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R/CR.MA/7267/2011
JUDGEMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No 7267 of 2011
In
CRIMINAL
APPEAL no 640 of 2011
FOR
APPROVAL AND SIGNATURE:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
================================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
================================================================
RAJESHKUMAR
KESHAVLAL PATEL….Applicant(s)
Versus
STATE
OF GUJARAT ….Respondent(s)
================================================================
Appearance:
MR
BHARAT T RAO for the Applicant(s) No. 1
MR
JK SHAH, APP for the Respondent(s) No. 1
================================================================
CORAM:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 06/06/2011
ORAL
JUDGEMENT
RULE
returnable forthwith. Mr.J.K.Shah, learned APP for the State waives
service of notice of rule for and on behalf of the respondent
State.
This
is an Application under Section 389 of the Code of Criminal Procedure
preferred by the accused-applicant, praying for suspension of the
substantive order of sentence imposed by the Additional District and
Sessions Judge, Sabarkantha at Himmatnagar (camp at Idar), dated 21st
May 2011 passed in Sessions Case No.159/2007, whereby the Additional
District and Sessions Judge convicted the accused-applicant for the
offences punishable under Sections 397, 395, 342, 506(2) read with
Section 120B of the Indian Penal Code.
The
trial Court, while convicting the accused-applicant for the offences
punishable –
(a)
under Section 395 IPC, has ordered the accused-applicant to undergo
rigorous imprisonment for a term of 7 years with fine of Rs.5,000=00
and in default of payment of fine, further simple imprisonment of one
year.
(b)
under Section 397 IPC, has ordered the accused applicant to
undergo rigorous imprisonment for a term of 7 years.
(c)
under Section 342 IPC, has ordered the accused applicant to
undergo rigorous imprisonment for a term of one year with fine of
Rs.1,000=00 and in default of payment of fine, further simple
imprisonment of one month.
(d)
under Section 120B IPC, has ordered the accused applicant to
undergo rigorous imprisonment for a term of 7 years with fine of
Rs.5,000=00 and in default of payment of fine, further simple
imprisonment of one years.
(e)
under Section 506(2) IPC, has ordered the accused applicant to
undergo rigorous imprisonment for a term of one year with fine of
Rs.1,000=00 and in default of payment of fine, further simple
imprisonment of one month.
All
the sentences have been ordered to run concurrently.
The
accused-applicant was acquitted for the offences punishable under
Sections 323, 504 IPC and Sections 25(1)(b) and 27 of the Arms Act.
Learned
counsel for the accused-applicant would submit that the
accused-applicant has challenged the judgment and order of conviction
by filing a substantive appeal raising manifold grounds of challenge.
He would further submit that the sentence imposed for all offences is
for a fixed period and the maximum sentence which the
accused-applicant has to undergo is rigorous imprisonment for a term
of 7 years. He would further submit that pending the trial the
accused-applicant was on bail and during the period of bail, the
accused-applicant has not abused the process. He would further submit
that the appeal would take a considerable long time before it is
taken up for hearing and if the substantive period of sentence is not
suspended and the accused-applicant is not released on bail, then the
valuable right of appeal would get defeated. He would further submit
that it takes a considerable long time before the appeals are taken
up for final hearing in this High Court and by the time the appeal
would be taken up for final hearing, practically 80 to 90 percent of
the sentence period would be over. He would further submit that,
therefore, in the interest of justice and with a view to protect the
valuable right of appeal as provided by the Code, the
accused-applicant should be released on bail pending the final
disposal of the appeal, subject to terms and conditions.
I
have given my anxious thoughts and considerations to the submissions
canvassed by learned counsel for the accused-applicant. It is true
that the sentence which has been imposed by the trial Court is for a
fixed period and the maximum sentence is 7 years. It is also true
that pending the trial, the accused-applicant was on bail and has not
misused the liberty granted to him. It is also true that the appeal
would take a considerable long time before it is taken up for final
hearing. However, all these aspects cannot be the sole consideration
for suspending the substantive order of sentence once the trial Court
has held the accused-applicant guilty of the offences and has imposed
a maximum sentence of 7 years’ rigorous imprisonment.
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 strait jacket 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 Criminal Procedure Code.
Reference
can be made to the decision of the Supreme Court in the case of
Kashmira Singh v. State of Punjab, reported in (1977)4
SCC 291, where the Supreme Court has observed that :-
“Now,
the practice in this Court as also in many of the High Court has been
not to release on bail a person who has been sentenced to life
imprisonment for an offence under Section 302 of the Indian Penal
Code. The question is whether this practice should be departed from
and if so, in what circumstances. It is obvious that no practice
howsoever sanctified by usage and hallowed by time can be allowed to
prevail if it operates to cause injustice. Every practice of the
Court must find its ultimate justification in the interest of
justice. 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. Can the Court ever compensate him for his incarceration which
is found to be unjustified? Would it be just at all for the Court to
tell a person : ‘We have admitted your appeal because we think you
have a prima facie case, but unfortunately we have no time to hear
your appeal for quite a few years and, therefore, until we hear your
appeal, you must remain in jail, even though you may be innocent?’
