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2014 DIGILAW 266 (CHH)

Arjun Gop v. State of Chhattisgarh

2014-07-15

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. Invoking the revisional jurisdiction of this Court under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (henceforth 'Cr.P.C.'), the applicants, two in numbers, languishing in jail, have filed the instant revision questioning the legality and correctness of the order dated 18-6-2014 passed by the appellate Court in Criminal Appeal No. 19/2004 declining to exercise the jurisdiction under Section 389(1), Cr.P.C. to suspend the sentence during the pendency of the appeal. The facts, in brief, are as under: 1.1 Applicants Arjun Gop and Manoj Das stood convicted for offence under Sections 34(1)(a), 34(2) and 59-A of the Chhattisgarh Excise Act, 1915 (henceforth 'the Act, 1915') and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 25,000 each. It is also stood on record that as on 18-6-2014, applicant Arjun Gop had remained in custody for six months and four days and applicant Manoj Das for four months. 1.2 In an appeal filed under Section 374(3) Cr.P.C. before the Court of Session, the applicants also moved an application under Section 389(1), Cr.P.C. invoking the jurisdiction of the Court for suspension of sentence awarded to them. The Court of Session/the appellate Court, by the impugned order, rejected the application under Section 389(1), Cr.P.C. for suspension of sentence holding that no valid ground exists in favour of the applicants for suspension of the substantive jail sentence, against which the instant revision has been filed by the applicants. 2. Shri Vimlesh Bajpai, learned counsel appearing for the applicants would submit that the maximum jail sentence awarded to the applicants is one year and as on 18-6-2014, applicant Arjun Gop had remained in custody for six months and four days and applicant Manoj Das for four months. The rejection of the application for suspension of sentence should be supported by an exceptional reason, otherwise the appeal itself will become infructuous. Therefore, the instant revision be allowed and the sentence be suspended. 3. Opposing the submission, Shri Prasun Bhaduri, learned Government Advocate appearing for the State/non-applicant would submit that looking to the seriousness of the offence, the appellate Court is absolutely justified in rejecting the application for suspension of sentence. 4. I have heard and considered the rival submissions made by learned counsel appearing for the parties. 5. 3. Opposing the submission, Shri Prasun Bhaduri, learned Government Advocate appearing for the State/non-applicant would submit that looking to the seriousness of the offence, the appellate Court is absolutely justified in rejecting the application for suspension of sentence. 4. I have heard and considered the rival submissions made by learned counsel appearing for the parties. 5. Section 374(3), Cr.P.C. gives a convicted person a right of appeal before the Court of Session. Such a right of appeal provided in Section374(3), Cr.P.C. is a statutory right. In view of the provision contained in Section 389(1), Cr.P.C., 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. 6. Admittedly, applicants Arjun Gop and Manoj Das stood convicted for the offence under Sections 34(1)(a), 34(2) and 59-A of the Act, 1915 and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 25,000/- each, and as on 18-6-2014, applicant Arjun Gop had remained in custody for six months and four days and applicant Manoj Das for four months. Their application for suspension of sentence has been rejected by the appellate Court construing the provision of suspension of sentence strictly. 7. In Bhagwan Rama Shinde Gosai v. State of Gujarat (JT 1999 (4) SC 15 : AIR 1999 SC 1859 ), the Supreme Court observed that when a person is convicted and sentenced with a short-term imprisonment, the normal rule is that if his appeal is pending, the sentence would be suspended. The Supreme Court further observed that rejection of suspension of sentence should only be by way of exception. Otherwise, the valuable right of appeal would be an exercise in futility. The observations made by the Supreme Court are as under: "3. 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 of a different approach. 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 moreso 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." 8. Thereafter, reiterating the view taken in Bhagwan Rama case ( AIR 1999 SC 1859 ) (supra), the Supreme Court, in Kiran Kumar v. State of M.P. JT 2000 (Supp 1) SC 208 : (2001 AIR SCW 5130), observed that unless a reason exist for rejecting the application, it should be granted. Otherwise, the appeal would become infructuous for all practical purposes as short-term sentence cannot be allowed to run out during the pendency of the appeal. The Supreme Court observed thus: "3. This Court has held in Bhagwanram Shinde v. State of Gujarat (JT 1999 (4) SC 11 : AIR 1999 SC 1859 ) that when a person is convicted and sentenced to a short term imprisonment the normal rule is that when his appeal is pending the sentence should be suspended and rejection is only by way of exception and be put forward for such rejection. In such case also every endeavour should be made to have the appeal posted for early hearing and disposal. If the short-term sentence is allowed to run out during the pendency of the appeal, the appeal itself will become, for all practical purposes, infructuous so far as the appellant is concerned. It does not mean that the Appellate Court should suspend the sentence, if its consequence would be dangerous to the society or any other similar difficulties. 4. No exceptional reason had been shown in the impugned order for not suspending the sentence in this case. We, therefore deem it appropriate to interfere with the said order. It does not mean that the Appellate Court should suspend the sentence, if its consequence would be dangerous to the society or any other similar difficulties. 4. No exceptional reason had been shown in the impugned order for not suspending the sentence in this case. We, therefore deem it appropriate to interfere with the said order. We suspend the sentence passed on the appellant during the pendency of the appeal and direct him to be released on bail on his executing a bond with two solvent sureties to the satisfaction of the trial Court." 9. Having regard to the principles laid down by their Lordships of the Supreme Court in Bhagwan Rama case ( AIR 1999 SC 1859 ) (supra) and Kiran Kumar case (2001 AIR SCW 5130) (supra) and on turning back to the facts of the instant case and considering the fact that the sentence awarded is a short-term sentence, i.e. rigorous imprisonment for one year and that as on 18-6-2014, applicant Arjun Gop had remained in custody for six months and four days and applicant Manoj Das for four months, I arrive at a finding that the appellate Court is absolutely unjustified in rejecting the application under Section 389(1), Cr.P.C. Consequently, the revision is allowed. The impugned order dated 18-6-2014 is hereby set aside. The sentence awarded to the applicants by the trial Magistrate in Criminal Case No. 382/2014 for offence under Sections 34(1)(a), 34(2) and 59-A of the Act, 1915 shall remain suspended and they shall be released on bail on each of them furnishing a personal bond for a sum of Rs. 10,000/- with one solvent surety in the like sum to the satisfaction of the trial Magistrate for their appearance before the appellate Court on 25th August, 2014 and thereafter on all such subsequent dates as would be given to them by the appellate Court till disposal of the appeal. However, the appellate Court shall decide the appeal expeditiously.