Omprakash Sahni v. Jai Shankar Chaudhary & Anr. Etc.
J. B. PARDIWALA, J.
1. These appeals are at the instance of the original first informant
(brother of the deceased) and are directed against a c ommon order
passed by the High Court of Judicature at Patna in Criminal Ap peal
(DB) No. 322 of 2021 and Criminal Appeal (DB) No.411 of 2021
respectively by which, the High Court suspended the substantive order
of sentence of life imprisonment imposed by the Trial C ourt on the
respondent Nos. 1, 3 and 4respectively herein (convicts) and ordere d
their release on bail pending the final disposal of the two criminal appeals
referred to above.
FACTUAL MATRIX
2. It appears from the materials on record that the res pondents
Nos. 1, 3 and 4 respectively herein alongwith six other co-accused were
put to trial in the Court of Additional Sessions Judge-VII, Vaishali, Hajipur,
District: Vaishali at Hajipur (Bihar) in Sessions Trial No. 280/2019 for
the offences punishable under Sections 302, 120-B, 506 respec tively
read with Section34 of the Indian Penal Code, 1860 (for short, ‘the IPC’)
and Section 27 of the Arms Act, 1959 (for short, ‘the 1959 Act’)
3. The three respondents herein, namely, Jai Shankar Chaudhary,
Abhay Kumar and Ram Babu respectively were held guilty by the Trial
145
Court, of the offence of murder of the brother of the appellant herein,
namely, Manish Kumar. The other co-accused were orde red to be
acquitted.
4. The respondents Nos. 1, 3 and 4 respectively herein went in
appeal before the High Court of Judicature at Patna, challenging the
order of conviction and sentence passed by the Trial Court.
5. The case of the prosecution narrated by the Trial Court in its
judgment dated 12.03.2021 is as under:
“The F.I.R in the instant case had been registered on
14.08.2018, on the basis of written application of info rmant
Om Prakash Sahni, alleging therein that the informa nt Om
Prakash Sahni on 13-08-2018 at about 01:00 P.M. alongwith
his younger brother Manish Kumar, the Block Pramukh ,
Jandaha reached the Office of Block Pramukh, situat ed at
block Jandaha by their alto car. Informant’s brother went i n
his chamber. The driver of the B.D.O. came in his c ar and
told thePramukh that B.D.O. has called him and on s uch
information the Block Pramukh Manish Kumar went to the
residence of B.D.O. in the B.D.O’s car. After somet ime the
Pramukh came back in the same vehicle and as he was
heading towards his chamber at about 03:00 P.M., th e
accused Jai Shankar Chaudhary and Abhay Kumar came and
opened fire on informant’s brother,the Block Pramukh upon
the exhortation by accused Ram Babu Sahni to kill him. The
informant’s brother fell on the ground and both the acc used
waving their pistols, fled away on a motorcycle tow ards
Mahua road. The other two accused Ram Babu Sahni an d
Binod Chaudhary also fled away from the place of occurrence
on one another motorcycle, towards the same direction . The
F.I.R. further states that the informant and the Pr amukh’s
driver namely Anil Kumar alongwith certain others w ere
present at the time of occurrence. They took him to the clinic
of doctor Bindu Jha and on his reference, they took the injured
to the Ganpati Hospital, Hajipur, where he was declare d dead.
Thereafter they took the deceased to Hajipur Sadar Hospital,
where the postmortem examination was carried out and t he
police also reached there and carried out further proceeding.
