Kiran Misra v. Station House Officer, Mailardevpally Police Station
2021-11-10
P.NAVEEN RAO, P.SREE SUDHA
body2021
DigiLaw.ai
ORDER : P. Naveen Rao, J. 1. This application is filed by petitioner/appellant/Accused No. 5 in Cr. No. 597 of 2016 of Mailardevpally Police Station, who was subjected to trial in S.C. No. 599 of 2017 in the Court of Metropolitan Sessions Judge, Cyberabad, L.B. Nagar, Ranga Reddy District. On evaluation of the evidence on record, the trial Court held the petitioner/appellant guilty for the offence punishable under Section 370 (4) r/w. Sections 109 and 506 of Indian Penal Code (IPC), convicted under Section 235 (2) of Code of Criminal Procedure (Cr.P.C) and sentenced to undergo rigorous Life Imprisonment for the offence under Section 370 (4) of IPC and fine of Rs. 15,000/-, in default to pay the fine, to undergo Simple Imprisonment for a period of two months. 2. Challenging the said judgment appeal is preferred by the petitioner/Accused No. 5. Pending consideration of the appeal, this application is filed to enlarge the petitioner on bail. 3. Learned counsel for the petitioner contends that there is no evidence to sustain the charge levelled against the petitioner; false allegations were made and she was no way involved in the alleged offence of rape committed on her two daughters. He further submits that the petitioner is a woman and suffering from some health issues and therefore, she should be released on bail pending consideration of appeal. He placed reliance on the orders passed by this Court in I.A. No. 1 of 2021 in Crl.A. No. 328 of 2021 granting bail to Accused No. 6 who was the appellant in the said criminal appeal. 4. Per contra, learned Additional Public Prosecutor submits that appellant has committed a heinous crime against her own daughters and is not entitled to sympathetic consideration at this stage. Taking through the evidence as assessed by the Sessions Court, she submits that the depositions of the daughters of petitioner who are the victims of a heinous crime committed by several persons at the instance of petitioner speaks volumes about the bent mind of the petitioner. 5. We have gone through the judgment of the trial Court. As noticed by the trial Court in the deposition of PWs. 2 and 3, who are the victim Girls No. 1 and 2 respectively and daughters of Accused No. 5, have narrated how their mother tortured them, caused injuries to their private parts in the most heinous manner.
5. We have gone through the judgment of the trial Court. As noticed by the trial Court in the deposition of PWs. 2 and 3, who are the victim Girls No. 1 and 2 respectively and daughters of Accused No. 5, have narrated how their mother tortured them, caused injuries to their private parts in the most heinous manner. subjected them to victimisation by other accused, allowed other accused to enter into their house and how they were subjected to rape repeatedly. 6. While charge against Accused No. 6 is one of indulging in rape against minor girls, the crime alleged and proved against Accused No. 5 is more heinous. Being a mother of two minor girls, the manner in which she exploited her children has to be viewed more seriously as compared to the offence committed by Accused No. 6. 7. In the case on hand, after full trial and on thorough assessment of evidence brought on record, the trial Court found the accused guilty of the offence punishable under Section 370 (4) r/w. Sections 109 and 506 of IPC. 8. Once the competent Court holds the accused guilty and sentenced the accused for life imprisonment, granting bail to convict pending appeal is an exception, to be exercised in the peculiar facts of a case. However, the Hon'ble Supreme Court and various High Courts consistently emphasising the right of the accused for speedy trial and speedy disposal of appeals against conviction and sentence. 9. In Akhtari Bi v. State of M.P., (2001) 4 SCC 355 , it was held: "5. ... "We feel that if an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the court. In computing the period of 5 years, the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted. There may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them." 10.
There may be cases where even after the lapse of 5 years the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them." 10. In Surinder Singh v. State of Punjab, (2005) 7 SCC 387 , The Supreme Court clarified the stance of the Punjab and Haryana High Court in Dharam Pal case [(2000) 1 Chan LR 74] observed: (Chan LR p. 87, para 18) to grant bail to convicts pending appeal as not a straight jacket formula but more in the form of guidelines. The relevant portion reads as under: 8. ..... "In this case, we are concerned with the case where a person has been found guilty of an offence punishable under Section 302 IPC and who has been sentenced to imprisonment for life. The Code of Criminal Procedure affords a right of appeal to such a convict. The difficulty arises when the appeal preferred by such a convict cannot be disposed of within a reasonable time. In Kashmira Singh v. State of Punjab [ (1977) 4 SCC 291 : 1977 SCC (Cri) 559] this Court dealt with such a case. It is observed: (SCC pp. 292-93, para 2) "The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. .....
