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2013 DIGILAW 262 (KER)

Joseph @ Baby v. State of Kerala

2013-03-21

K.T.SANKARAN, M.L.JOSEPH FRANCIS

body2013
Judgment :- K.T. Sankaran, J. 1. The appellants in the Criminal Appeals filed the present applications under Section 389(1) of the Code of Criminal Procedure to suspend the execution of the sentence passed against them in Sessions Case No.187 of 1999 on the file of the Court of Session, Kottayam. 2. Forty accused persons were tried before the Court below for the Offences punishable under Sections 120-B, 363, 365, 366(A), 368, 372,373,376,376(2)(g) read with Section 109 and 34 of the Indian Penal Code. Accused No.3 in the charge sheet (Dharmarajan) absconded while on bail and the case against him was split up. The case against Dharmarajan was separately tried as Sessions Case No.241 of 2001. 3. The trial court acquitted accused Nos. 23, 26, 32 and 36. The case against accused No.40 abated. The trial court convicted the rest of the accused in S.C.No.187 of 1999 and they were sentenced to undergo imprisonment for terms ranging from four years to thirteen years and also fine. The trial court in S.C.No.241 of 2001 found the accused (Dharmarajan) guilty and he was sentenced to undergo life imprisonment. 4. The details regarding the rank and name of the accused, conviction and sentence in S.C.No.187 of 1999 (in respect of the applicants) are shown below: 5. Challenging the conviction and sentence in S.C.No.187 of 1999, the accused persons filed Criminal Appeals before this Court. Dharmarajan filed Crl.A.No.877 of 2002 challenging the conviction and sentence in S.C.No.241 of 2001. All the Criminal Appeals were disposed of by a Division Bench of this Court as per the judgment dated 20th January 2005. This Court acquitted the accused in S.C.No.187 of 1999 and reduced the sentence imposed on Dharmarajan. 6. The State filed Criminal Appeals before the Supreme Court challenging the judgment passed by the Division Bench of this Court. The Supreme Court set aside the judgment of this Court and remanded the cases to the High Court for fresh disposal. The Supreme Court held thus: “After hearing learned senior counsel appearing for the parties, we find a lot of force in the submission of the learned counsel for the State of Kerala. The Supreme Court set aside the judgment of this Court and remanded the cases to the High Court for fresh disposal. The Supreme Court held thus: “After hearing learned senior counsel appearing for the parties, we find a lot of force in the submission of the learned counsel for the State of Kerala. By the impugned common judgment, the High Court has acquitted the 35 respondents who had been convicted in Sessions Case No.187 of 1999 only on the basis of evidence led in Sessions Case No.241 of 2001 after arriving at a finding that the prosecutrix may not have been an unwilling partner to the sexual intercourse with the accused and the High Court does not appear to have considered the evidence in Sessions Case No.187 of 1999. What the High Court has failed to appreciate is that a Prosecutrix may be a willing partner in an intercourse with the one accused in Sessions Case No.241 of 2001, but she may not be a willing partner in intercourse with the 35 other accused in Sessions Case No.187 of 1999. Whether she consented to an intercourse will ultimately depend on the facts of each case. The High Court to have considered the facts of each case and decided the appeals in accordance with law and in the absence of such consideration by the High Court, it will not be proper for us to decide on the culpability of each of the respondents-accused in these appeals. We, therefore, set aside the impugned common judgment of the High Court and remand the matters back to the High Court for fresh disposal in accordance with law”. 7. The Supreme Court noticed that while allowing the Criminal Appeals filed by the accused, the High Court had discharged the bail bonds executed by the accused. The Supreme Court issued the following directions in the judgment: “We find that the High Court, while allowing the appeals of the respondents and acquitting them, has discharged the bail bonds which were executed pursuant to the orders passed by the High Court granting bail to the respondents during the pendency of the appeals. Since the bail bonds stand discharged, it will be open for the respondents to make fresh prayers for bail before the High Court and if advised, the respondents may file such bail applications before the High Court within four weeks from today. Since the bail bonds stand discharged, it will be open for the respondents to make fresh prayers for bail before the High Court and if advised, the respondents may file such bail applications before the High Court within four weeks from today. If such bail applications are filed by the respondents, the High Court will consider the same on their own merits in accordance with law.” 8. The Supreme Court also made it clear in the judgment as follows: “We make it clear that we have not expressed any opinion on the merits of these cases and any observations made by us in this order will not influence the High Court in deciding the appeals afresh in accordance with law. We, however, request the High Court to expedite the hearing and disposal of the appeals within six months from today.” 