Rajasthan High Court - Jodhpur

Babu Khan vs State Of Rajasthan ... on 2 September, 2024

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

[2024:RJ-JD:36190-DB]                   (1 of 6)                      [SOSA-1049/2024]


        HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                              JODHPUR
      D.B. Criminal Misc. 2nd Suspension Of Sentence Application
                        (Appeal) No. 1049/2024

Babu Khan S/o Fateh Mohammad, Aged About 47 Years, R/o
Vasani Khurd, Police Station Fatahnagar, District Udaipur.
(Lodged In Central Jail, Udaipur)
                                              ----Applicant
                              Versus
State Of Rajasthan, Through Pp
                                           ----Respondent


For Petitioner(s)            :     Mr. Pradeep Choudhary
                                   Ms. Sampati Choudhary
For Respondent(s)            :     Mr. C.S. Ojha, AGC


       HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

HON'BLE MR. JUSTICE MUNNURI LAXMAN Order

02/09/2024

1. The applicant-appellant herein has been convicted and

sentenced as below vide judgment dated 15.03.2019 passed by

learned Additional Sessions Judge No.1, Udaipur, Camp Mavli in

Sessions Case No.27/2013:-

       Offence              Sentence                                Fine
       302 IPC       Life Imprisonment             Rs.50,000/- and in default of
                                                   payment of fine to further undergo
                                                   three months' S.I.
       148 IPC           Two years' S.I.           Rs.1,000/- and in default of
                                                   payment of fine to further undergo
                                                   one month's S.I.
     323/149IPC         Six Months' R.I.           Rs.300/- and in default of payment
                                                   of fine to further undergo seven
                                                   days' S.I.
     324/149 IPC         One year's S.I.           Rs.500/- and in default of payment
                                                   of fine to further undergo 15 days'
                                                   S.I.
     452/149 IPC        Three years' S.I.          Rs.1,000/- and in default of
                                                   payment of fine to further undergo
                                                   one month's S.I.
     4/25 Arms Act       One Year's S.I.           Rs.1,000/- and in default of
                                                   payment of fine to further undergo
                                                   one month's S.I.



 [2024:RJ-JD:36190-DB]                   (2 of 6)                    [SOSA-1049/2024]

2. The applicant-appellant has preferred the application 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. First application for suspension of sentence of the applicant

was dismissed vide order dated 03.11.2020 passed by a

Coordinate Bench of this Court in D.B. Criminal Misc. Suspension

of sentence Application (Appeal) No.720/2020.

4. Learned counsel for the applicant-appellant submits that on

29.07.2012, a report was furnished at Police Station Fatehnagar,

Udaipur at about 07:15 PM, when the complainant and his family

members were at their home, the accused party attacked them

and in this attack, Siraj (one of the family members of the

complainant) received serious injuries and he had expired. He

further submits that the genesis of the whole dispute was a way,

which the complainant party was claiming going from the fields of

the accused party and the accused party had closed such way.

Learned counsel submits that the accused is in custody since

30.07.2012, which is reflected in Exhibit-29.

4.1 The only plea raised by learned counsel for the applicant-

appellant is that as the applicant has already undergone the

custody of more than 12 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.

[2024:RJ-JD:36190-DB] (3 of 6) [SOSA-1049/2024]

4.2. 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 passed by Hon'ble Apex Court 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 opposes the application for

suspension of sentence but is unable to show anything, which

could bring the matter out of the realm of the judgment rendered

in Saudan Singh (supra).

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 appeal is pertaining to year

2019 and is pending at the stage of hearing and that there is no

likelihood of the appeal being heard in near future.

8. The Hon'ble Supreme Court in the case of Saudan Singh

(supra) observed an exception, which could be a broad guideline,

which reads as follows :-

"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."

[2024:RJ-JD:36190-DB] (4 of 6) [SOSA-1049/2024]

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

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 of more than 12 years,

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

appeal in near future. Except for the fact that the applicant-

appellant 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.

[2024:RJ-JD:36190-DB] (5 of 6) [SOSA-1049/2024]

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 only on account of

the fact that more than 12 years' sentences has already been

undergone by the applicant-appellant, this Court deems it

appropriate to suspend the substantive sentence of the appellant-

applicant during the pendency of the appeal.

13. Accordingly, the instant application for suspension of

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

ordered that substantive sentence passed by learned Additional

Sessions Judge No.1, Udaipur, Camp Mavli in Sessions Case

No.27/2013 against the appellant-applicant Babu Khan S/o

Fateh Mohammad 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 learned trial

Judge for his appearance in this court on 07.10.2024 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.

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.