Leave granted.
The challenge herein is to the order dated
09.11.2021, whereby the High Court of Chhattisgarh at
Bilaspur has declined the prayer for suspension of
execution of sentence during the pendency of Criminal
Appeal No. 1219 of 2021.
The appeal aforesaid has been filed by the
petitioner-appellant against the judgment and order dated
24.09.2021 passed by the Additional Sessions Judge
(F.T.C.), Manendragarh, District Koriya, Chhattisgarh in
Special Criminal Case No. 15 of 2019.
The substance of the accusation against the appellant
had been that he kidnapped the 9-year-old victim from the
custody of her legal guardian and with intention to outrage
held her hand so as to forcefully take her to a place away
from road. It had been the prosecution’s case that the
victim got released her hand and ran while shouting.
The Trial Court found the appellant guilty and after
recording conviction awarded sentences as follows: -
Conviction Sentence
363 of Indian fine of R.500/-, in
Penal Code. default of payment
of fine additional
R.I. for 1 month.
354 of Indian fine of Rs.500/-, in
Penal Code. default of payment
of fine additional
R.I. for 1 month.
8 of the fine of Rs.500/-, in
Protection of default of payment
Children from of fine additional
Sexual R.I. for 1 month.
Offences
(POCSO) Act,
2012.
(All the sentences were directed to run
concurrently)
The submissions on behalf of the appellant before the
Appellate Court seeking suspension of execution of sentence
had been that the Trial Court had overlooked major
contradictions and omissions in the statements of
witnesses; and that he was on bail during the trial but did
not misuse his liberty and even after pronouncement of
judgment, he was granted bail for a limited period. It was
also submitted that the disposal of the appeal was likely
to take some time and, therefore, the appellant may be
released on bail.
The High Court has proceeded to reject the prayer for
suspension of execution of sentence with reference to the
deposition of the prosecutrix, who was nine years of age,
with its corroboration from the medical evidence. The High
Court, of course, made no comments on the merits of the
case but then, ordered that the appeal be listed for
hearing in due course.
Learned counsel for the appellant has submitted that
the High Court has taken too strict and stern view of the
matter and has failed to appreciate that the maximum
sentence of imprisonment awarded in this matter is of three
years and all the sentences are to run concurrently; and
the appellant had already served two months of imprisonment
until consideration of the prayer for suspension by the
High Court.
It is submitted that if further execution of sentence
is denied, the appellant is likely to serve out the entire
or substantial part of the sentence of imprisonment and,
thereafter, even if the Appellate Court would be persuaded
to reverse the order of conviction, the deprivation of
liberty for all this time could never be undone.
Learned counsel for the respondent, on the other
hand, has strenuously argued that for grant of suspension
of execution of sentence, special reasons were indeed
required in this case; and, with reference to the decision
of this Court in the case of Preet Pal Singh v. State of
U.P. & Anr.:(2020) 8 SCC 645 (particularly paragraphs 35
and 38 thereof), has argued that for no special and
compelling reason forthcoming in this case, the prayer for
suspension of execution of sentence has rightly been
rejected.
Having given anxious consideration to the rival
submissions and having examined the material placed on
record with reference to the law applicable, we are unable
to agree with the submissions made on behalf of the
respondent that, in this matter, where the maximum sentence
of imprisonment is of three years, the appellant ought to
be denied the concession of bail during the pendency of
appeal.
The observations in paragraphs 35 and 38 of the
decision in Preet Pal Singh (supra), as sought to be relied
upon by the learned counsel for the respondent, read as
under: -
“35. There is a difference between grant of bail
under Section 439 CrPC in case of pre-trial
arrest and suspension of sentence under Section
389 CrPC and grant of bail, post conviction. In
the earlier case, there may be presumption of
innocence, which is a fundamental postulate of
criminal jurisprudence, and the courts may be
liberal, depending on the facts and circumstances
of the case, on the principle that bail is the
rule and jail is an exception, as held by this
Court in Dataram Singh v. State of U.P.(2018) 3
SCC 22. However, in case of post-conviction bail,
by suspension of operation of the sentence, there
is a finding of guilt and the question of
presumption of innocence does not arise. Nor is
the principle of bail being the rule and jail an
exception attracted, once there is conviction
upon trial. Rather, the court considering an
application for suspension of sentence and grant
of bail, is to consider the prima facie merits of
the appeal, coupled with other factors. There
should be strong compelling reasons for grant of
bail, notwithstanding an order of conviction, by
suspension of sentence, and this strong and
compelling reason must be recorded in the order
granting bail, as mandated in Section 389(1)
CrPC.
