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2014 DIGILAW 188 (KER)

M. K. Pradeepan @ Lambu v. State of Kerala

2014-02-28

B.KEMAL PASHA, V.K.MOHANAN

body2014
Judgment : Kemal Pasha. J. 1. The petitioner, who is the appellant, is the 31st accused in S.C. No.867/2012 of the Special Additional Sessions Court (Marad Cases), Kozhikode, who stands convicted under Section 201 IPC alone. The court below has chosen to impose a sentence of rigorous imprisonment for three years. The petitioner has come up with the prayer to get the execution of the sentence imposed on him, suspended. 2. We heard Sri.K.K.Raveendranath, learned counsel for the petitioner, and Sri.Asif Ali, learned Director General of Prosecutions, in extenso. 3. The learned counsel for the petitioner has pointed out that the petitioner was all along on bail during the trial stage and the sentence imposed on him was suspended by the court below under Section 389(3) Cr.P.C. It has been pointed out that the period of suspension is going to expire by this day. Therefore, we are constrained to take up the matter today itself. 4. The learned DGP has argued that the mere fact that the petitioner was on bail during the trial stage and that the sentence imposed on him was suspended by the court below when he was convicted and sentenced, does not ipso facto make him entitled to get his sentence suspended. The argument is that this Court has to take note of the seriousness of the acts alleged against the petitioner and the offence found against him by the trial court, while considering the suspension of the execution of the sentence, in the appeal. 5. It has come out that 11 other accused persons in the case, who were convicted and sentenced by the court below for various offences, including the offence under Section 302 IPC with the aid of Section 149 IPC as well as Section 120B IPC, have preferred altogether six more Criminal Appeals in the matter. So far, the State has not preferred any appeal. At the same time, during the course of his arguments, the learned DGP has pointed out that there is every likelihood from the part of the State also to file appeals. 6. We are not presently going into the merits of the case for considering this application as it may have some bearing on the disposal of those appeals. The learned DGP has invited our attention to the decision of this Court in Shefiq Youseph Vs. 6. We are not presently going into the merits of the case for considering this application as it may have some bearing on the disposal of those appeals. The learned DGP has invited our attention to the decision of this Court in Shefiq Youseph Vs. State of Kerala [2009 Crl.L.J.3148] rendered by one among us (V.K.Mohanan, J.), wherein it was held that the order passed by the trial court suspending the sentence under Section 389(3) Cr.P.C. cannot be treated as a 'fitness certificate' for the concerned accused to get the execution of the sentence suspended automatically in appeal, by the appellate court. Going through the facts of that case, that particular accused, who had approached this Court in the said decision for getting the sentence suspended, was convicted and sentenced for serious offences including the offence of gang rape on a nursing student at an educational institution, under the guise of ragging. 7. The learned DGP has invited our attention to the decision of the Apex Court in State of Maharashtra Vs. Madhukar Wamanrao Smarth [ AIR 2008 SC 1793 ], wherein it was held in paragraph 11 as follows:- "It is true that the parameters to be applied in cases where life or death sentence is imposed, may not be applicable to other cases. But, the gravity of the offence, the sentence imposed and several other similar factors need to be considered by the Court. The fact that accused was on bail during trial is certainly not a relevant factor. This position has been fairly conceded by learned counsel for the respondents. The reasons indicated by the High Court for granting bail in our opinion do not satisfy the parameters. It needs to be pointed out that the trial Court considering the gravity of the offence has directed the sentences to run consecutively. This aspect has also not been considered by the High Court. In the circumstances, the impugned order in each case is indefensible and deserves to be set aside which we direct But considering the fact that the High Court had not applied correct principles it would be proper for the High Court to reconsider the matter and for that purpose the matter is remitted to the High Court. In the circumstances, the impugned order in each case is indefensible and deserves to be set aside which we direct But considering the fact that the High Court had not applied correct principles it would be proper for the High Court to reconsider the matter and for that purpose the matter is remitted to the High Court. Needless to say the High Court shall consider all the relevant aspects and pass orders in accordance with law." In the case in State of Maharashtra {Supra), the accused was convicted and sentenced for a series of offences, and all those sentences were ordered to run consecutively, and not concurrently. Therefore, the decision in State of Maharashtra (Supra) cannot be applied to the facts and circumstances of the present case, wherein the petitioner herein is convicted and sentenced for the offence under Section 201 IPC alone. 8. Our attention has been invited to the decision in Gomti Vs. Thakurdas and Others [ (2007) 11 SCC 160 ], wherein the Apex Court held as follows:- "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." In the case in Gomti (Supra), the said question came up for consideration when the accused, who were convicted and sentenced for the offences under Section 302 read with Section 149 IPC, 148 and 201 IPC and Sections 3, 2 and 5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, had approached the court for getting their sentences suspended. The said decision is, therefore, not applicable to the facts and circumstances of the present case. 9. The said decision is, therefore, not applicable to the facts and circumstances of the present case. 9. The learned DGP has pointed out that the allegations against the petitioner were that he was also one of the conspirators and that he had done acts thereby attempting to screen the other offenders from legal punishment and attempted to wipe out the evidence against them. It is alleged that the petitioner was the person, who obtained the bloodstained sword from A3 and dumped it in an unused well thereby screening the offender from legal punishment and caused the evidence in the case to disappear. The said allegation against the petitioner cannot be equated with the grave allegations against the accused, whose case was dealt with by the learned Single Judge of this Court in Shefiq Youseph {Supra). 