9. Accused Nos.1 to 3, 5, to 7,9 to 18, 20 to 22, 24, 25, 27, 28, 30, 31, 33 to 35 and 37 to 39 have filed the present applications under Section 389(1) of the Code of Criminal Procedure. It is submitted by the counsel that accused Nos.4, 8, 19, and 29 are no more. 10. Dharmarajan (appellant in Crl.A.No.877 of 2002) has not filed any application for suspending the execution of sentence or for granting bail. The learned Director General of Prosecution submitted that Dharmarajan was absconding and recently he was arrested and he is now in prison. 11. The learned counsel for the applicants submitted that the accused have appeared before the High Court after remand and filed the applications under Section 389(1) of the Code of Criminal Procedure to suspend the execution of the sentence. The counsel also contended as follows: Most of the accused were arrested during 1996, except two or three accused who were absconding. The accused were released on bail by the trial court and they were on bail throughout the trial. When the trial court convicted and sentenced them, the accused persons were sent to jail. Without delay, the accused filed Criminal Appeals before the High Court and applied for suspending the execution of the sentence. This Court, by the order dated 22.9.2000, suspended the execution of the sentence and the accused were released on bail on their executing bond for Rs.25,000/- each with two solvent sureties each for the like amount to the satisfaction of the trial court. This Court, by the order dated 22.9.2000, suspended the execution of the sentence and the accused were released on bail on their executing bond for Rs.25,000/- each with two solvent sureties each for the like amount to the satisfaction of the trial court. The accused were also directed to deposit 50% of the fine amount or Rs.10,000/- whichever is less. The accused were interdicted from leaving the country without the permission of this Court and they were directed to appear as and when required. Another condition in the order dated 22.9.2000 was that the accused shall not involve themselves in any crimes and they shall not cause any annoyance to the peaceful life of PW3 (the prosecutrix) and her family in any manner. It is submitted that twelve years elapsed and there is no case for the prosecution that the accused (except Dharmarajan) violated any of the conditions of granting bail. Custody of the accused is not needed at all for the purpose of disposal of the cases. 12. A detailed objection was filed by the State Public Prosecutor under the first proviso to Section 389(1) of the Code of Criminal Procedure. It was contended therein that for the purpose of moving for bail in terms of the order of the Supreme Court, the accused must be in confinement. A person praying for bail must be under some sort of restraint. The accused cannot move for bail without surrendering themselves before the court of competent jurisdiction. They can claim bail under Section 389(1) of the Code of Criminal Procedure only if they are in confinement and not otherwise. The Supreme Court fixed a period of six months for the disposal of the Criminal Appeals filled by the accused. There will be no delay in disposal of the appeals and, therefore, the accused cannot claim suspension of sentence as of right. The offence committed by the accused in grave in nature and “the manner in which the heinous crime was perpetrated on the victim girl and the serious social consequences resulted following the said crime etc., are to be taken into consideration.” Since the trial court found the accused guilty, they cannot claim the benefit of presumption of innocence. There is no exceptional circumstance for suspending the execution of the sentence. The accused cannot claim bail in absentia. There is no exceptional circumstance for suspending the execution of the sentence. The accused cannot claim bail in absentia. That the accused obeyed the conditions of bail is not a ground for suspending the execution of the sentence. The accused are not entitled to any discretionary relief. 