The F.I.R. also states that the election of block pramukh was
OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &
ANR. ETC. [J. B. PARDIWALA, J.]
held on 02-08-2018 and the Pramukh won the election. Th e
informant in the F.I.R. also states that Umesh Singh Kushwaha,
M.L.A., Mahnar, Binod Chaudhary s/o Ram Lakhan
Chaudhary, Ajeet Kumar s/o Ram Babu Sahni Village Dulaur
P.S. Jandaha, Kundan Sahni (Prakhand Shikshak) s/o Ram
Nandan Sahni Vill Narharpur, Randhir Kumar S/o Late
Masudan Prasad Singh Vill Narharpur, Ranjeet Kumar S/o
Ram Briksh Singh Viii Narharpur, all from P.S. Jandaha and
Ajay Thakur (Teacher) Sankul Sadhan Sevi, Jandaha Vill Nari
Khurd P.S. Patepur Dist Vaishali had earlier threate ned the
informant at Bindi Chowk Road (north from Suresh Chow k)
that they would not allow informant’s brother to wi n the
election and in the event, he wins, they would not let him l ive.
The informant also states that these persons threat ened him
many times and he informed his brother of such fact . The
present Prakhand Siksha Padadhikri, Jandaha also
threatened that he should communicate to the Pramuk h for
not getting involved in the recruitment of Prakhand Shikshak,
otherwise he may face dire consequences. The inform ant is
under the belief that all the abovereferred persons in
conspiracy, have committed the murder of informant’s brother
Manish Kumar.”
6. In the course of the trial, the prosecution examined ten witnesses
as under:
P.W. 1 Raj Kumar Sahni,
P.W. 2 Anil Kumar Sahni,
P.W 3 Rup Kala Devi,
P.W. 4 Dr. Shashidhar Kumar,
P.W. 5 Lal Babu Sahni,
P.W. 6 Laldeo Sahni,
P. W. 7 Om Prakash Sahni/ informant,
P. W. 8 Saroj Kumar Singh,
P.W. 9 Shobhakant Paswan (Investigating Officer) and
P.W. 10 Sunil Kumar Singh (Investigating Officer).
147
7. The Trial Court, upon evaluation of the oral as well as
documentary evidence on record, in the final analysis observed in paras
40 and 41 respectively as under:
“40. On considering the submissions made by learned counsel
of parties and the conjoint perusal of prosecution e vidence
including the cross-examination done by learned counsels for
defence this court finds that the prosecution has led cred ible
evidence that on 13-08-2018, at about 03:00 PM at Jandaha
block, the accused Ram Babu Sahni and Binod Chaudha ry
exhorted Jai Shankar Chaudhary and Abhay Kumar Sahn i
to kill Manish Sahni. On such provocation, Jai Shan kar
Chaudhary and Abhay Kumar Sahni shot the bullet ove r
Manish Sahni. He was then taken to doctor Bindu Jha in
Jandaha and was referred from there to Hajipur. He was take n
to Hajipur Ganpati Hospital by an ambulance, where the
doctor declared him dead. As per the evidence of PW -7/
informant, the Manish Sahni alongwith him and the d river
P.W. 2 reached the block Jandaha at about 01:00 P.M., they
were sitting in his chamber, when the B.D.O. called him through
his driver and he went to meet the B.D.O. to his resident from
the B.D.O’s vehicle. When he arrived back at about 03:00
P.M., as he was heading towards his chamber, the accu sed
Ram Babu Sahni and Binod Chaudhary exhorted Jai Shankar
Chaudhary and Abhay Kumar Sahni to kill Manish Sahn i.
On such provocation, Jai Shankar Chaudhary and Abha y
Kumar Sahni shot the bullet over Manish Sahni and he fell
on the ground. All the four accused fled away from norther n
gate towards Mahua road. Manish Sahni was then take n to
doctor Bindu Jha in Jandaha and was referred from there to
Hajipur. He was taken to Hajipur Ganpati Hospital b y an
ambulance, where the doctor declared him dead. His autopsy
was performed at Sadar Hospital, Hajipur. The reason behind
the occurrence in question is that the accused Jai Shankar
Chaudhary was earlier elected the block Pramukh, but was
defeated by Manish Sahni in no confidence motion. T he
Manish Sahni then became Block Pramukh. All the accuse d
persons are said to conspire for commission of the alleged
offence. The P.W. 1 Raj Kumar Sahni in his evidence has
proved that the Pramukh Manish Sahni came from B.D. O’s
OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &
ANR. ETC. [J. B. PARDIWALA, J.]
