Angana & ANR. Vs.
State of Rajasthan  INSC 223 (6 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.221 OF 2009
(Arising out of SLP(Crl) NO. 8348 OF 2008) Angana & Anr. ..............
Appellants Versus State of Rajasthan ..............Respondent
appeal is directed against the order passed by the High Court of Judicature for
Rajasthan, Bench at Jaipur, in S.B. Cr. Misc. (SOS) Application No. 781/2008 in
Criminal Appeal No. 758/2008 dated 22.8.2008. By the impugned order, the High
Court while admitting the appeal has rejected the application seeking
bail/suspension of sentence filed by the appellant.
in brief are as follows; Complainant PW/2, namely, Bhobal submitted a written
report at police station on 6.3.1993, stating that on 6.3.1993, complainant and
other members were sleeping in the house when accused/appellants and others who
are acquitted, with the intention of stealing/looting and killing, came inside
the house. One Shanti heard some noise and started shouting. Listening to her
cries other members came out and saw that accused/appellants and other were
accused/appellants and other started assaulting them by gun fire and pelting
stones which in turn caused serious injuries to complainant and other.
Investigation was conducted and a case was registered under sections 147, 148,
149, 323, 452 and 307 of the IPC against fourteen persons on 6.3.1997 and was
committed to the Additional District & Session Judge, Deeg.
Accused/appellants and others have stated that in this case first information
report of the cross-case of this matter was lodged with the same police station
prior to the present incident, in which death of one Samunder Singh has been
caused. Also they argued that the first information report has been lodged by
the complainant falsely to be saved of that cross-case. Trial court after
hearing the parties convicted Angna and Chouthi for the charge under section
326 read with section 34 of IPC and acquitted them from all other charges and
all the other accused persons were acquitted vide judgment dated 24.7.2008.
Accused were awarded
sentence of four years rigorous imprisonment with a fine of Rs. 2000/-.
the accused persons being aggrieved by the said judgment have filed criminal
appeal before the Hon'ble High Court and also have filed criminal application
under section 389 Cr.P.C. for suspension of execution of sentence and for releasing
the accused/appellants on bail during pendency of the appeal.
learned counsel for the accused/appellants contended before the High Court that
in the personal defence, the accused fired the gun shot on the complainant and
the complainant also received injuries.
Further, the injuries
received by the complainant are not grievous in nature. It was stated that from
the side of the accused also, one person Samundar died on the spot due to
injuries inflicted by the complainant side. Because it was a free fight and in
private defence, the fire arm was used. It was further contended that during
trial, the accused appellants were on bail, therefore, looking to facts and
circumstances of the case, the sentence awarded to accused/appellants be
suspended during pendency of the appeal.
High Court while rejecting the application filed under Section 389 of Cr.P.C
has observed :- "Having heard rival submissions of the 3 respective
parties and upon careful perusal of judgment impugned, record of the case, more
particularly, medical report and statements of doctors, without expressing any
opinion on merits and demerits of the case stated that, the inevitable
conclusion is that the application seeking suspension of sentence deserves to
be rejected and thus, the bail/suspension of sentence application stands
by the impugned order passed by the High Court accused/appellants have come
before us seeking suspension of execution of sentence and for releasing the
appellants on bail during pendency of the appeal.
have heard learned counsel for the accused/appellants and learned counsel for
counsel for the appellants, submitted that High Court of Judicature at Jaipur
was not justified in not suspending the sentence of the petitioner and not
releasing them on bail during the pendency of the appeal by merely placing
reliance on the medical reports and statements of doctors. It is contended by
the learned counsel, that, High Court failed to consider the fact, that, during
trial, the appellants were on bail and have already undergone 6 months 26 days
and 2 months 24 days sentence respectively of their actual sentence. It is further
contended that the appeal pending before the High Court is in continuation of the
proceedings. It is argued that the complainants were the actual aggressors
causing injuries to several persons including appellants and created a false
and frivolous case against the appellants. It is also submitted that the High
Court ignored the testimony of the medical jurist and the medical reports, who
did not support respondent's case. It can be said that injuries caused to the
respondents are not of grievous nature caused by fire-arm. Therefore, learned
counsel would submit that the High Court erred in denying the suspension of
sentence or granting bail.
counsel for the appellants in support of his submissions has relied on the
decisions of this court. Reference to those decisions will be made while
discussing the issue canvassed by learned counsel for the appellants.
the instant case, an application under Section 389 of Cr.P.C. is filed for
suspension of sentence by a convict in a pending appeal.
The accused was on
bail when the matter was pending before the Sessions court. It is not the case
of the prosecution that the accused who is released on bail would abscond
during the pendency of the appeal. When an appeal is preferred against
conviction in the High 5 Court, the Court has ample power and discretion to
suspend the sentence, but that discretion has to be exercised judiciously
depending on the facts and circumstances of each case. While considering the
suspension of sentence, each case is to be considered on the basis of nature of
the offence, manner in which occurrence had taken place, whether in any manner
bail granted earlier had been misused. In fact, there is no strait jacket
formula which can be applied in exercising the discretion. The facts and
circumstances of each case will govern the exercise of judicial discretion
while considering the application filed by the convict under Section 389 of
Criminal Procedure Code.