What confidence would such administration of justice inspire in the
mind of the public? It may quite conceivably happen, and it has in
fact happened in a few cases in this Court, that a person may serve
out his full term of imprisonment before his appeal is taken up for
hearing. Would a Judge not to be overwhelmed with a feeling of
contrition while acquitting such a person after hearing the appeal?
Would it not be an affront to his sense of justice? Of what avail
would the acquittal be to such a person who has already served out
his term of imprisonment or at any rate a major part of it? 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.”
The
Court going by the said consideration held that :-
“so
long as the Supreme 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 where special leave has been granted to
the accused to appeal against his conviction and sentence. The other
consideration, however, is equally important and relevant. When a
person is convicted by an appellate Court, he cannot be said to be an
innocent person until the final decision is recorded by the superior
Court in his favour.”
In
the case of Babu Singh v. State of U.P., reported in 1978(1)
SCC 579, it was observed that :-
the
significance and sweep of Art. 21 make the deprivation of liberty a
matter of grave concern and permissible only when the law authorising
it is reasonable, even-handed and geared to the goals of community
good and State necessity spelt out in Art. 19. Indeed, the
considerations I have set out as criteria are germane to the
constitutional proposition I have deduced. Reasonableness postulates
intelligent care and predicates that deprivation of freedom by
refusal of bail is not for punitive purpose but for the bifocal
interests of justice – to the individual involved and society
affected.
In
the case of Emperor v. H. L. Hutchinson, reported in
AIR 1931 All 356, it was observed that :-
“As
to the object of keeping an accused person in detention during the
trial, it has been stated that the object is not punishment, that to
keep an accused person under arrest with the object of punishing him
on the assumption that he is guilty even if eventually he is
acquitted is improper. This is most manifest. The only legitimate
purposes to be served by keeping person under trial in detention are
to prevent repetition of the offence with which he is charged where
there is apparently danger of such repetition and to secure his
attendance at the trial. The first of those purposes clearly to some
extent involves an assumption of the accused’s guilt, but the very
trial itself is based on a prima facie assumption of the accused’s
guilt and it is impossible to hold that in some circumstances it is
not a proper ground to be considered. The main purpose however is
manifestly to secure the attendance of the accused.”
In
the case of Bhagwan Rama Shinde Gosai v. State of Gujarat,
reported in (1999)4 SCC 421, the Supreme Court has stated that
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. The Court has observed :
“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 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.”
The
Supreme Court in the case of Suresh Kumar and others v. State (NCT
of Delhi), reported in (2001)10 SCC 338, where the
appellants had been convicted under Section 307 read with Section 34
of the Indian Penal Code and each was sentenced to imprisonment for a
period of three years and to pay fine of Rs.2000/-, when they moved
an application under Section 389 of Code of Criminal Procedure for
suspension of the sentence of imprisonment, the High Court had
rejected the application, the Supreme Court, following the
observations made in the case of Bhagwan Rama Shinde Gosai, while
allowing the appeal filed by the convict, had kept in abeyance the
order of conviction passed by the trial Court till the disposal of
the appeal filed by the convict and also had directed the release of
the convict on bail.
In
the case of Kishori Lal v. Rupa and others, reported in (2004)
7 SCC 638, the Supreme Court has indicated the factors that
require to be considered by the Courts while granting benefit under
Section 389 in cases involving serious offences like murder etc., it
is useful to refer to the observations made therein. They are :-
“Section
389 of the Code deals with suspension of execution of sentence
pending the appeal and release of the appellant on bail. There is a
distinction between bail and suspension of sentence. One of the
essential ingredients of Section 389 is the requirement for the
appellate Court to record reasons in writing for ordering suspension
of execution of the sentence or order appealed against. If he is in
confinement, the said Court can direct that he be released on bail or
on his own bond. The requirement of recording reasons in writing
clearly indicates that there has to be careful consideration of the
relevant aspects and the order directing suspension of sentence and
grant of bail should not be passed as a matter of routine.
The
appellate Court is duty-bound to objectively assess the matter and to
record reasons for the conclusion that the case warrants suspension
of execution of sentence and grant of bail. In the instant case, the
only factor which seems to have weighed with the High Court for
directing suspension of sentence and grant of bail is the absence of
allegation of misuse of liberty during the earlier period when the
accused-respondents were on bail.