13. Reply affidavits were filed in some of the cases. In the reply affidavit, it is averred, inter alia, as follows. “5. The averment in Paragraph 4 of the objection that it is trite law that for the purpose of moving for bail in terms of the order of the Honourable Supreme Court the petitioner must be in confinement, is not factually and legally correct and hence denied. First of all a plain reading of the order of the Supreme Court would disclose that the Supreme Court has not stipulated in its order that the petitioner should surrender before the trial court or before the High Court before moving for bail. It cannot be presumed that the Supreme Court was not aware about the law or has overlooked the same. On the other hand, the fact that the Supreme Court has not directed the petitioner to surrender before moving for bail despite the position being canvassed before the Supreme Court clearly and positively indicates that the Apex Court only wanted the petitioner and others to move a fresh application for suspension of the execution of their sentence and execute fresh bail bonds as the previous bail bonds executed by the petitioner and other during the pendency of the appeal were already discharged on account of their acquittal in the appeal. Therefore it is submitted that for moving for bail “in terms of the order of the Honourable Supreme Court” the petitioner need not be in confinement at all.” 14. In the reply affidavit, it is also contended that Section 389 of the Code of Criminal Procedure nowhere stipulates or contemplates that the convicted person must be in confinement, before the Appellate Court exercise the power under sub-section (1). On the contrary, the words “and, also, if he is in confinement, that he be released on bail, or on his own bond” occurring in sub-section (1) of Section 389 of the Code of Criminal Procedure would make it clear that the section can be invoked by persons who are not in confinement as well. On the contrary, the words “and, also, if he is in confinement, that he be released on bail, or on his own bond” occurring in sub-section (1) of Section 389 of the Code of Criminal Procedure would make it clear that the section can be invoked by persons who are not in confinement as well. Releasing on bail of the person in confinement is the natural consequence and the result of suspension of execution of the sentence and is such case, the convicted person would be released either on bail or on his own bond. Section 389 of the Code of Criminal Procedure is not a “parallel provisions to that of Section 437 or Section 439 for the grant of regular bail for those who are in custody”. It is also contended that the normal rule is that whenever an accused person is convicted for a specified term, the execution of the sentence would be suspended on the convicted person filing appeal, except in exceptional circumstances. No exceptional reasons exist in the present case warranting denial of an order for suspension of execution of the sentence imposed on the accused. During the trial stage and during the pendency of the appeals, the accused were on bail and there is no change of circumstance. There is no case for the prosecution that the accused, whose applications are under consideration, ever violated any of the terms of the order granting bail. It is contended that the Supreme Court had set aside the order of acquittal only on technical grounds and it was made clear in the judgment itself that the Supreme Court had not expressed any opinion on the merits of the case and the judgment of the Supreme Court would not influence the High Court in deciding the appeals afresh in accordance with law. If the Appellate Court considers that remand of the cases to the trial court for fresh disposal is required, there would be further delay in disposing of the cases and that is also a ground for suspending the execution of the sentence till the disposal of the Criminal Appeals before the High Court. 15. The learned Director General of Prosecution submitted that the order granting bail does not get revived and the order suspending the sentence also does not get revived after the judgment of the Supreme Court. 15. The learned Director General of Prosecution submitted that the order granting bail does not get revived and the order suspending the sentence also does not get revived after the judgment of the Supreme Court. The present position is that the appellants/accused are persons who were convicted and sentenced for serious offences and therefore, the applicants are to be dealt with as if they are moving for bail for the first time. The learned Director General of Prosecution also submitted that the sentence was suspended by the High Court at the time of filing the appeals, taking into account the delay that would likely to occur in the matter of disposal of the appeals. Since the Supreme Court has directed the High Court to dispose of the appeals within six months, there is no chance of any delay being caused in the disposal of the appeals and, therefore, the applicants/accused cannot claim suspension of execution of the sentence. It is submitted that the amendment made to Section 389 of the Code of Criminal Procedure by Act 25 of 2005 would also indicate that suspension of sentence is not a matter of course. The applications are to be dealt with on the merits of each case. The learned Director General of Prosecution relied on the decisions in State of Maharashtra v. Madhukar Wamanrao Smarth ( AIR 2008 SC 1793 ); State of Haryana v. Hasmat ( AIR 2004 SC 3936 ); Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) (2008 Crl.L.J.3524); Kishori Lal v. Rupa and others (AIR 2005 SC 1481); Vinay Kumar v. Narendra and Others ((2002) 9 SCC 364); Dr. Shailedra Kumar Tamotia v. Republic of India (2010 Crl.L.J.196); K.C. Sareen v. C.B.I., Chandigarh ( AIR 2001 SC 3320 ); Ramji Prasad v. Rattan Kumar Jaiswal and another (2000 Crl.L.J.4992 (SC)); The State of Gujarat v. Govindlal Manilal Shah (AIR 1966 Gujarat 146) and Niranjan Singh and another v. Prabhakar Rajaram Kharole and others ( AIR 1980 SC 785 ). 