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2013 DIGILAW 1074 (MP)

Suresh Chand Pathak v. State of M. P

2013-09-06

G.D.SAXENA, S.K.GANGELE

body2013
JUDGMENT G.D. Saxena, J. 1. This case is taken up today for hearing on the question of legality and sustainability of the order dated 4th March, 2013 staying sine die operation of the order dated 20-11-12 on I.A. No. 7337/12, granting bail to co-convict/appellant No. 2-Banti alias Nogendra at the time of consideration of the application (I.A. No. 9/13) seeking suspension of sentence moved on behalf of the another co-accused/appellant No. 3-Khemraj @ Khemu Pathak. 2. During the course of hearing on I.A. No. 9/13, Mukesh Pathak, who is complainant/son of the deceased Ramesh Chandra Pathak brought to the notice of this Court orally that in the premises of the Court, the accused/appellant No. 2-Banti @ Nogendra Pathak, who has been convicted in commission of murder of his father and sentenced to life imprisonment by the learned Trial Judge and whose sentence has been suspended by this Court in appeal and admitted to bail by order dated 20th November, 2012 with another person named Sunil Jaiswal, threatened him (Mukesh Kumar Pathak, the complainant) to keep himself away from the bail petition of another co-accused at the time of hearing. It may be mentioned here that the accused Banti @ Nogendra Pathak and his fellow Sunil Jaiswal self-presented before the Court and they repudiated the allegations as levelled against them. 3. After taking into account the allegations levelled by the complainant and their repudiation by the accused named above and after hearing the learned Public Prosecutor as well as the learned Counsel appearing on behalf of the accused/appellants, this Court by order dated 4th March, 2013 was pleased to issued the following: "Considering the facts of the case and the fact that the allegations are serious in nature, it is directed that the Superintendent of Police, Gwalior shall conduct an enquiry into the matter and submit his report within seven days before this Court. Upto the next date of hearing, appellant No. 2-Banti alias Nogendra, who was granted suspension of sentence, his suspension of sentence shall be kept in abeyance and he shall be sent to judicial custody and on next date of hearing, this Court shall pass appropriate orders." 4. Under the aforesaid directions, the Superintendent of Police, Gwalior conducted an enquiry after recording and considering the statements in the light of the criminal background of the accused Banti @ Nogendra Pathak. Under the aforesaid directions, the Superintendent of Police, Gwalior conducted an enquiry after recording and considering the statements in the light of the criminal background of the accused Banti @ Nogendra Pathak. The report so submitted by him mentions the following facts : -- "During enquiry, after recording the statements of persons necessary and on considering the previous crime history of Banti @ Nogendra Pathak, it is prima facie clear that the complaint made by complainant Mukesh Kumar Pathak is proved against the convict Banti @ Nogendra Pathak." 5. While considering the questions raised in the case, it is advantageous to quote the appellate power conferred under Section 389 of the Code, which reads as follows : -- "389. Suspension of sentence pending the appeal; release of appellant on bail. -- (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond : Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release : Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall, -- (i) Where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) Where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under subsection (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced. Specific provision has been made in the proviso (ii) to Section 389 (1) added by Code of Criminal Procedure (Amendment) Act, 2005 (25 of 2005), permitting the Public Prosecutor to file application for cancellation of bail in cases where the convict has been admitted to bail." 6. A reading of the above provision would show that the Appellate Court is empowered to order suspension of the execution of the sentence appealed against and if the accused be in confinement to release him on bail or on his own bond. So, the suspension of execution of sentence is within the realm of discretion of the Appellate Court for which reasons are to be recorded in writing while ordering suspension of execution of the sentence and releasing the accused on bail. In such cases, the Appellate Court is also supposed to consider the pros and cons of the matter before taking a decision in an application for suspension of execution of sentence. 7. Prior to amendment in Section 389 (1) Proviso (ii) above, there was no express provision for cancellation of bail for suspension of execution of sentence passed by the Trial Court during pendency of appeal. 7. Prior to amendment in Section 389 (1) Proviso (ii) above, there was no express provision for cancellation of bail for suspension of execution of sentence passed by the Trial Court during pendency of appeal. Later, considering that after suspension of execution of sentence, the bailed out convicts are involved in offences and unsocial activities, the Legislature deemed fit for amendment in the provision but no separate authority to file an application to other persons including the complainant has been provided under the above provisions for cancellation of bail provided for suspension of sentence awarded. So, provisions for cancellation of bail under Section 439 (2) of the Code of Criminal Procedure, 1973 will apply on application filed by Public Prosecutor for cancellation of bail in cases, where the convict has been admitted to bail. 8. Therefore, at this juncture, it would be relevant to reproduce the provisions for cancellation of bail of Section 439 (ii) of the Code of Criminal Procedure, 1973, which are as follow : -- "439. Special powers of High Court or Court of Session regarding bail. -- (1) A High Court or Court of Session may direct -- (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified : Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody." 9. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody." 9. It may be mentioned here that in the present case, no application against grant of bail and suspension of sentence passed on the application of the accused is moved, so the provisions as contemplated in Section 389, Proviso (ii) shall have no role to play. 10. It is true that on the date of hearing on severity of the allegations of the complainant, the order of suspension of sentence after granting bail was temporarily kept ineffective till next date of hearing or receipt of the report to be filed by the Superintendent of Police, Gwalior as directed but the bail was not cancelled. Therefore, the Prosecutor in that case shall always be with a liberty to move an application for cancellation of bail under Section 389 (1) Proviso (2) of Cr.PC against grant of bail or suspension of sentence to the accused, provided such an occasion arises in future or such grounds are made available to him. 11. However, considering the facts and circumstances of the present case and the dictum as laid down by Hon'ble the Apex Court in the case of Babu Singh Vs. State of U.P., AIR 1978 SC 527 , this Court is of the view that though the Appellate Court is empowered to impose condition for suspension of execution of sentence, while admitting the appeal, looking to the specific allegations as proved, it will be necessary that in addition to other conditions, which are already imposed further conditions should be imposed which shall be reasonable and shall be commensurate with or proportionate with the sentence imposed. It is true that it is the discretion of the Appellate Court to suspend the sentence with or without conditions. The nature and gravity of circumstances, the position and status of the accused with reference to the victim and the witnesses, the likelihood of the accused fleeing from justice of repeating the offence, of jeopardizing his own life being faced with the grim prospect of possible conviction in the case and of tampering with the witnesses are matters which have nexus to the consideration of the bail application. In that view of the matter, the Appellate Court is empowered to impose conditions while granting suspension of execution of sentence, which are to be reasonable and that shall be exercised judicially. Considering the said object with further fact that "personal liberty, deprived when bail is refused, is too precious" it is ordered that: -- (i) The appellant Banti @ Nogendra Pathak shall not live at his present place of residence because the residence of the appellant and the family of the deceased is adjacent to each other. The accused shall take a house in another locality for the purpose of his residence except Jwalapura Padav, Gwalior. (ii) The appellant Banti @ Nogendra Pathak or any person on his behalf shall not extend any threat nor make any contact with intent to threat to any member of the family including Mukesh Kumar Pathak. 12. Subject to furnishing the bond for complying with the aforesaid conditions before the Principal Registrar of this Bench by the appellant No. 2-Banti, the Principal Registrar shall issue necessary order of releasing the appellant Banti @ Nogendra Pathak in compliance of the directions of this Court order dated 20th November, 2012 from judicial custody. Ordered accordingly.