It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. ..... It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence." 11.... "We agree with the submission urged before us that the directions contained in the aforesaid judgment of the High Court are only in the nature of guidelines and the High Court should not be understood to have laid down an invariable rule to be observed with mathematical precision. In fact in the very first paragraph of the judgment the learned Judges observed that they were making "an attempt to frame certain guidelines" for the grant of bail. Difficulties may arise if such a direction is treated as an invariable rule in the matter of grant of discretionary relief. The rule laid down in Dharam Pal case [ (2000) 1 Chan LR 74] may be inferentially understood to mean that unless a convict has undergone five years' imprisonment, he should not be released on bail. This would again lead to travesty of justice, because in a given case having regard to the evidence on record and the reasoning of the court convicting the accused, the High Court in an appeal may well be persuaded and justified in granting bail to the appellant even while admitting his appeal." (emphasis supplied) 11. The above parameters to grant bail to individuals convicted for life was considered by the Hon'ble Supreme Court again in Hussain and Anr v. Union of India, (2017) 5 SCC 702 . 12.
The above parameters to grant bail to individuals convicted for life was considered by the Hon'ble Supreme Court again in Hussain and Anr v. Union of India, (2017) 5 SCC 702 . 12. Keeping all of the above decisions in mind, and taking note of the clarification on guidelines in Dharam Pal's case, by the Hon'ble Supreme Court in Akhtari Bi, a Division Bench of this Court in Batchu Rangarao v. State of A.P., 2016 (3) ALT (CRL.) 505 has clearly laid down that ordinarily a convict serving life imprisonment is to be granted bail only if he has undergone a minimum imprisonment of five years following conviction. The Division Bench also held that even when the convict undergoes sentence for five years, Court can refuse to grant bail in matters of grave crimes. The Division bench held: "10. On considering their valuable suggestions and after a thorough evaluation of the relevant factors, we are inclined to indicate broad criteria on which the applications for grant of bail pending the Criminal Appeals filed against conviction for the offences, including the one under Section-302 IPC, and sentencing of the appellants to life among other allied sentences, are to be considered. Accordingly, we evolve the following criteria: (1) A person who is convicted for life and whose appeal is pending before this Court is entitled to apply for bail after he has undergone a minimum of five years imprisonment following his conviction; (2) Grant of bail in favour of persons falling in (1) supra shall be subject to his good conduct in the jail, as reported by the respective Jail Superintendents: (3) In the following categories of cases, the convicts will not be entitled to be released on bail, despite their satisfying the criteria in (1) and (2) supra: The offences relating to rape coupled with murder of minor children dacoity, murder for gain, kidnapping for ransom, killing of the public servants, the offences falling under the National Security Act and the offences pertaining to narcotic drugs....." 13. We are in respectful agreement with the criteria evolved by the Division Bench. Though it is the discretion of the Court to grant bail to a convict, while considering the application to grant bail to a convict undergoing life imprisonment, the criteria evolved in Batchu Ranga Rao (supra) has to be kept in mind. 14.
We are in respectful agreement with the criteria evolved by the Division Bench. Though it is the discretion of the Court to grant bail to a convict, while considering the application to grant bail to a convict undergoing life imprisonment, the criteria evolved in Batchu Ranga Rao (supra) has to be kept in mind. 14. Coming to the case on hand, even though the Accused No. 6 was granted bail, based on guidelines formulated in Batchu Rangarao (supra) we find that the accused has not spent the minimum prescribed time in imprisonment to be eligible for bail and there are no special or extra-ordinary circumstances for the Court to grant bail pending appeal. On the contrary, the crimes committed by the accused, although not punishable under the POCSO Act, appear to be even more grave and heinous in nature involving two minor daughters and cannot be ignored while considering the convicts plea for bail. 15. Hence, the bail application is dismissed.