16. In Niranjan Singh and another v. Prabhakar Rajaram Kharole and others ( AIR 1980 SC 785 ), the brother of the victim filed a private complaint against the accused for the offences under Sections 302,341, 395, 404 read with Section 34 and 120B of the Indian Penal Code. 16. In Niranjan Singh and another v. Prabhakar Rajaram Kharole and others ( AIR 1980 SC 785 ), the brother of the victim filed a private complaint against the accused for the offences under Sections 302,341, 395, 404 read with Section 34 and 120B of the Indian Penal Code. The learned Magistrate ordered an enquiry under Section 202 of the Code of Criminal Procedure, took oral evidence of the witnesses and non-bailable warrants were issued for productions of the accused. The accused moved the Sessions Court for bail and the applications was allowed. The High Court declined to interfere with the order. It was contended by the complainant that the accused persons were not in custody and therefore, they could not maintain an application for bail. It was held: “But here the position is different. The accused were not absconding but had appeared and surrendered before the Sessions Judge. Judicial jurisdiction arises only when persons are already in custody and seek the process of the court to be enlarged. We agree that no person accused of an offence can move the court for bail under S.439 Cr.P.C. unless he is custody.” The Supreme Court did not interfere with the order granting bail. The decision in Niranjan Singh and another v. Prabhakar Rajaram Kharole and others ( AIR 1980 SC 785 ) was in respect of an application for bail under Section 439 of the Code of Criminal Procedure, whereas in the present case, the applications are under Section 389(1) of the Code of Criminal Procedure. 17. In State of Maharashtra v. Madhukar Wamanrao Smarth ( AIR 2008 SC 1793 ) and Kishori Lal v. Rupa and others (AIR 2005 SC 1481), it was held that there must be sufficient reasons for granting an order of suspension of sentence. In State of Haryana v. Hasmat ( AIR 2004 SC 3936 ), the Supreme Court held that the fact that during the pendency of the appeal the accused was on parole and he did not misuse the liberties, is not a ground to suspend the execution of the sentence in a murder case. In Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) (2008 Crl.L.J.3524) also, the Supreme Court held that the fact that the accused did not misuse the liberty of his release on bail, does not per se warrant suspension of execution of the sentence. 18. In Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) (2008 Crl.L.J.3524) also, the Supreme Court held that the fact that the accused did not misuse the liberty of his release on bail, does not per se warrant suspension of execution of the sentence. 18. In Vinay Kumar v. Narendra and others ((2002) 9 SCC 364), the appeal arose out of an order passed by the High Court granting bail to a convicted person for the offence of murder, by a cryptic order stating that it was a fit cast for granting bail on the ground that the accused were on bail during the trial stage. The Supreme Court set aside the order on the ground that the High Court did not give any reason or indicate any exceptional circumstance for granting bail to the accused. It was held that while considering the prayer for bail in a case involving serious offence like murder punishable under Section 302 of the India Penal Code, the court should consider the relevant factors like the nature of the accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. 19. In Dr. Shailendra Kumar Tamotia v. Republic of India (2010 Crl.L.J.196), the Orissa High Court considered a case of stay of execution of the conviction. The case is clearly distinguishable since in the present case conviction is not sought to be stayed but only execution of the sentence is sought to be suspended. K.C.Sareen v. C.B.I., Chandigarh ( AIR 2001 SC 3320 ) is also a case where suspension of conviction (not sentence alone) was the relief sought for. 20. In Ramji Prasad v. Rattan Kumar Jaiswal and another (2000 Crl.L.J.4992), the Supreme Court held that suspension of sentence in a case involving murder can be made only in exceptional circumstances. 