10. On going through the facts and circumstances in the present case, it has come out that the present petitioner was all along on bail during the trial stage. There were no attempts from the part of the prosecution to get the bail of the petitioner cancelled on any ground during the trial stage. Even though the DGP has pointed out that the petitioner was involved in two other criminal cases, that ground cannot be availed of by the prosecution at present to oppose the present application, as admittedly there were no attempts from the part of the prosecution to get the bail of the petitioner cancelled on that ground, during the trial stage. Apart from all the above, the order granting bail to the petitioner by the trial court during trial was also not challenged. On that point, the DGP has pointed out that a convicted accused cannot be equated to an accused facing trial. Of course, even though the said argument appears to be sound, it has to be noted that no special reasons as contemplated under Section 389(3) Cr.P.C have been pointed out before the court below, when the court below has exercised the powers under Section 389(3) Cr.P.C. 11. We do not find any reason at present to take the present criminal appeal along with the six other connected criminal appeals, out of turn for hearing and disposal. We do not find any reason at present to take the present criminal appeal along with the six other connected criminal appeals, out of turn for hearing and disposal. Even though the State has not so far filed any appeal, as per the submissions made by the learned DGP, there is every possibility of the State also to prefer appeals in the matter. It is not possible for this Court, normally, to take up all these appeals out of turn, within the period of imprisonment for which the present petitioner stands sentenced. 12. The learned counsel for the petitioner has invited our attention to the decision in Bhagwan Rama Shinde Gosai and Others Vs. State of Gujarat [ AIR 1999 SC 1859 ], wherein it was held that: "When a convicted person is sentenced to fixed period of sentence and when he files 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 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 matters of suspending the sentence. So as to make the appeal right meaningful and effective. Of course appellate Court can impose similar conditions when bail is granted." In such case, the petitioner would be prejudiced on account of the futility by efflux of time as the period of sentence will be over, by the time at which all these criminal appeals become ripe for hearing. 12. It is a hard reality that we are now dealing with similar criminal appeals of the year 2008 as well as 2009 in our jurisdiction. It is true that in the case of this nature, an expeditious disposal of the appeal is necessary, in case the sentence is not suspended. 12. It is a hard reality that we are now dealing with similar criminal appeals of the year 2008 as well as 2009 in our jurisdiction. It is true that in the case of this nature, an expeditious disposal of the appeal is necessary, in case the sentence is not suspended. At the same time, it may not be possible for us to take up all these appeals, out of turn by sidelining other similar appeals pending right from the year 2008 onwards before this Court. We are guided on that point by the decision in Jayachandran Vs. State of Kerala [2012 (1) KLT SN 100 (C.No.108)] rendered by another Division Bench of this Court, wherein it was held:- "We have great concern that we are not able to take up criminal appeals at the earliest. This obliges appellants to remain in custody for long periods pending disposal of the appeals. But considering the state of pendency in this court, we cannot attempt anything better. At the average rate of one appeal a day or three appeals in two days, it appears that it will take a long time before the case of the appellant comes up for hearing in the regular course. Only one bench is dealing with criminal appeals. We have our sympathies with the persons waiting in the queue. But we do not think it proper to permit persons to jump the queue or give out of turn postings for hearing and disposal for any appeal. We sympathetically take note of the frustration of appellants who are languishing in prisons pending disposal of their appeals, when they come to know that appeals preferred later are being taken up for disposal." 13. Considering all the above, we find that the present petitioner is entitled to get the execution of the sentence imposed on him suspended, during the pendency of this appeal, otherwise, there is every possibility of this appeal become futile due to efflux of time. Considering all the above, we find that the present petitioner is entitled to get the execution of the sentence imposed on him suspended, during the pendency of this appeal, otherwise, there is every possibility of this appeal become futile due to efflux of time. There must be some compelling reasons in a case like the present one, to deny bail to the petitioner by refusing suspension of the execution of the sentence, especially when all along the trial he was on bail and the sentence imposed on him by the trial court stands suspended under Section 389(3) Cr.P.C. The mere fact that the State has not challenged the order passed by the court below under Section 389(3) Cr.P.C itself is sufficient to find that even the state has conceded to the fact that there are no special reasons in the case of this petitioner for refusing bail. 14. Even though the power of the trial court to invoke Section 389(3) Cr.P.C is restricted to cases in which special reasons are not there for refusing bail, the powers of the appellate court under Section 389(1) Cr.P.C is not restricted in such a manner. What is expected from the part of the appellate court is that such an order should be 'for reasons to be recorded by it in writing'. In the absence of any compelling reasons to bring him back behind the bars, normally, the court should be reluctant to refuse the suspension of the execution of the sentence. We do not find any such compelling reasons at present to refuse the suspension of sentence imposed on the petitioner. 15. Lastly, the learned DGP has prayed for imposition of strict and stringent conditions, in case this Court is inclined to suspend the execution of the sentence, by pointing out that there is every possibility of the petitioner to go abroad and to flee from justice. In the result, this Crl.M.A. is allowed and the execution of the sentence imposed on the petitioner by the court below is suspended and he shall be enlarged on bail on his executing a bond for Rs. 50,000/-(Rupees fifty thousand only) with two solvent sureties for the like sum each to the satisfaction of the court below, and subject to the following conditions:- (i) The petitioner shall not leave India during the pendency of this appeal without the permission of this Court. 50,000/-(Rupees fifty thousand only) with two solvent sureties for the like sum each to the satisfaction of the court below, and subject to the following conditions:- (i) The petitioner shall not leave India during the pendency of this appeal without the permission of this Court. For ensuring his presence in India, the petitioner shall surrender his passport before the trial court. (ii) The petitioner shall deposit before the trial court Rs. 20,000/-, being the amount of fine that forms part of the sentence. (iii) The petitioner shall not involve in any offence while on bail. It is made clear that the violation of any of the conditions stipulated above, will result in the cancellation of bail.