38. In considering an application for suspension
of sentence, the appellate court is only to
examine if there is such patent infirmity in the
order of conviction that renders the order of
conviction prima facie erroneous. Where there is
evidence that has been considered by the trial
court, it is not open to a court considering
application under Section 389 to reassess and/or
re-analyse the same evidence and take a different
view, to suspend the execution of the sentence
and release the convict on bail.”
Significant aspect of the matter is that the
observations aforesaid have been made by the Court in
relation to a case where the accused was convicted, inter
alia, of the offence under Section 304-B IPC and was
awarded varying sentences, including that of life
imprisonment. Obviously, the observations aforesaid have to
be read with reference to the factual background and
context.
The relevant aspects of the present case are that the
maximum sentence awarded is of three years’ imprisonment.
As regards the requirement of special or compelling
reasons, noteworthy it is that one of the grounds urged
before the High Court on behalf of the appellant was that
looking to the term of sentence awarded, when the disposal
of the appeal is likely to take time, he may be ordered to
be released on bail.
The High Court, while referring to the basis of
conviction of the appellant, did not make any comment as
regards the fact that the maximum sentence of imprisonment
is of three years and that the hearing of appeal is likely
to take time. On the contrary, in the concluding part of
the order impugned, the High Court ordered that the appeal
be listed for hearing ‘in due course’.
Obviously, the High Court has not found the appeal
worth assigning a priority for hearing. That being the
position, if the appeal is to be heard only on its turn,
the likely scenario is that it would not be taken up for
hearing immediately by the High Court. If the appeal
remains pending in due course and the appellant by that
time serves out the sentence of imprisonment, and then, if
there be any possibility of his acquittal or any
modification of the conviction/sentence, the injury
suffered by him would be practically irreparable.
In our view, these aspects, in the given set of facts
and circumstances of the present case, are themselves of
the compelling reasons for suspension of execution of
sentence during the pendency of appeal. There does not
appear any other adverse reason to deny the relief to the
appellant, like any criminal antecedents before the
incident in question or any blame in the jail conduct.
In the overall circumstances, we are inclined to
order suspension of execution of the remaining part of the
sentence awarded to the appellant.
Accordingly, the appeal is allowed; execution of the
remaining part of the sentence awarded to the appellant is
ordered to be suspended during the pendency of appeal in
the High Court; and he is ordered to be released on bail on
such terms and conditions as may be imposed by the Trial
Court.
New Delhi; April 11, 2022.
Petition for Special Leave to Appeal (Crl.) No. 875/2022
(Arising out of impugned final judgment and order dated 09-11-2021 in IA No. 01/2021 passed by the High Court of Chhatisgarh at Bilaspur)
JEETU KHATIK Petitioner(s) STATE OF CHHATTISGARH Respondent(s)
Date : 11-04-2022 These matters were called on for hearing today.
CORAM :
For Petitioner(s) Dr. Sangeeta Verma, Adv.
Mr. Sameer Shrivastava, AOR
For Respondent(s) Ms. Asmita Singh, Adv.
Mr. Gautam Narayan, AOR
UPON hearing the counsel the Court made the following
Leave granted.
The appeal is allowed in term of the Signed Reportable Order.
Execution of the remaining part of the sentence awarded to the
appellant is ordered to be suspended during the pendency of appeal
in the High Court; and he is ordered to be released on bail on such
terms and conditions as may be imposed by the Trial Court.
(SHRADDHA MISHRA) (RANJANA SHAILEY) SENIOR PERSONAL ASSISTANT COURT MASTER (NSH)
(Signed Reportable Order is placed on the file)