vehicle and was heading towards his chamber, when accused
Jai Shankar alongwith another opened fire over Mani sh
Sahni. He has stated that it was Jai Shankar, who shot Manish
Sahni. P.W. 2, the driver of Block Pramukh namely Anil Kumar
Sahni also proved that Manish Sahni arrived from B.D .O’s
vehicle. The accused Jai Shankar Chaudhary and Abha y
Kumar Sahni were already present there. The other accu sed
Ram Babu Sahni and Binod Chaudhary reached there an d
said “kya dekhte ho goli maaro”. Jai Shankar Chaudh ary
shot the bullet and thereafter Abhay Kumar shot the other
bullet. The Pramukh fell on the ground and the info rmant
and the witness P.W.2 are said to take him to hospi tal at
Jandaha, from where he was referred to Hajipur Sada r
Hospital, but he died on the way. P.W. 3 the wife of deceased
is not an eye witness. However, she has testified the death of
her husband by accused persons in the manner as stated by
witnesses. In addition to these facts, she has also stated that
when her husband won the election, he was given threat f or
life and she had advised her husband to remain alert. P.W. 5
in his statement-in-chief has proved the date and t ime of
occurrence i.e., 13-08-2018 at 03:00 P.M. He, an eye witness
also testifies the prosecution story that the accus ed Jai
Shankar Chaudhary and Abhay Kumar opened fire over
Manish Sahni on the provocation and exhortation by Ram
Babu Sahni and Binod Chaudhary. P.W. 6 in his stateme nt-
in-chief also proves the date 13-08-2018 and time 03:00 P.M.
of the alleged occurrence. He claims to be an eye witnes s of
the occurrence and testifies that Binod Chaudhary and Ram
Babu came by a bike and exhorted Jai Shankar Chaudhar y
and another person, whom he did not identify. On su ch
exhortation and provocation, Jai Shankar Chaudhary and
the other one opened fire over Manish Sahni. P.W. 8 Saroj
Kumar Singh also claims to be an eye witness and test ifies
the fact that on the instigation of Binod Chaudhary , the
accused Jai Shankar Chaudhary opened fire over Mani sh
Sahni and he does not identify the other person, wh o also
shot bullet over Manish Sahni. However, the date of
occurrence has been contradicted by PW-8 to be 30.08.2018.
The accused Binod Chaudhary whose name reflects in the
149
evidence repeatedly is not facing the instant trial befor e court.
The doctor has proved the postmortem report and the injuries
thereon are the two entry wounds, one each over left upper
chest and over epigastrium alongwith two exit wounds, one
each on right sub costal region impugned posterior axillary
line and the other over right lumbar region in posterior axillary
line. The two investigating officers who carried ou t the
investigation, have proved genuineness of the inves tigation
process as has been discussed in the preceding parag raphs.
The defence could not bring such material or contradicti ons
or any other evidence on record to falsify the fact s placed
and proved by prosecution.
41. Hence, on the basis of material and the evidenc e both
oral and documentary, as available on record, this court
arrives at conclusion that the prosecution has proved its c ase
against accused Jai Shankar Chaudhary, Abhay Kumar alias
Abhay Sahni and Ram Babu Sahni, beyond reasonable doubts
that on exhortation of Ram Babu Sahni, the other two accused
Jai Shankar Chaudhary and Abhay Kumar @ Abhay Sahni
opened fire over Manish Sahni, causing his death and thereby
committing his murder. This court finds them guilty of
committing the murder of Manish Sahni in furtherance of their
common intention.”
8. The three convicts before us i.e., the respondents Nos. 1, 3 and
4 respectively prayed before the High Court that they be released on
bail pending the final disposal of their appeals by s uspending the
substantive order of sentence of life imprisonment.
