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2015 DIGILAW 265 (CHH)

Satyanarayan Sahu v. State of C. G.

2015-09-23

SANJAY K.AGRAWAL

body2015
ORDER : Sanjay K. Agrawal, J. 1. Criminal Revision Nos. 691, 695 and 739 of 2015 have arisen out of the common order dated 23.7.2015 passed by the Additional Sessions Judge/Special Judge, (CBI), Raipur, in Criminal Appeal Nos. 108, 109 and 107 of 2015, therefore, they are being disposed of by this common order. The applicants were tried for an offence under Section 120B, 420, 467, 468 & 474 of the IPC and Sections 4A and 10 of the CG Public Examination (Prevention of Unfair Means) Act, 2008 and ultimately by the judgment dated 17.7.2015 they were acquitted from the charges under Sections 420, 467, 468 and 474 of the IPC and convicted under Sections 120B Part-I (Section 409 and 115 Part-II) of the IPC), 411, 465 and Section 10 of the CG. Public Examination (Prevention of Unfair Means) Act, 2008. Against the judgment of conviction for the aforesaid offences, the applicants preferred three separate appeals before the Additional Sessions Judge/Special Judge (CBI), Raipur and also preferred separate applications for suspension of sentence under Section 389(1) of the Cr.P.C. during pendency of appeal. 2. Learned Additional Sessions Judge/Special Judge (CBI), Raipur by the impugned orders dated 23.7.2015 rejected the applications filed by the applicants under Section 389(1) of the Cr.P.C. for suspension of sentence and posted the case for final hearing on 27.7.2015. 3. Feeling aggrieved against the order rejecting their applications for suspension of sentence, aforesaid three criminal revisions have been filed by the applicants stating inter alia that orders passed by the Special Judge rejecting their applications for suspension of sentence are unsustainable and bad in law. 4. Mr. Maneesh Sharma, learned counsel appearing for applicant-Shailendra Kumar Pandey in Criminal Revision No. 739 of 2015 would submit that the order passed by the Special Judge (CBI) is absolutely bad in law as no charge under Section 409 of the IPC was framed by the trial Court during pendency of the proceeding and no opportunity of hearing was given while convicting the applicants under Section 409 of the IPC. 5. Mrs. Fouzia Mirza, learned counsel appearing for applicants-Rajesh Kumar Sachan and Sunil Kumar Singh in Criminal Revision No. 695 of 2015 in addition to submission made by Mr. 5. Mrs. Fouzia Mirza, learned counsel appearing for applicants-Rajesh Kumar Sachan and Sunil Kumar Singh in Criminal Revision No. 695 of 2015 in addition to submission made by Mr. Maneesh Sharma would submit that the Special Judge swayed with the nature of alleged offence by the prosecution and rejected the application for suspension of sentence without considering the facts and circumstances of the case and other factors which require to be considered while considering the bail application for suspension of sentence. 6. Mr. Anurag Dayal Shrivastava, learned counsel appearing for applicant-Satyanarayan Sahu in Criminal Revision No. 691 of 2015 would submit that the Special Judge has failed to take relevant consideration while considering the application for suspension of sentence and rejected the application merely on the basis of the nature of offence and omitted to consider the manner in which the occurrence had taken place and whether in any manner bail granted earlier to the accused had been misused. He would further submit that the facts and circumstances of each case will govern the exercise of judicial discretion while considering the application filed by the convict under Section 389 Cr.P.C. He would relied upon the judgment of the Supreme Court in the case of Angana and another Vs. State of Rajasthan, (2009) 3 SCC 767 in which their Lordships have laid-down the scope and manner of exercise of discretion by the trial Court while considering the application under Section 389 of the Cr.P.C. and therefore, order impugned being unsustainable in law, deserves to be set aside. 7. On the other hand, Mr. O.P. Sahu, learned State counsel would oppose the revisions and submit that impugned order passed by the Special Judge (CBI) is well merited and no interference is warranted in exercise of revisional jurisdiction in the present case. 8. It is not in dispute that the applicants have been convicted for the aforesaid offences and they have filed separate appeals under Section 374(3) of the Cr.P.C., simultaneously they have also filed applications under Section 389(1) of the Cr.P.C. for their suspension of sentence. 8. It is not in dispute that the applicants have been convicted for the aforesaid offences and they have filed separate appeals under Section 374(3) of the Cr.P.C., simultaneously they have also filed applications under Section 389(1) of the Cr.P.C. for their suspension of sentence. It is quite vivid from the order impugned that the Special Judge from paragraph 1 to 12 of the order impugned has recorded the presence of the parties, submission of the parties, the order passed by the trial Court and in paragraph 13 considered the nature of offence, which is said to have been committed by the present applicants and in paragraph 14 declined to consider legal flaws pointed out by the applicants in the judgment of the trial Court and the applications for suspension of sentence came to be rejected. Paragraphs 13 and 14 state as under:- ^^13- ekeys ds xq.k&nks"k ij fopkj fd;s fcuk vihykFkhZx.k dks ftl izd`fr ds vijk/k ds fy, fopkj.k U;k;ky; us nks"kfl} fd;k gS] mldh izd`fr] ,sls vijk/k ls ;ksX; rFkk ik= Nk=ksa ds Hkfo"; ij iM+us okys laHkkfor izHkko] lekt dks iM+us okys O;kid izHkko rFkk nwf"kr rjhds ls ih-,e-Vh- tSls egRoiw.kZ ijh{kk esa v;ksX; Nk=ksa ds p;u gksus dh laHkkouk vkfn dks n`f"Vxr j[krs n.Mkns'k dks fuyafcr fd;k tkuk ;g U;k;ky; mfpr ugha le>rhA Hkz"V vkpj.k iwjs flLVe dks Hkz"V dj nsrk gS] ,sls Hkz"V vkpj.k esa vke ukxfjd ds ewy vf/kdkj izHkkfor gksrs gS rFkk fu'Ny