ORDER Misc. Case No. 891 of 2010 18.3.2011 — Heard Mr. S. Mohapatra, learned counsel for the appellants, Mr. J. Pattnaik, learned Senior Advocate appearing for the informant and Mr. A.K. Mishra, learned Standing counsel for the State. In the appeal, after conviction the appellants, namely, Manoj Kumar Pradhan and Kalia @ Prafulla Mallick @ Pradhan (hereinafter referred to as “A-1 & A-2”) had filed an application under Section 389 Cr.P.C. for suspension of sentence and grant of bail. This Court on 7.7.2010 admitted the appeal and released both the appellants on bail with the condition that they shall not threaten the witnesses examined. 2.Being aggrieved, the informant challenged the said order dated 7.7.2010 before the apex Court so far as it related to A-1. The apex Court by order dated 25th January, 2011 passed in Criminal Appeal No. 225 of 2011 arising out of SLP (Crl.) No. 8173 of 2010 allowed the appeal and cancelled the bail granted to A-1 by this Court with further direction to hear the matter afresh. After cancellation of bail, A-1 surrendered before the trial Court and he was taken into custody. 3.Learned counsel appearing for A-1 submitted that after the assassination of Swami Laxmanananda on 23.8.2008 there was a riot between two groups of people throughout the district of Kandhamal. Due to such commotion, houses were burnt and law and order situation of the district was totally disturbed. While the situation stood thus, on 27.8.2008 at about 6 P.M. the deceased along with his wife (informant, i.e, P.W.6) and two daughters was going towards Bhanjanagar on a bi-cycle. At Barepanga main road, the rioters obstructed them and surrounded the deceased. The rioters threw the articles kept on the bi-cycle and called some persons of Tiangia, Budedipada over mobile phone to the spot. About 100 rioters arrived there and assaulted the deceased with deadly weapons. They dragged him to the road side by tying his neck with a rope, assaulted brutally and killed him. The mob set fire to the body by sprinkling kerosene. The informant escaped from the spot, came to the relief camp and lodged the FIR next day i.e. 28th August, 2008. After receiving the FIR, the case was registered and investigation started. A-1 who was in custody in other cases was taken on remand on 23.10.2008. The mob set fire to the body by sprinkling kerosene. The informant escaped from the spot, came to the relief camp and lodged the FIR next day i.e. 28th August, 2008. After receiving the FIR, the case was registered and investigation started. A-1 who was in custody in other cases was taken on remand on 23.10.2008. On completion of investigation, charge sheet was filed against both the appellants along with 18 other co-accused persons showing them as absconders. Charges were framed under Sections 147/148/341/342/302/201/149 IPC. After the case was committed to the Court of Session, during trial A-1 was released on bail by this Court on 12.10.2009 in BLAPL No.4995 of 2009. During trial, the prosecution examined 12 witnesses out of which P.W.4 and P.W.6 who are stated to be the eye-witnesses to the occurrence. 4.On assessment of the evidence on record, the trial Court while acquitting the appellants from the offence under Sections 302/149, 341/149, 342/149 and 201/149 IPC convicted them under Sections 147/326/149 IPC and imposed sentence to undergo R.I. for seven years and to pay fine of Rs.5000/- each for the offence under Section 326/149 IPC and to undergo R.I. for one year and to pay a fine of Rs.1000/- each for the offence under Section 147 IPC. 5.Learned counsel for A-1 further submitted that during trial, A-1 neither misutilised the liberty granted to him nor violated the conditions imposed on him while he was on bail. The informant has not named A-1 in the FIR as one of the rioters who were present at the spot. He also brought to the notice that the informant has also not stated before the I.O. that A-1 searched her husband on 25.8.2008 and asked the mob to kill him. Neither A-1 assaulted on the belly of the deceased nor did instigate the mob to set fire on the body. He further submitted that the occurrence took place at about 6 PM and the area where occurrence took place is surrounded by hills and big trees. As such, at that place normally evening sets in early and the light is not sufficient to identify individuals from the mob. That apart, there are material contradictions in the evidence of P.Ws. 4, 6 and 11. As such, at that place normally evening sets in early and the light is not sufficient to identify individuals from the mob. That apart, there are material contradictions in the evidence of P.Ws. 4, 6 and 11. There is every likelihood and possibility of A-1 being acquitted from the charges while the appeal will be heard on merits and the evidence will be scanned by the appellate Court. Lastly he submitted that the sentence imposed by the trial Court being fixed sentence and there is every likelihood that the appeal may not be heard in near future. Hence, A-1 may be released on bail. 6.Learned Standing Counsel appearing for the State raising objection to the prayer for bail of A-1 submitted that A-1 is the principal accused. There is ample material on record for conviction of A-1 who has a number of criminal antecedents. There is every possibility that he will tamper with the evidence in the cases where trial is going on. Therefore, bail should not be granted to him. 7.Learned counsel appearing for the informant supported the contentions of the learned Standing Counsel. He has also filed an affidavit wherein it is stated that there are twelve cases initiated against A-1 out of which four cases are pending and trial is not yet concluded. However, no material has been placed before this Court to show that A-1 tampered with the evidence or influenced any witness or protracted the trial during the period when he was on bail. 8.On the above submissions, at the outset this Court is to examine the case on the basis of the principles laid down by the apex Court while considering the application under Section 389 Cr.P.C. to grant bail. 9.In the case of Kashmira Singh v. The State of Punjab, AIR 1977 SC 2147 , the apex Court has held that every practice of the Court must find its ultimate justification in the interest of justice. 