The
mere fact that during the trial, they were granted bail and there was
no allegation of misuse of liberty, is really not of much
significance. The effect of bail granted during trial loses
significance when on completion of trial, the accused persons have
been found guilty. The mere fact that during the period when the
accused persons were on bail during trial there was no misuse of
liberties, does not per se warrant suspension of execution of
sentence and grant of bail. What really was necessary to be
considered by the High Court is whether reasons existed to suspend
the execution of sentence and thereafter grant bail. The High Court
does not seem to have kept the correct principle in view.”
Taking
into consideration the position of law as can be gathered from
various judgments of the Supreme Court, it is very clear that
discretion at the time of considering the plea of the accused for
suspension of sentence pending final hearing of appeal has to be
exercised judiciously and not as a matter of course. The fact that
the sentence is for a fixed period and that the accused was on bail
pending trial can be one of the relevant considerations for the
purpose of suspending the substantive order of sentence but, they
cannot be the sole consideration.
I
am of the view that while considering the application for suspension
of substantive order of sentence, the endeavour should be to see as
to whether the case presented by the prosecution and accepted by the
trial Court can be said to be a case in which, ultimately, the
accused-appellant stands for fair chances of acquittal. If the answer
to the above stated question is in the affirmative, as a necessary
corollary, I shall have to see that if ultimately the
accused-appellant appears to be entitled to have acquittal at the
hands of this Court, he should not be kept behind the bars for a
pretty long time till the conclusion of the appeal, which, usually
takes very long time for decision and disposal.
I
have gone through the case of the prosecution. I have also gone
through the judgment of the trial Court and considering the nature of
the evidence on record, though at the stage of considering an
application under Section 389 of the Code for suspension of sentence
the Court cannot appreciate the evidence but, at least the Court can
look into the reasonings assigned by the trial Court along with some
evidence on record.
In
the present case, prima facie, I am of the view that the offences
punishable under Sections 395 and 397 IPC are not sustainable. This
is my prima facie opinion. The reason for this is obvious. Case of
the prosecution right from the beginning appears to be very specific
and clear. It appears that the first informant, the injured,
developed some intimacy with a girl named Gitaben Patel. As a result
of this intimacy they got married. The accused-applicant herein and
the other co-accused who have been convicted by the trial Court are
all very close relatives of Gitaben Patel. They did not approve the
relations of the first informant, the injured with Gitaben and also
got annoyed by the fact that the first informant got married with
Gitaben without the consent of the family members of Gitaben. Due to
this reason, it appears that on the fateful day of the incident a
quarrel ensued, as a result of which the first informant was badly
thrashed by the accused-applicant along with the other co-accused and
this was with the sole intention of teaching him a lesson for taking
the extreme step of getting married with Gitaben surreptitiously.
Now,
in this background, it appears that the prosecution came forward with
a case that when the first informant was being assaulted, at that
point of time, the accused-applicant and the other co-accused
snatched away some gold ornaments, a watch, mobile phone and some
cash. It is the case of the prosecution that the first informant i.e.
the injured and his witnesses were robbed of these articles on a gun
point. Firstly, it deserves to be noted that the accused-applicants
have been acquitted from the charge under the Arms Act.
Now,
in this background of the entire prosecution case and the evidence on
record, can it be said that the common object of the unlawful
assembly was to commit an offence of dacoity. Can it be said that the
motive behind the crime was commission of dacoity or whether the
common object of the unlawful assembly was to thrash the first
informant for the reason that he developed intimacy with Gitaben and
got married with Gitaben surreptitiously without seeking any
permission from the family members of Gitaben. This is the core issue
which, prima facie, needs to be considered in the appeal. However,
prima facie, I am of the view that without going much into
appreciation of evidence the conviction under Sections 395 and 397
appears to be unsustainable. I am of the view that the Court owes a
duty to consider, as to whether the accused has a fair chance of
succeeding in the appeal or not ? I may consider my prima facie
opinion in light of what has been explained by the Division Bench of
this High Court so far as Section 390 of IPC is concerned. The
Division Bench of this High Court, in the case of Himatsing
Shivsing v. The State of Gujarat, reported in 1961 GLR 678,
has observed as under:-
Theft
amounts to ‘robbery’ if, in order to the committing of the theft, or
in committing the theft, or in carrying away or attempting to carry
away property obtained by the theft, the offender for that end,
voluntarily causes or attempts to cause to any person death or hurt
or wrongful restraint, or fear of instant death or of instant hurt,
or of instant wrongful restraint. Before theft can amount to
‘robbery’, the offender must have voluntarily caused or attempted to
cause to any person death or hurt or wrongful restraint, or fear of
instant death or of instant hurt, or of instant wrongful restraint.