9. The High Court suspended the substantive order of sentence
of all the three convicts and ordered their release on b ail vide the
impugned order dated 16.09.2022. The High Court observed thus:
“By the impugned judgment and order of conviction d ated
12.03.2021 and order of sentence dated 15.03.2021 p assed
by the learned Additional Sessions Judge-VII, Vaish ali at
Hajipur, in Sessions Trial No. 280/2019 arising out of
Jandaha P.S. Case No. 202/2018, the appellant has b een
convicted and sentenced as under:
OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &
ANR. ETC. [J. B. PARDIWALA, J.]
75 per cent of the fine amount has been ordered to be paid to
the widow of deceased Manish Sahni, namely, Rup Kala Devi
and 25 per cent of the amount has been ordered to be paid to
the State of Bihar.
In compliance of this Court’s order dated 03.08.2022,
the State has filed a written objection in terms of the first
proviso to Section 389(1) of the Criminal Procedure Code.
We have heard Mr. Vasant Vikas, learned counsel
appearing on behalf of the appellant in Criminal Appeal (DB)
No. 322 of 2021; Mr. Sanjay Singh, learned Senior Co unsel
appearing on behalf of the appellant in Criminal Appeal (DB)
No. 411 of 2021 and learned Additional Public Prose cutor
for the State.
Learned counsel appearing on behalf of the appellants
have submitted that for the occurrence said to have taken
place at 03:00 pm, at a public place, on 13.08.2018, the First
Information Report came to be registered on 14.08.2018, based
on written report of the informant (P.W.-7) submitted at 01:00
pm. The informant has claimed to be an eye-witness o f the
occurrence. However, there is no explanation for th e late
submission of the written report, naming these appella nts as
151
the assailants. It has been argued that it is evident fr om the
First Information Report that political rivalry bet ween the
deceased and these appellants has been disclosed as the
reason why the deceased was killed by these appellants. They
accordingly submit that disclosure of names of these appellants
in the First Information Report, as the main assailants, is an
afterthought and in that background, the late registrati on of
First Information Report casts a serious doubt on the veraci ty
of the prosecution’s case. It has, further, been ar gued that
though (P.W.-7), the informant, has claimed to be a n eye-
witness to the occurrence, who had carried the decea sed in
the injured condition to a nearby hospital and thereafte r to
Sadar hospital, after the deceased was declared dea d in a
private hospital; his own deposition contradicts thi s version
as asserted in the First Information Report inasmuc h as in
response to a question during the course of cross-examinati on,
he admitted that he had not gone to the Sadar hospital wi th
the deceased. It has further been argued that thoug h the
appellants were produced during the course of the t rial
through video conference from the jail, but there is no evidence
that the prosecution’s witnesses identified these a ppellants
during the course of the trial.
Learned Additional Public Prosecutor opposing
appellants’ prayer for bail has submitted that sinc e the
appellants are the main assailants, as disclosed in th e First
Information Report, which has been substantiated by al l the
eye-witnesses during the course of the trial, who ha ve been
consistent in their depositions and political rivalr y between
the deceased and these appellants, being an admitte d fact,
such animosity adds credence to the deposition of t he eye-
witnesses.
We have perused the impugned judgment and order of
the trial court. We have given our anxious considerat ion to
rival submissions advanced on behalf of the parties. We have
perused the original copy of the First Information Report
available with the lower court records from which it is manifest
that there have been over-writings as regards the date when
the said written report of the informant (P.W.-7) was s ubmitted
in the police station.
OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &
ANR. ETC. [J. B. PARDIWALA, J.]
It is the prosecution’s case, as disclosed in the F irst
Information Report as also set up at the trial, tha t the
occurrence had taken place at 03:00 pm on 13.08.201 8 in
the Block office. The deceased was Pramukh of the said bl ock.
It has been asserted in the First Information Report that
when the informant and the deceased were about to e nter
into his (deceased’s) chamber in the Block office, a ppellant
Jai Shankar Chaudhary and Abhay Kumar opened fire o n
the instigation of accused Ram Babu Sahani. The informan t
and others are said to have taken the deceased, in injured
condition, to a private hospital, where he was declared dead.
