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2022 DIGILAW 1256 (ALL)

Bhura Singh v. State of U. P.

2022-08-06

VIKRAM D.CHAUHAN

body2022
ORDER : Order on Criminal Misc. 1st Bail Application No. 4 of 2022 1. Heard learned Amicus Curiae for the appellant-applicant, learned A.G.A. for the State and perused the record. 2. The instant application under Section 389 Cr.P.C. has been preferred with the prayer to suspend the sentence of conviction and to release the appellant-applicant on bail in S.T. No. 464 of 2014 (State Vs. Bhura Singh), arising out of Case Crime No. 722 of 2014, under Section 376 I.P.C. and Section 5(N)/6 of Protection of Children from Sexual Offences Act, 2012, Police Station Sector-49, District Gautambudh Nagar, during the pendency of the criminal appeal. 3. It is submitted by learned Amicus Curiae for the appellant-applicant that the appellant-applicant has been convicted for 10 years by the impugned judgment and as per custody certificate dated 7.6.2022 of Superintendent, District Jail, Gautam Budh Nagar, appellant-applicant has undergone incarceration with remission 8 years 8 months and 22 days. The appellant-applicant is languishing in jail since 27.3.2014. 4. It is submitted that the provisions of Section 436A Cr.P.C. have been made applicable to the pending appeals against the order of conviction and Section 389 Cr.P.C. is to be reckoned along with Section 436A Cr.PC. 5. It is submitted that the appellant-applicant has already undergone detention for a period more than half of maximum period of sentence specified in the impugned judgment. The appeal is not likely to be heard in near future and as such the aforesaid factor may be considered in favour of the appellant-applicant and the appellant-applicant may be released on bail. 6. The Hon'ble Apex Court in the case of Dinesh Kumar Sinha Vs. State of Jharkhand (2009) 6 SCC 628 has granted bail in pending appeal on the ground that the accused has undergone half of the sentence and there is no possibility of early hearing of the appeal. 7. In Bhagwan Rama Shinde Gosai and others Vs. State of Gujarat (1999) 4 SCC 421 , the Apex Court has observed as under :- "3. When a convicted person is sentenced to a fixed period of sentence and when he files an 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. When a convicted person is sentenced to a fixed period of sentence and when he files an 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. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise of 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 bestow special concern in the matter of suspending of sentence, so as to make the appeal right, meaningful and effective. Of course, appellate courts can impose similar conditions when bail is granted." 8. Similarly, the Supreme Court in Ramnik Singh Vs. Intelligence Officer, Directorate of Revenue Intelligence, 2013 SCC Online SC 1276 has released the convict considering the custody certificate and that the convict has already undergone half of the sentence imposed and the possibility of appeal being taken up in near future is remote and as such, has entitled the convict for suspension of sentence during pendency of appeal. 9. In Saudan Singh Vs. State of U.P. vide order dated 05.10.2021 in Special Leave to Appeal (Criminal) No.4633 of 2021, the Apex Court has observed : "We may note that there may be even convicts in custody in cases other than life sentence cases and in those cases again the broad parameter of 50 per cent of the actual sentence undergone can be the basis for grant of bail." 10. The Hon'ble Apex Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another passed in Special Leave Petition (Crl.) No.5191 of 2021 dated 11th July, 2022 has held that the delay in taking up the main appeal, coupled with the benefit conferred with Section 436A Cr.P.C. among other factors are to be considered for favourable release on bail. "43. Central Bureau of Investigation and another passed in Special Leave Petition (Crl.) No.5191 of 2021 dated 11th July, 2022 has held that the delay in taking up the main appeal, coupled with the benefit conferred with Section 436A Cr.P.C. among other factors are to be considered for favourable release on bail. "43. A suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication. Though delay in taking up the main appeal would certainly be a factor and the benefit available under Section 436A would also be considered, the Courts will have to see the relevant factors including the conviction rendered by the trial court. When it is so apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the appellant. 44. Thus, we hold that the delay in taking up the main appeal or revision coupled with the benefit conferred under Section 436A of the Code among other factors ought to be considered for a favourable release on bail. 46. Section 436A of the Code has been inserted by Act 25 of 2005. This provision has got a laudable object behind it, particularly from the point of view of granting bail. This provision draws the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the accused during the investigation, inquiry and trial. We have already explained that the word 'trial' will have to be given an expanded meaning particularly when an appeal or admission is pending. Thus, in a case where an appeal is pending for a longer time, to bring it under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision." 11. Learned A.G.A. for the State has opposed the bail application. However, he has not demonstrated any factor which would disentitle the appellant-applicant from being released on bail. Learned A.G.A. does not dispute the aforesaid proposition of law laid down by the Apex Court. 12. Learned A.G.A. for the State has opposed the bail application. However, he has not demonstrated any factor which would disentitle the appellant-applicant from being released on bail. Learned A.G.A. does not dispute the aforesaid proposition of law laid down by the Apex Court. 12. Keeping in view the submissions advanced by the learned counsel for the appellant-applicant and having regard to the decisions of the Apex Court in the cases of Satender Kumar Antil (supra), Dinesh Kumar Sinha (supra), Bhagwan Rama Shinde Gosai and others (supra), Ramnik Singh (supra) and Saudan Singh (supra), and the fact that the appeal is not likely to be heard in near future, the Court is of the opinion that the sentence awarded by the trial court be kept in abeyance and the appellant-applicant be enlarged on bail. 13. Consequently, the prayer for bail is granted. 14. Without expressing any opinion on the merits of the case, let the appellant-applicant-Bhura Singh convicted and sentenced in aforesaid case be released on bail on his furnishing personal bond with two sureties each in the like amount to the satisfaction of the court concerned. 15. The fine imposed by trial court shall remain stayed during the pendency of the appeal. 16. On acceptance of bail bond and personal bond, the lower court shall transmit photostat copies thereof to this Court for being kept on the record. 17. Office to send a copy of this order to the concerned Jail Superintendent through the Chief Judicial Magistrate concerned for compliance. 18. List in due course for hearing. 19. Registrar General of this Court is directed to pay an honorarium of Rs. 10,000/-(being 50% of total fees) to Sri C.L. Chaudhary, learned Amicus Curiae for rendering effective assistance in the matter.