21. In The State of Gujarat v. Govindlal Manilal Shah (AIR 1966 Gujarat 146), the court was dealing with a case of anticipatory bail and that too under the Code of Criminal Procedure, 1898. We do not think that the principles laid down therein would be applicable to the present case. 22. Section 389(1) of the Code of Criminal Procedure reads as follows: “389. We do not think that the principles laid down therein would be applicable to the present case. 22. Section 389(1) of the Code of Criminal Procedure 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.” 23. The provisos in sub-section (1) of Section 389 were inserted by Act 25 of 2005. In view of the first proviso, the Public Prosecutor shall be given an opportunity for showing cause in writing before releasing the convicted person on bail or on his own bond, in respect of a case where the accused is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years. Sub-section (1) of Section 389 of the Code of Criminal Procedure empowers the court to suspend the execution of the sentence or order appealed against. If the convicted person is in confinement, the Appellate Court has the power to release him on bail or on his own bond. The Appellate Court has to record its reasons in writing while passing an order under sub-section (1) of Section 389 Cr.P.C. Section 389 applies even to a case where the convicted person is not in confinement. The Court by which the accused is convicted is also empowered to release the accused on bail, if the conditions in subsection (3) of Section 389 Cr.P.C. are satisfied. The Court by which the accused is convicted is also empowered to release the accused on bail, if the conditions in subsection (3) of Section 389 Cr.P.C. are satisfied. The release on bail of the convicted person under sub-section (3) is for a limited period to enable the convicted person to present appeal and obtain orders from the Appellate Court under sub-section (1). Subsection (3) also provides that so long as the accused is released on bail, the sentence of imprisonment shall be deemed to be suspended. In the present case, the ingredients of sub-section (3) are not attracted. Therefore, the Court by which the accused were convicted has no jurisdiction to suspend the sentence. The accused had, therefore, to remain in confinement and move the Appellate Court to suspend the execution of the sentence and to grant bail. That process took place in the year 2000 and the applicants/accused were released on bail after suspending the execution of the sentence. If the contention of the learned Director General of Prosecution is accepted, the applicants/accused have to surrender before Court or they should be sent to jail and only thereafter they could apply to suspend the execution of the sentence and to grant bail. We do not think that such a procedure is mandatory in the facts and circumstances of the present case. In view of the specific power given to the Appellate Court to suspend the execution of the sentence even in a case where the accused is not in confinement, the Appellate Court would have jurisdiction to pass an order under Section 389(1) of the Code of Criminal Procedure even without insisting that the applicants/accused should surrender and undergo imprisonment before the application for bail is considered. An application under Section 389 is to be distinguished from an application or bail under Section 437 or 439 of the Code of Criminal Procedure. Under Section 437 of the Code of Criminal Procedure, when any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail if the ingredients of the section are satisfied. Section 439 of the Code of Criminal Procedure empowers the High Court or Court of Session to direct that any person accused of an offence and in custody be released on bail. The pre-requisite for exercising the power under Section 437 is that the accused is arrested or detained without warrant or the accused appears or is brought before a Court other than the High Court or Court of Session. The pre-requisite for exercising the power under Section 439 is that the person accused of an offence must be in custody. Such a pre-requisite is not applicable to a case under Section 389(1) of the Code of Criminal Procedure. It is true that in a case where is Court which convicted the accused is not empowered under sub-section (3) of Section 389 of the Code of Criminal Procedure to release the accused on bail, necessarily the accused has to undergo confinement. In such cases, the Appellate Court would have power to release that person in confinement on bail. Under Section 389(1) of the Code of Criminal Procedure, the Appellate Court has the power to suspend the execution of the sentence and if the convicted person is in confinement, to release him on bail, or on his own bond. The words “and, also, if he is in confinement” would make it clear that in appropriate cases, the Appellate Court has jurisdiction to suspend execution of the sentence even if the convicted person is not in confinement. 