The dead body of the deceased was thereafter taken to Sadar
hospital, where the inquest report was prepared by the poli ce
officer and post-mortem was also carried out on the same
date, i.e., 13.08.2018. In the aforesaid background, we find
substance in the submission made on behalf of the appellants
that there was no cogent explanation for the inform ant to
have filed his written statement on the next day at 01 :00 p m,
implicating these appellants as the main assailants. Fur ther,
the informant (P.W.-7) does not prima facie appear to be
truthful, particularly in view of the evidence of the pr osecution
witnesses to the effect that the body of the deceased was tak en
by villagers to the hospital and not by the informant.
In the abovementioned peculiar facts and circumstances
of the case, in our view, inordinate delay in filing of the written
report leading to registration of First Information Report
appears to be a valid ground for doubting the case of the
prosecution, for the purpose of exercise of discret ion under
Article 389(1) of the Criminal Procedure Code.
Considering the facts and circumstances as noted above,
the prayer made on behalf of the appellants for their relea se
on bail is allowed.
Let the appellants, namely, Jai Shankar Chaudhary [In
Criminal Appeal (DB) No. 322 of 2021], Abhay Kumar @
Abhay Sahni and Ram Babu Sahni [In Criminal Appeal (DB)
No. 411 of 2021] be released on bail during the pendency of
appeal on furnishing bail bond of Rs. 10,000/- (Ten Thousand)
with two sureties of the like amount each to the sat isfaction
153
of learned Additional Sessions Judge-VII, Vaishali at Hajipur,
in Sessions Trial No. 280 of 2019 arising out of Jandaha P.S.
Case No. 202of2018.
The sentence shall remain suspended in the meanwhile.
Realisation of fine shall also remain stayed.”
(Emphasis supplied)
10. The original first informant (brother of the deceased) being
aggrieved and dissatisfied with the aforesaid order passed by the High
Court has come up in appeals before us.
SUBMISSIONS ON BEHALF OF THE APPELLANT
11. Mr. R. Chandrachud, the learned counsel appearing for the
appellant vehemently submitted that the High Court committed a serious
error in passing the impugned order thereby releasing the three convicts
on bail pending final disposal of their respective appeals by suspending
the substantive order of their sentence,in exercise of power under Section
389 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’).
12. The learned counsel would submit that once the accused stood
convicted for a very serious offence like murder, the presumption of
innocence would no longer exist and the High Court is expected to b e
very slow in granting bail. He submitted that the High C ourt while
considering the plea of the three convicts for suspension of substantive
order of sentence has virtually appreciated the evidence. The High Court
could not have gone into the issues like over-writings i n the First
Information Report, inordinate delay in lodging the First Inform ation
Report etc. while considering the plea of the convicts for suspension of
sentence of life imprisonment.
13. The learned counsel would submit that the entire case of the
prosecution is based on ocular evidence. The Trial Court having believed
and accepted the version of the appellant herein, who is one of the
eyewitnesses to the incident, the High Court could not have so lig htly
and casually suspended the substantive order of sen tence of life
imprisonment.
14. In such circumstances referred to above, the learned counsel
appearing for the appellant prayed that there being merit in his appeals,
those may be allowed and the impugned common order passed by the
High Court may be set aside.
OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &
ANR. ETC. [J. B. PARDIWALA, J.]
SUBMISSIONS ON BEHALF OF THE RESPONDENT
NOS. 1, 3 AND 4 RESPECTIVELY (CONVICTS)
15. Mr. V.K. Shukla, the learned Senior Counsel appearing for
the convicts, on the other hand, vehemently opposed t he appeals,
submitting that no error not to speak of any error of law could be said to
have been committed by the High Court in passing the impugned order
suspending the substantive order of sentence, imposed on the respective
convicts by the Trial Court. He would submit that the entire case put up
by the prosecution is highly doubtful and politically motivated. The
prosecution has suppressed the true origin of the occurrence. He would
submit that his clients have been falsely implicated in the alleged crime.