Court in the case of Takhat Singh and Others vs. State of M.P., (2001) 10 SCC
463, has held that, "the appellants are already in jail for over three
years and 3 months. There is no possibility of early hearing of the appeal in
the High Court. In the aforesaid circumstances the applicants be released on
bail to the satisfaction of the learned Chief Judicial Magistrate,
can made to the decision of this court in the case of Kashmira Singh vs. State
of Punjab, (1997) 4 SCC 291, where this Court has observed that:
practice in this Court as also in many of the High Court has been not to
release on bail a person who has been sentenced to life imprisonment for an
offence under Section 302 of the Indian Penal Code. The question is whether
this practice should be departed from and if so, in what circumstances. It is
obvious that no practice howsoever sanctified by usage and hallowed by time can
be allowed to prevail if it operates to cause injustice. Every practice of the
Court must find its ultimate justification in the interest of justice. The
practice not to release on bail a person who has been sentenced to life imprisonment
was evolved in the High Courts and in this Court on the basis that once a
person has been found guilty and sentenced to life imprisonment, he should not
be let loose, so long as his conviction and sentence are not set aside, but the
underlying postulate of this practice was that the appeal of such person would
be disposed of within a measurable distance of time, so that if he is
ultimately found to be innocent, he would not have to remain in jail for an
unduly long period. The rationale of this practice can have no application
where the Court is not in a position to dispose of the appeal for five or six
years. It would indeed be a travesty of justice to keep a person in jail for a
period of five or six years for an offence which is ultimately found not to
have been committed by him.
Can the Court ever
compensate him for his incarceration which is found to be unjustified? Would it
be just at all for the Court to tell a person: `We have admitted your appeal
because we think you have a prima facie case, but unfortunately we have no time
to hear your appeal for quite a few years and, therefore, until we hear your
appeal, you must remain in jail, even though you may be innocent?' What
confidence would such administration of justice inspire in the mind of the public?
It may quite conceivably happen, and it has in fact happened in a few cases in
this Court, that a person may serve out his full term of imprisonment before
his appeal is taken up for hearing. Would a judge not be overwhelmed with a
feeling of contrition while acquitting such a person after 7 hearing the
appeal? Would it not be an affront to his sense of justice? Of what avail would
the acquittal be to such a person who has already served out his term of
imprisonment or at any rate a major part of it? It is therefore, absolutely
essential that the practice which this Court has been following in the past
must be reconsidered and so long as this Court is not in a position to hear the
appeal of an accused within a reasonable period of time, the Court should
ordinarily, unless there are cogent grounds for acting otherwise, release the
accused on bail in cases where special leave has been granted to the accused to
appeal against his conviction and sentence."
The Court going by
the said consideration held that:- "that so long as the Supreme Court is
not in a position to hear the appeal of an accused within a reasonable period
of time, the Court should ordinarily, unless there are cogent grounds for
acting otherwise, release the accused on bail where special leave has been
granted to the accused to appeal against his conviction and sentence.
consideration, however, is equally important and relevant. When a person is
convicted by an appellate court, he cannot be said to be an innocent person
until the final decision is recorded by the superior court in his favor. "
the case of Babu Singh vs. State of U.P., 1978 (1) SCC 579, it was observed,
that, the significance and sweep of Article 21 make the deprivation of liberty
a matter of grave concern and permissible only when the law authorising it is
reasonable, even-handed and geared to the goals of community good and State
necessity spelt out in Article 8
considerations I have set out as criteria are germane to the constitutional
proposition I have deduced. Reasonableness postulates intelligent care and
predicates that deprivation of freedom by refusal of bail is not for punitive
purpose but for the bi-focal interests of justice--to the individual involved
and society affected.
Emperor v. H.L. Hutchinson, AIR 1931 All 356, it was observed that:- "As
to the object of keeping an accused person in detention during the trial, it
has been stated that the object is not punishment, that to keep an accused
person under arrest with the object of punishing him on the assumption that he
is guilty even if eventually he is acquitted is improper. This is most
manifest. The only legitimate purposes to be served by keeping person under
trial in detention are to prevent repetition of the offence with which he is
charged where there is apparently danger of such repetition and to secure his
attendance at the trial. The first of those purposes clearly to some extent
involves an assumption of the accused's guilt, but the very trial itself is
based on a prima facie assumption of the accused's guilt and it is impossible
to hold that in some circumstances it is not a proper ground to be considered.
