Rajasthan High Court - Jodhpur

Jai Kishan vs State Of Rajasthan (2024:Rj-Jd:23893) on 23 May, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:23893]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                                No. 317/2024

Jai Kishan S/o Ira Ram, Aged About 37 Years, R/o Janguwas
Bhacharna, Police Station Luni, District Jodhpur. (Lodged In
Central Jail, Jodhpur)
                                                                    ----Petitioner
                                     Versus
State Of Rajasthan, Through Pp
                                                                  ----Respondent


For Petitioner(s)          :     Mr. R.K. Bishnoi
For Respondent(s)          :     Mr. Arun Kumar AGA



                HON'BLE MR. JUSTICE FARJAND ALI

Order

23/05/2024

1. The instant 2nd application for suspension of sentence has

been moved on behalf of the applicant in the matter of judgment

dated 20.04.2023 passed by the learned Additional Sessions

Judge No.4, Jodhpur Metropolitan in Sessions Case No.184/2018

whereby he was convicted and sentenced as under:-

Offence for Substantive sentence Fine and default which sentence convicted Section 452/34 Three years R.I. Fine of Rs.4,000/- and in IPC default of payment of fine, additional of 2 months R.I..

Section     323/34 One year's R.I.                      Fine of Rs.1,000/- and in
IPC                                                     default of payment of fine,
                                                        additional of one month's
                                                        R.I..
Section     307/34 Seven years R.I.                     Fine of Rs.10,000/- and in
IPC                                                     default of payment of fine,
                                                        additional of six months'R.I.

All the sentences were ordered to run concurrently.

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2. His first application for suspension of sentence was dismissed

as not pressed by this Court vide order dated 23.05.2023 being in

S.B. Criminal Misc. Suspension of Sentence Application

No.424/2023. Hence, the instant application for suspension of

sentence.

3. It is contended on behalf of the applicant that the learned

trial Judge has not appreciated the correct, legal and factual

aspects of the matter and thus, reached at an erroneous

conclusion of guilt, therefore, the same is required to be

appreciated again by this court being the first appellate Court. He

submits that applicant is behind the bars more than one and half

years. He placed reliance on the Petition(s) for Special Leave to

Appeal (Crl.) No(s) 2893/21 titled Manohar Lal Ainani Vs. State

of Rajasthan & Anr., wherein it was held vide order dated

15.11.2021 that looking to the prolonged custody period of the

petitioner, bail shall be granted to him in that matter. In another

landmark judgment of Satender Kumar Antil vs. Central

Bureau of Investigation and Ors. reported in AIR 2022 SC

3386, the aforesaid aspect has been reiterated. The petitioner is

on bail during trial and he has not misused the liberty so granted

to him. Hearing of the appeal is likely to take long time, therefore,

the application for suspension of sentence may be granted.

3. Per contra, learned public prosecutor has vehemently

opposed the prayer made on behalf of the accused-applicant for

releasing the appellant on application for suspension of sentence.

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4. Heard learned counsel for the parties and perused the

material available on record.

5. It is emanating from the record that the applicant is in

custody in this case for more than one and half years. Perusal of

the statement of P.W. 3 Ramniwas which would reveal that the

allegations against the petitioner and the other accused are

identical in nature to some extent. The sentence of co-accused

Purkha Ram has already been suspended by this Court vide order

dated 23.05.2023 passed in SB Crl. Misc. Suspension of Sentence

Application No.424/2023 and after that one year has lapsed but

there seems no hope for hearing the appeal on merits in near

future.

6. Hon'ble the Supreme Court has propounded guidelines on

the subject of bail in the case of Satender Kumar Antil (supra)

and has held as under:-

"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."

[2024:RJ-JD:23893] (4 of 5) [SOSA-317/2024]

(Emphasis Supplied)

7. Considering the overall facts and circumstances of the case

and looking to the fact that as some of the questions raised by the

learned counsel for the appellants deserves to be appreciated

again and if the same will be decided in his favour, he may get

acquittal; out of total 07 years of sentence he has served more

than one and half years of the sentence and looking to voluminous

pendency of the cases, there is no likelihood of hearing of the

appeal on merits in near future, thus, while refraining from

passing any comments on the niceties of the matter, this court is

of the opinion that it is a fit case for suspending the sentence

awarded to the accused appellant.

8. Accordingly, the second application for suspension of

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

ordered that the impugned order of sentence dated 20.04.2023

passed by the learned learned Additional Sessions Judge No.4,

Jodhpur Metropolitan in Sessions Case No.184/2018 against the

appellant-applicant Jai Kishan S/o Iraram 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 28.06.2024 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.

[2024:RJ-JD:23893] (5 of 5) [SOSA-317/2024]

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

(3) Similarly, if the sureties change their addresses, they will give in writing their changed address to the trial Court.

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 570-Mamta/-