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2007 DIGILAW 1196 (MP)

SOHAIL ALI v. STATE OF MP

2007-11-20

S.R.WAGHMARE

body2007
Judgment S.R.Waghmare, J. ( 1. ) Heard on LA. No.6852/07 an application for early hearing. Counsel for appellant has stated that appellant who is an educated youth of 23 years of age is in jail since 27-8-2007 and it was urged by the counsel before me that the entire future of the appellant is likely to be ruined if the application for suspension of sentence is not considered early. Counsel also stated mat the accused appellant was granted bail by the trial Court and has not misused the same. ( 2. ) Counsel for the respondent/State Ms. Mamta Shandilya, has not expressed any objection regarding the early hearing of the matter. Looking to the urgency involved the application is allowed. ( 3. ) Heard on question of I. A. 6891/07 which is an application for suspension of sentence. Counsel for the appellant has urged that the appellant has full chance of success in the appeal and the accused has been falsely implicated in the matter. It is a case of affair of the heart since the Kumari Usha Bhagat, whom the accused is alleged to have abducted as her self on affidavit (Ex-D/7) stated that the accused was not in any manner responsible for her leaving her home. Further counsel relying on Air 1976 S.C. Pg 527 BabuSingh and others Vs. State ofU.P. urged that Apex Court has held the personal liberty of the accused was paramount importance and when the bail is refused the liberty is. "too precious a value, our constitutional system recognises under Art.21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary, may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. So deprivation of personal freedom, ephemeral or enduring must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the constitution. " ( 4. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. So deprivation of personal freedom, ephemeral or enduring must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the constitution. " ( 4. ) Further in para 16 the court held "reasonableness postulates intelligent care and predicates that deprivation of freedom, refusal of bail is not for punitive purpose but for bi-focal interests of justice to the individual involved and society affected." and for criteria germane to exercise of bail discretion was pointed out. ( 5. ) Counsel also relied on 2002 SCC Criminal 1043 Suresh Kumar and Others Vs. State of (NCT of Delhi) whereby the Apex Court had held that suspension of sentence should be ordered liberally in absence of any exceptional circumstances and when the sentence was for fixed period of imprisonment. The high Court had erred in refusing the suspension of sentence in absence of any exceptional circumstances. ( 6. ) Counsel urged that the accused appellant was not a common criminal as already stated by him and fully deserves the benefit of the suspension of sentence. Counsel also urged that in the light of Babusingh (Supra) any stringent condition could be imposed by this Court in the interest of justice on the young applicant and finally he also stressed that the trial Court had erred in holding and misreading the reference in the impugned order to the AIR manual 5th Edition 1989 Page 409, whereby the conviction was altered from offence under Section 366 of the IPC to under Section 363 of the IPC; stating that in the instant case offence under Section 365 of the IPC was not lesser offence as compared to Section 366 of the IPC and hence the trial Court had erred in convicting the accused under Section 365 of the I.P.C. without charging him under the same. ( 7. ) Counsel for the respondent on the other hand fully supported the judgment of the trial Court and stated that the appellant was not entitled to suspension since his previous conduct of persuing Usha Bhagat had been taken note by her parents and he had been reprimanded by them earlier. ( 7. ) Counsel for the respondent on the other hand fully supported the judgment of the trial Court and stated that the appellant was not entitled to suspension since his previous conduct of persuing Usha Bhagat had been taken note by her parents and he had been reprimanded by them earlier. She stated that the background of the applicant was fully considered by the learned Judge of the trial Court and hence conviction was for lesser offence under Section 365 of the IPC. ( 8. ) Considering the above submissions, I find that there is substance in the arguments advanced by the Counsel for the Applicant. The applicant is an educated youth aged approximately 24 years and has a bright future before him. Considering the record that the trial Court had keeping these facts in mind, granted bail to the applicant which has not been misused by him is a fact which cannot be blinked away or ignored. Also in the light of the observations made by the Apex Court in the matter of Babusingh (Supra) it is utmost importance that bi-focal interest of justice to the individual and the society affected must be kept in mind and in the instant case I find that the trial Court has convicted and charged him only under Section 365 and not under Section 363, 363 A, 506 or 34 of the IPC the other offences registered against him. ( 9. ) However, I disagree with the contention of the Counsel for the Applicant that offence under Section 365 of the I.P.C. is not lesser offence than one under Section 366 since the Apex Court in the matter of Faiyaz Ahmed- nd others Vs. State of Bihar AIR 1990 S.C.C 2147 clearly held thus:- "for the reasons stated earlier, we find that the accused were not liable to be convicted for the offecne under Section 366, IPC but of a lesser offence under Section 365 and 368, IPC". ( 10. ) Thus clinching, the issue, that offence under Section 365 is lesser offence to Section 366 of the IPC and thus there is no error as such in the judgment impugned regarding the alteration and conviction under Section 365 of the IPC as urged by the Counsel. It goes without saying that this observation shall not affect the mertis of the case. It goes without saying that this observation shall not affect the mertis of the case. Under the circumstances having bestowed my anxious consideration to the facts of the case and the evidence available on the record the application is allowed. The remaining part of the sentence shall remain suspended during the pendency of this appeal. ( 11. ) It is therefore, directed that the appellant be. released on bail subject to, payment of fine and executing a personal bond for Rs.25,000/-(Rs twenty five thousand) and a solvent surety to the like amount to the satisfaction of the Trial Court. It is also further directed that the appellant shall mark his presence at the concerned police station on every Sunday between 9. A.M. To 11. A.M. during the pendency of this appeal. ( 12. ) The accused shall abide all conditions enumerated under section 437 (3) of the Cr.P.C. C.c as per rules. Order accordingly.RAHUL