9.In the case of Kashmira Singh v. The State of Punjab, AIR 1977 SC 2147 , the apex Court has held that 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. 10.In Babu Singh and others v. The State of Uttar Pradesh, AIR 1978 SC 527 , the apex Court has held that the rationale of the practice can have no application where the Court is not 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 ?” Considering the said situation, the apex Court granted bail. 11.The apex Court in the case of Bhagwan Rama Shinde Gosai and others v. State of Gujarat, AIR 1999 SC 1859 , has held that when a convicted person is sentenced to fixed period of sentence and when he filed appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. In paragraph-3 of the said judgment, the apex Court has further held as follows: “3. When a convicted person is sentenced to fixed period of sentence and when he filed 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 limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when motion for expeditious hearing 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.” 12.The aforesaid view has also been adopted by the apex Court in the case of Angana & another v. State of Rajasthan, AIR 2009 SC 1669 . 13.The apex Court, in the case of Suresh Kumar and others v. State (NCT of Delhi), (2001) 10 SCC 338 , when an application under Section 389 Code of Criminal Procedure Code was moved for suspension of sentence of imprisonment, following the observation made in the case of Bhagwan Rama Shinde Gosai (supra), while allowing the appeal filed by the appellant before it, had kept in abeyance the order of conviction passed by the trial Court till the disposal of the appeal before the High Court filed by the convict and also had directed the release of the convict on bail. 14.In Babu Singh’s case (supra), the apex Court has held as follows: “What, then, is ‘judicial discretion’ in this bail context? In the elegant words of Benjamin Cardozo: “The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life’. Wide enough in all conscience is the field of discretion that remains.” 15.In the case of Surinder Singh @ Shingara Singh v. State of Punjab, 2005 Crl.L.J. 4119, the apex Court has held that the rule laid down in Dharmapal’s case may be inferentially understood to mean that unless a convict has undergone five years imprisonment, he should not be released on bail. This would again lead to travesty of justice, because in a given case having regard to the evidence on record and the reasoning of the Court convicting the accused, the High Court in an appeal may well be persuaded and justified in granting bail to the appellant even while admitting his appeal. 16.Therefore, from the above pronouncements of the apex Court, it is crystal clear that the law is well settled that 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 and grant of bail while considering whether reasons existed to pass such order. 17.In the present case, A-1 was on bail during trial and he has not indulged himself in any offence either under the provisions of the Indian INDIAN PENAL CODE or any other statute during such period. It is also not the case of the prosecution or informant that when A-1 was on bail he jumped the bail or was in any manner responsible for prolonging the proceeding or has influenced the witnesses in the cases in which the trial is pending. It is also not the case of the prosecution or informant that when A-1 was on bail he jumped the bail or was in any manner responsible for prolonging the proceeding or has influenced the witnesses in the cases in which the trial is pending. It is also not the case of the respondents that A-1 will abscond and will not be available to undergo sentence if the appellate Court confirms the order passed by the trial Court. 18.This Court has taken into consideration the overall view of the matter and in particular, the offence alleged, the sentence imposed, the fact that the co-accused has already been released on bail, the conduct of A-1 during trial and also the fact that he has already surrendered before the trial Court after cancellation of bail. 19.Considering the submissions of both the parties and on perusal of the LCR, it appears that the evidence touching upon the culpability of petitioner no.1 prima facie appearing to be in his favour. 20.For the foregoing reasons and relying on the decisions of the apex Court Kashmira Singh’s case (supra) and Angana’s case (supra), this Court is inclined to grant bail to A-1-Manoj Kumar Pradhan. Let A-1-Manoj Kumar Pradhan be released on bail on furnishing bail bond of Rs.20,000/- (rupees twenty thousand) with two sureties each for the like amount to the satisfaction of the learned Ad hoc Additional Sessions Judge, Fast Track No.1, Phulbani in Sessions Trial Case No. 174/64 of 2009 with the following conditions: “I)A-1 shall not indulge in similar type of offence during bail; II)he shall not tamper with the evidence or threaten the witnesses in the cases in which the trial is going on; and III)he will not leave the country without obtaining prior permission from the Curt.” Violation of any of the above conditions shall entail cancellation of bail. The Misc. Case is accordingly disposed of. Misc.Case disposed of.