Masood Ali Khan v. State of U.P. and Ors.
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the order of a Division
Bench of the Allahabad High Court granting bail to the
B respondent Nos. 2 to 4 during the pendency of Criminal Appeal
No. 3693 of 2007.
3. Background facts as projected by the complainant in
FIR Case Crime No.198 of 2005 of P.S. Kotwali district,
c Rampur, Uttar Pradesh are as follows:
The FIR was lodged on 29.5.2005 stating that the
respondent armed with deadly weapons alongwith co-accused
Chhote and Raza came to a milk dairy where brother of the
appellant namely Javed (hereinafter referred to as the
D 'deceased') was milking the buffaloes. He was attacked with
Palaia Daon - a sharp edged weapon, knife and dagger due
to which he fell down after receiving the fatal injuries. The
accused persons thereafter fled away towards the forest after
terrorizing people by firing in the air. Prior to this incident,
E respondents Lalam and Murshad and co-accused Chhote had
stolen a buffalo of the deceased and for that they were required
to pay Rs.20,000/- as per the decision of the panchayat held
earlier. Appellant brought the injured to the hospital where he
was declared dead. The incident had taken in a broad day light
F in a busy Hazratpur crossing at Rampur City and was witnessed
by many persons.
After investigation, charge sheet was filed. On the basis
of statement made by respondent Lalam recovery of a Pata!
G was made. Subsequently, blood stained dagger was also
recovered. Similarly, one country made pistal and five life
cartridges were recovered. Accused Raza Ali could not be
apprehended and he has absconded. Learned Additional
Sessions Judge, Rampur, placing reliance on the evidence of
H the witnesses found the respondents guilty. Each of the
MASOOD ALI KHAN v. STATE OF U.P. AND ORS. 863
[DR. ARIJIT PASAYAT, J.)
respondents 2 to 4 and co-accused Chhote was awarded life A
sentence. An appeal (Criminal Appeal No. 3693 of 2001) was
filed before the High Court. The respondents filed an application
for release on bail. By the impugned order bail has been
granted.
4. Learned counsel for the appellant submitted that the
High Court's order is indefensible. By a practically non
reasoned order, bail has been granted. Various other factors
have been pointed out, they are essentially as follows:
(a) No opportunity was given by the High Court to C
public prosecutor as required under amended proviso (1)
of Section 389 Cr.P.C.
(b) The Division bench completely ignored the fact
that respondents Lalam and Akbar during the trial had fled D
from the custody and were convicted for this offence by
C.J.M. Rampur.
(c) High Court ignored the fact that it was the case
of brutal broad daylight murder for which accused were not
granted bail by the Sessions or High Court during Trial. E
(d) No cogent or detailed reasons were given by the
High Court while granting bail to Respondents in their
appeal against their conviction which is a mandatory
requirement of Session 389 Cr.P,C, F
(e) Division Bench of High Court ironically and
without applying its judicial mind granted bail to the
Respondents in their appeal and suspended their
sentence of life imprisonment during pendency of their G
appeal even when there was no application under Section
389 Cr.P.C. for suspension of sentence by respondents.
(f) The Division Bench of the High Court also ignored
the criminal history of the accused persons and did not
take into consideration the possibility of misuse of liberty H
A by respondents.
5. There is no appearance on behalf of respondents in
spite of service of notice.
6. At the outset it needs to be noticed that the High Court
B has not referred to any circumstance which warrants grant of
bail. The only reason given reads as follows:
"The allegations made in the FIR and the nature of injuries
mentioned in the post mortem report and the weapons
alleged to have been used by the present appellants in the
incident are sufficient to grant bail to the appellants as the
fatal ante-mortem injuries appear to have been caused by
Patal (Dav), which has been assigned on the co-accused
Chhotey."
7. Section 389 of the Code empowers the Court to
suspend the sentence pending the appeal and for release of
the appellant on bail. Section 389 so far relevant reads as
follows:
"389. Suspension of sentence pending the appeal; release
of appellant on bail - (1) Pending any appeal by a
convicted person, the Appellate Court may, for reasons to
be recorded by it in writing, order that he execution of the
sentence or order appealed against be suspended and,
also, if he is in confinement, that he be released on bail,
or on his own bond.
Provided that the Appellate Court shall, before
releasing on bail or on his own bond a convicted person
who is convicted of an offence punishable with death or
imprisonment for life or imprisonment for a term of not less
than ten years, shall give opportunity to the Public
Prosecutor for showing cause in writing against such
release:
Provided further that in cases where a convicted
>t-
MASOOD ALI KHAN v. STATE OF U.P. AND ORS. 865
[DR. ARIJIT PASAYAT, J.]
person is released on bail it shall be open to the Public A
Prosecutor to file an application for the cancellation of the
bail.
(2) The power conferred by this section on an Appellate
Court may be exercised also by the High Court in the case 8 of an appeal by convicted person to a Court subordinate
thereto.
(3) Where the convicted person satisfies the Court by which
he is convicted that he intends to present an appeal, the
Court shall, - C
(i) where such person, being on bail, is
sentenced to imprisonment for a term not
exceeding three years, or
(ii) where the offence of which such person has D
been convicted is a baliable one, and he is
on bail,
order that the convicted person be released on bail unless
there are special reasons for refusing bail, for such period E
as will afford sufficient time to present the appeal and
obtain the orders of the Appellate Court under sub-section
(1), and the sentence of imprisonment shall, so long as he
is so released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to F
imprisonment for a term or to imprisonment for life, the time
during which he is so released shall be excluded in
computing the term for which he is so sentenced."
" 8. Section 389 of the Code deals with suspension of G
execution of sentence pending the appeal and release of the
1- 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 H
866 SUPREME COURT REPORTS (2009] 1 S.C.R.
A 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 -t- •
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
B and grant of bail should not be passed as a matter of routine.
9. 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 looses
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
D 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. .....
' 10. In Vijay Kumar v. Narendra and others (2002 (9) SCC
E 364) and Ramji Prasad v. Rattan Kumar Jaiswal and another
(2002 (9) sec 366), it was held by this Court that in cases
involving conviction under Section 302 IPC, it is only in
exceptional cases that the benefit of suspension of sentence
can be granted. The impugned order of the High Court does
F not meet the requirement. In Vijay Kumar's case (supra) it was
held that in considering the prayer for bail in a case involving a
serious offence like murder punishable under Section 302 IPC,
the Court should consider the relevant factors like the nature
of accusation made against the accused, the manner in which
the crime is alleged to have been committed, the gravity of the
'
offence, and the desirability of releasing the accused on bail ..
after they have been convicted for committing the serious
)'-
offence of murder. These aspects have not been considered
by the High Court, while passing the impugned order.
H 11. The parameters governing Section 389 of the Code
MASOOD ALI KHAN v. STATE OF U.P. AND ORS. 867
[DR. ARIJIT PASAYAT, J.]
were highlighted in Kishori Lal v. Rupa and Ors. (2004 (7) SCC A
638), Vasant Tukaram Pawar v. State of Maharashtra (2005
(5) SCC 281) , Gomti v. Thakurdas and Ors. (2007 (11) SCC
160).
12. Looked at from any angle the order of the High Court
is clearly indefensible and is set aside. Respondents 2 to 4 8
shall surrender to custody forthwith.
13. The appeal is allowed
8.8.8. Appeal allowed. C
fH