The main purpose however is manifestly to secure the attendance of the
the case of Bhagwan Rama Shinde Gosai v. State of Gujarat, (1999) 4 SCC 421,
this Court has stated that when a convicted person 9 is sentenced to a fixed
period of sentence and when he files an appeal under any statutory right,
suspension of sentence can be considered by the appellate court liberally
unless there are exceptional circumstances. The Court has observed :
"3. When a
convicted person is sentenced to a fixed period of sentence and when he files
an appeal under any statutory right, suspension of sentence can be considered
by the appellate court liberally unless there are exceptional circumstances. Of
course if there is any statutory restriction against suspension of sentence it
is a different matter.
Similarly, when the
sentence is life imprisonment the consideration for suspension of sentence
could be of a different approach. But if for any reason the sentence of a
limited duration cannot be suspended every endeavour should be made to dispose
of the appeal on merits more so when a motion for expeditious hearing of the
appeal is made in such cases. Otherwise the very valuable right of appeal would
be an exercise in futility by efflux of time. When the appellate court finds
that due to practical reasons such appeals cannot be disposed of expeditiously
the appellate court must bestow special concern in the matter of suspending the
sentence. So as to make the appeal right, meaningful and effective. Of course
appellate courts can impose similar conditions when bail is granted."
Delhi), (2001) 10 SCC
338, where the appellants had been convicted under Section 307 read with
Section 34 of the Indian Penal Code and each was sentenced to imprisonment for
a period of three years and to pay fine of Rs. 2000/-, when they moved an
application under Section 10 389 of Code of Criminal Procedure for suspension
of the sentence of imprisonment, the High Court had rejected the application.
This Court following the observations made in the case of Bhagwan Rama Shinde
Gosai, while allowing the appeal filed by the convict, had kept in abeyance the
order of conviction passed by the trial court till the disposal of the appeal
filed by the convict and also had directed the release of the convict on bail. has
indicated the factors that require to be considered by the courts while
granting benefit under Section 389 in cases involving serious offences like
murder etc., it is useful to refer to the observations made therein. They are
:- "4. Section 389 of the Code deals with suspension of execution of
sentence pending the appeal and release of the appellant on bail. There is a
distinction between bail and suspension of sentence. One of the essential
ingredients of Section 389 is the requirement for the appellate court to record
reasons in writing for ordering suspension of execution of the sentence or
order appealed against. If he is in confinement, the said court can direct that
he be released on bail or on his own bond. The requirement of recording reasons
in writing clearly indicates that there has to be careful consideration of the
relevant aspects and the order directing suspension of sentence and grant of
bail should not be passed as a matter of routine.
5. The appellate
court is duty-bound to objectively assess the matter and to record reasons for
the conclusion that the case warrants suspension of execution of sentence 11
and grant of bail. In the instant case, the only factor which seems to have
weighed with the High Court for directing suspension of sentence and grant of
bail is the absence of allegation of misuse of liberty during the earlier
period when the accused-respondents were on bail.
6. The mere fact that
during the trial, they were granted bail and there was no allegation of misuse
of liberty, is really not of much significance. The effect of bail granted
during trial loses significance when on completion of trial, the accused
persons have been found guilty. The mere fact that during the period when the
accused persons were on bail during trial there was no misuse of liberties,
does not per se warrant suspension of execution of sentence and grant of bail.
What really was necessary to be considered by the High Court is whether reasons
existed to suspend the execution of sentence and thereafter grant bail. The
High Court does not seem to have kept the correct principle in view."
19)The aforesaid view
is reiterated by this court in the case of Vasant Delhi), (2008) 5 SCC 230,
this Court after considering all the earlier decisions on the issue of
consideration of an application under Section 389 of the Code of Criminal
Procedure, has concluded, that in serious offences like murder, sentence would
generally be not suspended by court.
21)In the present
case, the appellants were on bail during the pendency of the case before the
Sessions Court. The Sessions Court has acquitted most of the accused persons
after trial except the appellants.
It is not the case of
the other side, that, when the accused were on bail they had indulged
themselves in any offence either under the provisions of Indian Penal Code or
any other Statute. It is also not the case of the prosecution that when the
appellants were on bail they had either jumped the bail or were any way
responsible for prolonging the proceedings before the Sessions Court, and it is
also not the case of the other side that they would abscond and would not be
available, to undergo the sentence if the appellate court affirms the order
passed by the Sessions Court.
consideration over all view of the matter and in particular offence alleged and
sentence imposed and further taking into consideration the acquittal of other
accused persons, who were also charge sheeted in the same offences as that of
the appellants and further taking into consideration the conduct of the
appellants during the trial before the Sessions Court when they were on bail,
in our view the High Court could have suspended the sentence and granted bail
to the appellants. Therefore, this Court would be justified under Article 136
of the Constitution in interfering with the discretion exercised by the High
Court. We, therefore, suspend the sentence and direct the appellants to be
released on bail on each one of them executing a bond with two solvent sureties
to the satisfaction of Additional District and Sessions Judge, Deeg.
23)The appeal is
disposed of, ordered accordingly.
[ TARUN CHATTERJEE ]
[ H.L. DATTU ]