24. In the present case, the Supreme Court directed that the appeals filed by the accused shall be disposed of within a period of six months from the date of the judgment of the Supreme Court. The Supreme Court also directed the accused to make fresh prayer for bail before the High Court and to file such Bail Applications within four weeks from the date of the judgment. They filed the applications within four weeks. The applicants entered appearance and, therefore, it is not necessary to issue notice to them as a consequence of the judgment of the Supreme Court. The Supreme Court directed the accused to file fresh Bail Applications since the High Court while allowing the appeals discharged the bail bonds executed by the accused. They filed the applications within four weeks. The applicants entered appearance and, therefore, it is not necessary to issue notice to them as a consequence of the judgment of the Supreme Court. The Supreme Court directed the accused to file fresh Bail Applications since the High Court while allowing the appeals discharged the bail bonds executed by the accused. In view of the direction to dispose of the appeals within six months and since the accused filed Bail Applications and entered appearance in the appeals, this Court was able to post the appeals for hearing on 2.4.2013. If the accused preferred not to appear, necessarily notice should be issued to them by the High Court, while will again cause delay in disposal of the appeals. The Supreme Court was also aware of the fact that the accused were on bail during the pendency of the appeals before the High Court. The Supreme Court made it clear that no opinion on the merits of the case was expressed. The High Court was also directed not to be influenced by any of the observations made by the Supreme Court in the judgment, while deciding the appeals afresh. 25. As already stated, the appeals are posted for hearing on 2.4.2013. It is seen from the judgment of the High Court, which was set aside by the Supreme Court, that the hearing continued for a period of two months. The learned counsel appearing for the accused submitted that they are ready for hearing of the appeals. An early disposal of the appeals would be possible in these circumstances. We do not think it proper and just to direct the accused to surrender in order to enable them to apply under Section 389(1) of the Code of Criminal Procedure. Since they are not in confinement, it would be sufficient to suspend the execution of the sentence. We are also of the view that it would not be just and proper to direct the accused to remain in jail till the disposal of the appeals, particularly when they were on bail during the trial stage and during the appellate stage. It would be sufficient if stringent conditions are imposed while granting an order under Section 389(1) of the Code of Criminal Procedure. It is true that the applicants were found guilty for offences which are very serious in nature. It would be sufficient if stringent conditions are imposed while granting an order under Section 389(1) of the Code of Criminal Procedure. It is true that the applicants were found guilty for offences which are very serious in nature. In the peculiar facts and circumstances of the case, it would not be just at all to hold that the applicants must remain in jail during the hearing of the appeals. For the aforesaid reasons, we allow the applications and suspend the execution of the sentence in S.C.No.187 of 1999 on the file of the Court of Sessions, Kottayam, until further orders, subject to the following conditions: a) The applicants shall deposit before the Court of Session, Kottayam, the full amount of fine imposed in them by the trial court, within a period of three weeks from today. If any of the applicants had not withdrawn the portion of the fine amount deposited by them as per the order dated 22.9.2000, such accused shall file an affidavit before the court below to that effect. b) The applicants shall not leave the State of Kerala without prior permission of this Court. c) The applicants shall surrender their passport before the court below. If any applicant is not a holder of an Indian passport, an affidavit to that effect shall be filed before the court below. d) Each of the applicants shall execute a bond for Rs.50,000/-(Rupees fifty thousand only) with two solvent sureties for the like amount to the satisfaction of the Court of Session, Kottayam. e) The applicants shall not indulge in any prejudicial activities. f) The applicants shall not cause any annoyance to the peaceful life of PW3 (the prosecutrix) and her family members in any manner whatsoever. g) If conditions (a), (c) and (d) are not complied with by any of the applicants within three weeks, the court below shall execute the sentence as against such applicant.