JEETU KHATIK versus STATE OF CHHATTISGARH on 11 April 2022

ORDER

Leave granted.

The challenge herein is to the order dated 09.11.2021, wherebythe High Court of Chhattisgarh at Bilaspur has declined the prayer forsuspension of execution of sentence during the pendency of CriminalAppeal No. 1219 of 2021.

The appeal aforesaid has been filed by the petitioner-appellantagainst the judgment and order dated 24.09.2021 passed by the AdditionalSessions Judge (F.T.C.), Manendragarh, District Koriya, Chhattisgarhin Special Criminal Case No. 15 of 2019.

The substance of the accusation against the appellant had beenthat he kidnapped the 9-year-old victim from the custody of her legalguardian and with intention to outrage her modesty, used criminal forceand with sexual intention, held her hand so as to forcefully take her to aplace away from road. It had been the prosecution’s case that the victimgot released her hand and ran while shouting. The Trial Court found theappellant guilty and after recording conviction awarded sentences asfollows: - A

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The submissions on behalf of the appellant before the AppellateDCourt seeking suspension of execution of sentence had been that theTrial Court had overlooked major contradictions and omissions in thestatements of witnesses; and that he was on bail during the trial but didnot misuse his liberty and even after pronouncement of judgment, hewas granted bail for a limited period. It was also submitted that thedisposal of the appeal was likely to take some time and, therefore, theEappellant may be released on bail.

The High Court has proceeded to reject the prayer for suspensionof execution of sentence with reference to the deposition of theprosecutrix, who was nine years of age, with its corroboration from theFmedical evidence. The High Court, of course, made no comments onthe merits of the case but then, ordered that the appeal be listed forhearing in due course.

Learned counsel for the appellant has submitted that the HighCourt has taken too strict and stern view of the matter and has failed toappreciate that the maximum sentence of imprisonment awarded in thisGmatter is of three years and all the sentences are to run concurrently;and the appellant had already served two months of imprisonment untilconsideration of the prayer for suspension by the High Court.

It is submitted that if further execution of sentence is denied, theappellant is likely to serve out the entire or substantial part of the sentenceH

of imprisonment and, thereafter, even if the Appellate Court would bepersuaded to reverse the order of conviction, the deprivation of libertyfor all this time could never be undone.

Learned counsel for the respondent, on the other hand, hasstrenuously argued that for grant of suspension of execution of sentence,special reasons were indeed required in this case; and, with reference tothe decision of this Court in the case of Preet Pal Singh v. State of U.P. & Anr.:(2020) 8 SCC 645 (particularly paragraphs 35 and 38thereof), has argued that for no special and compelling reason forthcomingin this case, the prayer for suspension of execution of sentence hasrightly been rejected.

Having given anxious consideration to the rival submissions andhaving examined the material placed on record with reference to thelaw applicable, we are unable to agree with the submissions made onbehalf of the respondent that, in this matter, where the maximum sentenceof imprisonment is of three years, the appellant ought to be denied theconcession of bail during the pendency of appeal.

The observations in paragraphs 35 and 38 of the decision in PreetPal Singh (supra), as sought to be relied upon by the learned counselfor the respondent, read as under: - “35. There is a difference between grant of bail under Section439 CrPC in case of pre-trial arrest and suspension of sentenceunder Section 389 CrPC and grant of bail, post conviction. In theearlier case, there may be presumption of innocence, which is afundamental postulate of criminal jurisprudence, and the courtsmay be liberal, depending on the facts and circumstances of thecase, on the principle that bail is the rule and jail is an exception,as held by this Court in Dataram Singh v. State of U.P.(2018) 3SCC 22. However, in case of post-conviction bail, by suspensionof operation of the sentence, there is a finding of guilt and thequestion of presumption of innocence does not arise. Nor is theprinciple of bail being the rule and jail an exception attracted, oncethere is conviction upon trial. Rather, the court considering anapplication for suspension of sentence and grant of bail, is toconsider the prima facie merits of the appeal, coupled with otherfactors. There should be strong compelling reasons for grant ofbail, notwithstanding an order of conviction, by suspension of AB

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Asentence, and this strong and compelling reason must be recordedin the order granting bail, as mandated in Section 389(1) CrPC.*** ******

38. In considering an application for suspension of sentence, theappellate court is only to examine if there is such patent infirmityBin the order of conviction that renders the order of convictionprima facie erroneous. Where there is evidence that has beenconsidered by the trial court, it is not open to a court consideringapplication under Section 389 to reassess and/or re-analyse thesame evidence and take a different view, to suspend the executionCof the sentence and release the convict on bail.”

Significant aspect of the matter is that the observations aforesaidhave been made by the Court in relation to a case where the accusedwas convicted, inter alia, of the offence under Section 304-B IPC andwas awarded varying sentences, including that of life imprisonment.DObviously, the observations aforesaid have to be read with reference tothe factual background and context.

The relevant aspects of the present case are that the maximumsentence awarded is of three years’ imprisonment. As regards therequirement of special or compelling reasons, noteworthy it is that oneEof the grounds urged before the High Court on behalf of the appellantwas that looking to the term of sentence awarded, when the disposal ofthe appeal is likely to take time, he may be ordered to be released onbail.

The High Court, while referring to the basis of conviction of theFappellant, did not make any comment as regards the fact that the maximumsentence of imprisonment is of three years and that the hearing of appealis likely to take time. On the contrary, in the concluding part of the orderimpugned, the High Court ordered that the appeal be listed for hearing‘in due course’.

Obviously, the High Court has not found the appeal worth assigningGa priority for hearing. That being the position, if the appeal is to be heardonly on its turn, the likely scenario is that it would not be taken up forhearing immediately by the High Court. If the appeal remains pending indue course and the appellant by that time serves out the sentence ofimprisonment, and then, if there be any possibility of his acquittal or anyH

modification of the conviction/sentence, the injury suffered by him wouldbe practically irreparable.

In our view, these aspects, in the given set of facts andcircumstances of the present case, are themselves of the compellingreasons for suspension of execution of sentence during the pendency ofappeal. There does not appear any other adverse reason to deny therelief to the appellant, like any criminal antecedents before the incidentin question or any blame in the jail conduct.

In the overall circumstances, we are inclined to order suspensionof execution of the remaining part of the sentence awarded to theappellant.

Accordingly, the appeal is allowed; execution of the remainingpart of the sentence awarded to the appellant is ordered to be suspendedduring the pendency of appeal in the High Court; and he is ordered to bereleased on bail on such terms and conditions as may be imposed by theTrial Court.

Bibhuti Bhushan Bose

Appeal allowed.

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