been carved out, in which, the

present appellant doesn't fall.

2.3 Learned Senior Counsel has further referred to the order

dated 11.08.2023 passed by a Division Bench of this Hon'ble Court

in Firoz Khan Vs. State of Rajasthan : D.B. Criminal Misc. 2 nd

Suspension of Sentence Application (Appeal) No.624/2023,

in which, the Division Bench has considered the facet of the

appeal not being in proximity of hearing in the extenuating

circumstances to support the matter falling under the ambit of

such judgment. The relevant portion of the order dated

11.08.2023 is produced hereunder:

"10. 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

[2023:RJ-JD:29685-DB] (4 of 6) [SOSA-573/2023]

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."

11. 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.

12. In the present case as observed herein-before, the appellant applicant has already undergone sentence for more than 11 years and 10 months 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.

13. 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, Firoz Khan S/o Sh. Mohammed Sahabir, during the pendency of the appeal.

14. 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 No.2, Jodhpur Metropolitan, in Session Case No.18/2015 against the appellant-applicant, namely, Firoz Khan S/o Sh. Mohammed Sahabir, 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 11.09.2023 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.

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

[2023:RJ-JD:29685-DB] (5 of 6) [SOSA-573/2023]

15. 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."

3. Mr. Anil Joshi, learned Government Advocate cum Additional

Advocate General assisted by Mr. Rajat Chhaparwal submits that

the deceased was a taxi driver and was taken away, and while the

taxi was looted, the taxi driver (deceased) was brutally killed, and

thus, the offence falls within the ambit of a heinous crime, but

however, he does not refute the custody with remission of 16

years 8 months and 4 days.

4. After taking into consideration the overall perspective

particularly, the orders of Saudan Singh's case (supra) and Firoz

Khan's case (supra) and while conjointly considering the facts of

the present case, the case does not fall within the exception

carved out in Saudan Singh's case (supra), looking into the fact

that the hearing of the appeal is likely to take long time, and most

importantly while taking into consideration the custody with

remission into consideration, this Court deems it appropriate to

suspend the sentence of the appellant in this case, at this stage.

5. Accordingly, D.B. Criminal Misc. 4th (Suspension of

Sentence) Application No.573/2023 filed under Sec.389

Cr.P.C. is allowed and it is ordered that the substantive sentence

passed by the trial court vide judgment dated 02.11.2012 in

Sessions Case No.17/2011 against appellant Indrajeet Singh

[2023:RJ-JD:29685-DB] (6 of 6) [SOSA-573/2023]

S/o Shri Devendra Singh shall remain suspended till final

disposal of the aforesaid appeal, 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 16.10.2023 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 months of January & July of every year till the appeal is decided.

2. That if the appellant 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.