Mukesh @ Kamlesh @ Malkesh vs State Of Rajasthan ...
2023 Latest Caselaw 7304 Raj

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

.....

D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 748/2023.

IN D.B. CRIMINAL APPEAL 11/2022.

Mukesh @ Kamlesh @ Malkesh son of Kana Ji @ Harji Hathila,

aged about 35 years, resident of Kathwara, District Dahod

(Gujarat).

(Lodged in District Jail, Chittorgarh).

----Petitioner Versus State Of Rajasthan through PP

----Respondent Connected With D.B. Criminal Misc Suspension Of Sentence Application (Appeal) No. 749/2023.

IN D.B. CRIMINAL APPEAL 11/2022.

Ramesh son of Harji Damor, aged about 36 years, resident of

Borimala, Garwadi Police Station, District Dahod (Gujarat)

(Lodged in Central Jail, Udaipur)

----Petitioner Versus State Of Rajasthan through PP

----Respondent

For Petitioner(s) : Mr. Jagatveer Singh Deora. For Respondent(s) : Mr. B.R. Bishnoi, PP.

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HON'BLE MR. JUSTICE ARUN BHANSALI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Order

18/09/2023

1. The appellants-applicants herein have been convicted and

sentenced as below vide judgment dated 17.11.2021 passed by

the learned Additional Sessions Judge, Begu, District Chittorgarh

in Session Case No.7/2021 (34/2013):

Offence Sentence Fine 449 IPC 10 years' S.I. Rs.50,000/- and in default of which to further undergo one year additional S.I. each 395 IPC 10 years' R.I. Rs.50,000/- and in default of which to further undergo one year additional S.I. each 397 IPC 7 years' S.I. Rs.50,000/- and in default of which to further undergo one year additional S.I. each 396 IPC Life Imprisonment Rs.50,000/- and in default of which to further undergo one year additional S.I. each

All the sentences were ordered to run concurrently.

2. The appellants-applicants have preferred the applications for

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

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

bail.

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

applicants is that as the applicants are in custody for over 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 sentences of the applicants be

suspended and they be enlarged on bail.

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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 opposed the application for

suspension of sentence with the submission that as the

appellants-applicants have committed heinous offence, suspension

of sentence of such offenders would send adverse message in the

society. However, he has not denied that the appellants-applicants

have already undergone sentence of over 10 years during trial and

after sentence.

6. We have considered the submissions made by learned

counsel for the parties and have perused the material available on

record.

7. 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.

8. 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

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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."

9. 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.

10. In the present case as observed herein-before, the

appellants-applicants have already undergone sentence for over

10 years and apparently, there are no chances of hearing of the

present appeal in near future. Except for the fact that the

appellants-applicants were involved in offence leading to their

conviction for life, nothing has been brought on record by way of

extenuating circumstances for denial of suspension of sentence.

11. 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 appellants-applicants,

namely, (1) Mukesh @ Kamlesh @ Malkesh S/o Kana Ji @ Harji

Hathila and (2) Ramesh S/o Harji Damor, during the pendency of

the appeal.

12. Accordingly, the instant applications for suspension of

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

ordered that substantive sentence passed by learned Additional

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Sessions Judge, Begu, District Chittorgarh, in Session Case No.

7/2021 (34/2013) against the appellants-applicants, namely, (1)

Mukesh @ Kamlesh @ Malkesh S/o Kana Ji @ Harji Hathila and (2)

Ramesh S/o Harji Damor, shall remain suspended till final disposal

of the aforesaid appeal and he shall be released on bail, provided

each of them 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 their appearance in this Court on

19.10.2023 and whenever ordered to do so till the disposal of the

appeal on the conditions indicated below:

1. That they will appear before the trial court in the

month of January of every year till the appeal is

decided.

2. That if the applicants change the place of

residence, they will give in writing their 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.

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

the accused-applicants 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

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

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

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

cancellation of bail.

(RAJENDRA PRAKASH SONI),J (ARUN BHANSALI),J

117 & 119-Mohan/-

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