rjhds ls rS;kjh djus okys Nk=ksa ds eu esa daqBk mRiUu gksrk gS] tks fof/k ds 'kklu dks Hkh pqukSrh nsrk gS] vr% ,sls vijk/k esa vikyhFkhZ dks nks"kfl} fd;s tkus ds ckn mUgsa fn;s x;s n.Mkns'k dks fuyafcr fd;s tkus ls mldk laiw.kZ lekt ij Hkh izfrdwy lans'k tk,xkA 14- n.Mkns'k ds LFkxu gsrq mBk;k x;k rdZ tSls lk{; dk vHkko] vUos"k.k esa [kkeh vkfn fcUnq bl Lrj ij fopkj ;ksX; ugha gS rFkk mu ij fu.kZ; ds le; gh fopkj fd;k tkuk mfpr gksxk-------** 9. The law with regard to consideration of the application for suspension of sentence is extremely well settled. The law with regard to consideration of the application for suspension of sentence is extremely well settled. The Special Judge while considering the applications for suspension of sentence was bound to consider the nature of offence, facts & circumstances of each case and manner in which occurrence has taken place, legal pleas raised on behalf of the applicants to find out prima facie to consider the said applications and more particularly the appellate Court was required to consider whether bail granted to the applicants, if any, they have misused the same or not. It is true that order considering the application for suspension rejecting/granting is discretionary in nature, yet that discretion has to be exercised by the appellate Court judiciously & judicially and application for suspension of sentence has to be considered on its own merit and it cannot be rejected merely considering the nature of offences which the accused persons are charged. 10. In the matter of Kishori Lal Vs. Rupa, (2004) 7 SCC 638 their Lordships of the Supreme Court have indicated the factors that are required to be considered by the Courts while granting benefit under Section 389. 11. In the matter of Angana, (2009) 3 SCC 767 (supra) their Lordships of the Supreme Court have laid-down the scope and manner of exercise of discretionary power by the appellate Court while exercising the power under Section 389(1) of the Cr.P.C. Paragraph 14 of the report states as under:-- "14. When an appeal is preferred against conviction in the High Court, the Court has ample power and discretion to suspend the sentence, but that discretion has to be exercised judiciously depending on the facts and circumstances of each case. While considering the suspension of sentence, each case is to be considered on the basis of nature of the offence, manner in which occurrence had taken place, whether in any manner bail granted earlier had been misused. In fact, there is no straitjacket formula which can be applied in exercising the discretion. The facts and circumstances of each case will govern the exercise of judicial discretion while considering the application filed by the convict under Section 389 of the Criminal Procedure Code." 12. In fact, there is no straitjacket formula which can be applied in exercising the discretion. The facts and circumstances of each case will govern the exercise of judicial discretion while considering the application filed by the convict under Section 389 of the Criminal Procedure Code." 12. If the facts of the present case are examined in the light of law laid down by the Supreme Court in the aforesaid cases particularly Angana's case (2009) 3 SCC 767 (supra), it would be apparent that the appellate Court has considered the applications for suspension of sentence and rejected the same only on the basis of nature of offence holding it to be serious in nature and omitting to consider the other plea raised by the applicants particularly lack of evidence and non-framing of charge for an offence under Section 409 of the IPC, for which they have been convicted and as such, the order of the Special Judge is in teeth of law laid down by the Supreme Court in Angana's case (2009) 3 SCC 767 (supra). The Special Judge has completely omitted to consider the said applications on its own merit. 13. Since the appellate Court has failed to consider the relevant factors which were required to be considered while rejecting the applications for suspension of sentence as well as on its merit, this Court is unable to sustain the orders dated 23.7.2015 passed by the Special Judge (CBI), Raipur in Criminal Appeal Nos. 108, 109 and 107 of 2015 rejecting their applications for suspension of sentence. 14. For the foregoing reasons, orders impugned to the extent of rejecting the applications for suspension of sentence are hereby set aside. The appellate Court is directed to consider the applications filed by the applicants for suspension of sentence afresh in accordance with law keeping in view the factors which have been indicated by their Lordship of the Supreme Court in Angana's case (2009) 3 SCC 767 (supra) while deciding the applications filed under Section 389(1) of the Cr.P.C. after affording opportunity of hearing to the parties. It is stated at the bar that the matter is fixed for 6th October, 2015 before the appellate Court. Parties are directed to appear on 6th October, 2015 before the said Court. It is stated at the bar that the matter is fixed for 6th October, 2015 before the appellate Court. Parties are directed to appear on 6th October, 2015 before the said Court. The appellate Court is directed to consider the applications for suspension of sentence on that day afresh in accordance with law and if any reason hearing on the applications is not possible, the appellate Court would do well to hear and conclude hearing on the said applications not more than 10 days from that day. 15. It is made clear that this Court has not expressed any opinion on merits about the applications for suspension of sentence and the learned Special Judge will decide the applications for suspension of sentence on its own merit in accordance with law without being influenced by any observations made hereinabove, which are only for the purpose of deciding these criminal revisions. With the aforesaid-observation, the criminal revisions are allowed in the manner indicated hereinabove.