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2017 DIGILAW 654 (JK)

Mohd. Shaffi v. State

2017-08-17

SANJAY KUMAR GUPTA

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JUDGMENT : 1. Through the medium of instant application, applicant/appellant-Mohd. Shaffi seeks suspension of conviction/sentence dated 24.04.2012 passed by the learned Additional Sessions Judge, Udhampur in case FIR No.83/2005 of Police Station Ramnagar for offence under Section 363, 376, 342, 451 RPC and prays for release of applicant on bail, inter alia, on the ground that appeal is pending in this Court since June, 2012. The trial Court has awarded sentence of 10 years under Section 376 RPC, 03 years under section 363 RPC, 06 months under Section 451 RPC and 06 months under Section 342 RPC. All the sentences were ordered to run concurrently. The applicant was initially arrested on 13.10.2005 and was enlarged on bail on 07.11.2005. He was again arrested on 24.04.2012, the date of judgment, and since then he is languishing in jail. Thus, he has undergone more than half of the sentence awarded to them. 2. Learned counsel for the applicant/appellant submitted that in view of the pendency of cases of similar nature, there is no possibility of consideration of the instant appeal for final hearing in near future. It is further submitted that there is a settled principle of law that where the accused has already undergone half of the total sentence awarded, he is entitled to be released on bail. 3. On the basis of submissions made above, learned counsel seeks suspension of sentence and release of applicant on bail. 4. Per contra, bail application is opposed by learned Addl. Advocate General stating that the applicant has been convicted by the learned trial Court for commission of offences and was sentenced to undergo rigorous imprisonment of 10 years under Section 376 RPC, 03 years under section 363 RPC, 06 months under Section 451 RPC and 06 months under Section 342 RPC. It is submitted that the offence committed by the applicant is against the society at large in general and against the women folk in particular, for which, the applicant does not deserve any leniency while consideration of his bail application. It is also submitted that there is also reasonable apprehension that in case the concession of bail is extended to the applicant/appellant at this stage, he would abuse the liberty to subvert justice thereby thwarting the course of justice, as such, the applicant is not entitled to be released on bail. It is also submitted that there is also reasonable apprehension that in case the concession of bail is extended to the applicant/appellant at this stage, he would abuse the liberty to subvert justice thereby thwarting the course of justice, as such, the applicant is not entitled to be released on bail. It is further submitted that in view of gravity of accusation, nature of evidence available and severity of punishment & conviction, the instant application is required to be rejected out rightly. 5. Heard learned counsel for the applicant/appellant as well as learned State Counsel and considered the law on the subject. 6. Section 497-D of Code of Criminal Procedure reads as under:- “497-D. Maximum period for which an under trial prisoner can be detained.-Where a person has during the period of investigation, inquiry or trial under this Code or an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under the law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties: Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded in the writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of personal bond with or without sureties: Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than maximum period of imprisonment provided for said offence under the law. Explanation:- In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.” 7. Explanation:- In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.” 7. Bare perusal of Section 497-D Cr.P.C., makes it clear that where a person has during the period of investigation, inquiry or trial under this Code or an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under the law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties. 8. In present case, the applicant has undergone more than half of the sentence awarded to him by the learned trial Court. 9. It is pertinent to mention that other two accused namely Feroz Din and Gashan were granted bail by this Court vide order dated 06.09.2012. 10. In case titled ‘Mithu Pasi and anr. Vs. State of Jharkhand’ 2016 (8) Scale 654, it is held as under:- “Criminal Procedure Code, 1973 Section 389 Indian Penal Code, 1860 Section 326 Sentence- Suspension of- Appellant inflicted injury with knife on victim- Already undergone 6 years imprisonment without remission out of ten years awarded- Just and proper to direct suspension of remaining sentence.” 11. In case titled ‘Thana Singh Vs. In case titled ‘Thana Singh Vs. Central Bureau of Narcotics’ 2013 AIR (SCW) 800, it is held as under:- “Narcotic Drugs and Psychotropic Substances Act, 1985- Criminal Procedure- Bail in NDPS case-Delay in Trial-Appellant was languishing in jail for more than 12 years, awaiting, even the commencement of his trial for an offence under NDPS Act and he consistently denied bail, as noted, even by the High Court- Court took serious note of the fact that the maximum punishment for the offence in question is incarceration for 20 years, hence the undertrial remained in detention for a period exceeding ½ of the maximum period of imprisonment, in the light of Section 37 of the Act, stated to be against the express pronouncement of it in Supreme Court Legal Aid Committee Representing Under trial Prisoners v. Union of India & Ors., (1994) 6 SCC 731 Court not only granted the bail deserved by appellant- Thana Singh, but in a view to ensure that in future no under trial under NDPS Act is made to suffer such an anguish and plight, issued several directions.” 12. Hon’ble Supreme Court in case ‘Bhim Singh Vs. Union of India and ors.’ 2016 (1) SCC (Cri) 663, it is held that ‘under trial prisoners who have completed half of maximum sentence prescribed for offence for which they were arrested not be detained in jail’. 13. Appeal is a continuation of trial. Appeal is pending since June 2012. There are many such appeals pending, which are prior to this appeal, for arguments. So there is less chance of final consideration of this appeal in near future. 14. In view of the above, I am inclined to suspend the sentence awarded by trial court and enlarge the applicant/appellant on bail, subject to the following conditions:- a. That the applicant/appellant-Mohd. Shaffi, shall furnish personal bond in the amount of Rs.One lac with one surety of like amount to the satisfaction of the Registrar Judicial of this Court. b. The applicant/appellant shall not leave the State of Jammu and Kashmir without permission of this Court. c. The applicant/appellant shall appear before this Court on each and every date of hearing. d. Any violation of conditions shall amounts to cancellation of bail. Accordingly, the application is allowed.