The second necessary ingredient is that this must be in order to the
committing of the theft, or in committing the theft, or in carrying
away or attempting to carry away property obtained by the theft. The
third necessary ingredient is that the offender must voluntarily
cause or attempt to cause to any person hurt etc., for that end, that
is, in order to the committing of the theft or for the purpose of
committing theft or for carrying away or attempting to carry away
property obtained by the theft. It is not sufficient that in the
transaction of committing theft hurt etc., had been caused. If hurt
etc., is caused at the time of the commission of the theft but for an
object other than the one referred to in sec.390, I.P.Code, theft
would not amount to robbery. It is also not sufficient that hurt had
been caused in the course of the same transaction as commission of
the theft. The three ingredients mentioned in sec.390, I.P.Code, must
always be satisfied before theft can amount to robbery, and this has
been explained in Bishambhar Nath v. Emperor, A.I.R. 1941 Oudh, 476,
in the following words:-
The
words “for that end” in sec.390 clearly mean that
the hurt caused by the offender must be with the express object of
facilitating the committing of the theft, or must be caused while the
offender is committing the theft or is carrying away or is attempting
to carry away the property obtained by theft. It does not mean that
the assault or the hurt must be caused in the same transaction or in
the same circumstances.
In
Karuppa Gounden v. Emperor, A.I.R. 1918 Madras 321,
which followed two Calcutta cases of Otaruddi Manjhi v. Kafiluddi
Manjhi, 5 C.W.N. 372, and Kind Emperor v. Mathura Thakur, 6 C.W.N.
72, it has been observed at page 824 as follows :
Now
it is our duty to give effect to the words “for that end”.
It would have been open to the legislature to have used other words
which would not raise the difficulty that arises here. The Public
Prosecutor has been forced to argue that “for that end”
must be read as meaning ‘in those circumstances’. In my opinion we
cannot do that in construing a section in the Penal Code.
Undoubtedly, words ‘in those circumstances’ would widen the
application of the section and we are not permitted to do that. The
matter has been considered in two judgments of the Calcutta High
Court one of which is reported as Otaruddi Manjhi v.Kafiluddi Manjhi
5 C.W.N. 372. Their Lordships put the question in this way:
It
seems to us that the whole question turns upon the words “for
that end”. Was any hurt or fear of instant hurt, that was
caused in the present case, caused for the end of the commission of
the theft ? We think not. It seems to us that whatever violence was
used for the purpose of dispossessing the persons who were already in
possession of the premises in question and had no relation to the
commission of theft, although theft was committed at the same time.
The
language used in another case reported as King Emperor v. Mathura
Thakur, 6 C.W.N. 72, is as follows :-
The
question here arises whether Mathura Thakur when he attacked Soman
Dhania, did so for the end referred to, namely, for the purpose of
carrying away the paddy, which had been harvested.
Those
judgments in my opinion state the obvious intention of the section
and we are bound to give effect to it and I, therefore, follow the
decisions in those two cases.
In
the last paragraph of the judgment, the Division Bench observed as
under:-
Ordinarily,
if violence or hurt etc. is caused at the time of theft, it would be
reasonable to infer that violence or hurt was caused for facilitating
the commission of theft or for facilitating the carrying away of the
property stolen or for facilitating the attempt to do so. But, there
may be something in the evidence to show that hurt or violence was
caused not for this purpose but for a different purpose.
In
the overall conspectus of the entire matter, I am of the view that
the accused-applicant is entitled to seek suspension of the
substantive order of sentence imposed by the trial Court pending
final disposal of the Appeal. No exceptional circumstances have been
brought on record by the State to deny suspension of sentence pending
trial.
It
goes without saying that any observation touching the merits of the
case is purely for the purpose of deciding the questions of
suspension of substantive order of sentence pending appeal and grant
of bail and shall not be construed as an expression of final opinion
in the main matter.
In
this view of the matter, the Application succeeds and the same is
allowed. The substantive order of sentence imposed by the trial Court
vide judgment and order dated 21st May 2011 passed in
Sessions Case No.159/2007 is suspended till the final disposal of the
substantive appeal and the accused-applicant is ordered to be
released on bail on his furnishing a bond of Rs.25,000=00 (Rupees
Twenty Five Thousand Only) with solvent surety of the like amount to
the satisfaction of the trial Court, on the following terms and
conditions that the accused-applicant:-
(a)
shall maintain law and order.
(b)
shall not indulge in any activity leading to breach of public peace
and tranquility.
(c)
shall not, in any manner, try to approach the prosecution witnesses.
(d)
shall not leave the State of Gujarat without prior permission of
this Court.
Rule
made absolute.
(J.B.PARDIWALA,
J.)
/moin
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