16. The learned Senior Counsel further submitted that this Court
should be slow in exercise of its power under Articl e 136 of the
Constitution while looking into a discretionary order, passed by the High
Court under Section 389 of the CrPC. The impugned order passed by
the High Court cannot be termed as absolutely vague or perverse and, in
such circumstances, this Court may not disturb the impugned order.
17. In the last, the learned Senior Counsel submitted that it will
take years by the time, the appeals come up for final hearing and for all
that period of time his clients would be languishing in jai l. He would
submit that there are very fair chances of his clients getting acquitted in
the criminal appeals and in such circumstances, there is nothing wrong if
they are allowed to remain on bail, pending the final disposa l of their
respective criminal appeals.
18. In such circumstances referred to above, the learned Se nior
Counsel prayed that there being no merit in the appeals, those may be
dismissed.
ANALYSIS
19. Having heard the learned counsel appearing for the partie s
and having gone through the materials on record, the only question that
falls for our consideration is whether the High Court committed a ny
error in passing the impugned order?
SECTION 389 OF THE CRPC AND THE LAW ON THE
SUSPENSION OF SENTENCE:
20. Section 389 of the CrPC reads thus:
155
“389. Suspension of sentence pending the appeal; releas e of
appellant on bail .—(1) Pending any appeal by a convicted
person, the Appellate Court may, for reasons to be r ecorded
by it in writing, order that the execution of the s entence or
order appealed against be suspended and, also, if h e 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 i s
convicted of an offence punishable with death or imprisonment
for life or imprisonment for a term of not less than ten ye ars,
shall give opportunity to the Public Prosecutor for showing
cause in writing against such release:
Provided further that in cases where a convicted person
is released on bail it shall be open to the Public Prosecu tor 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 of
an appeal by a convicted person to a Court subordin ate
thereto.
(3) Where the convicted person satisfies the Court b y
which he is convicted that he intends to present an appeal,
the Court shall,—
(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 bee n
convicted is a bailable 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 as will afford sufficient time to present the a ppeal and
obtain the orders of the Appellate Court under sub- section
(1), and the sentence of imprisonment shall, so long as h e is
so released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to
imprisonment for a term or to imprisonment for life, the ti me
during which he is so released shall be excluded in computin g
the term for which he is so sentenced.”
OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &
ANR. ETC. [J. B. PARDIWALA, J.]
21. Suspension conveys postponement or temporarily preventing
a state of affairs from continuing. According to th e Black’s Law
Dictionary (Seventh Edition), the word ‘suspend’ means, inter alia , to
interrupt; postpone; defer. The Black’s Law Dictionary (Seventh Edition)
describes the word ‘suspension’ to mean, inter alia, an act of temporarily
delaying, interrupting or terminating something. Attributing the same
meaning to the word ‘suspend’ as pointed out above, the New Oxfor d
Dictionary of English (1998 Edition) describes suspend as temporarily
preventing from continuing or being enforced or given effect or defer or
delay an action, event or judgment.
22. Thus, when we speak of suspension of sentence a fter
conviction, the idea is to defer or postpone the execution of the sentence.
The purpose of postponement of sentence cannot be achieved by detaining
the convict in jail; hence, as a natural consequence of postponement of
execution, the convict may be enlarged on bail till further orders.
23. The principle underlying the theory of criminal jurisprudence
in our country is that an accused is presumed to be innocent till he is held
guilty by a court of the competent jurisdiction. Once the accused is held
guilty, the presumption of innocence gets erased. In the same manner, if
the accused is acquitted, then the presumption of innocence gets further
fortified.
24. From perusal of Section 389 of the CrPC, it is evident t hat
save and except the matter falling under the category of sub-s ection 3
neither any specific principle of law is laid down nor any cr iteria has
been fixed for consideration of the prayer of the convict an d further,
having a judgment of conviction erasing the presumption leaning in favour
of the accused regarding innocence till contrary recorded by the court
of the competent jurisdiction, and in the aforesaid background, the re
happens to be a fine distinction between the prayer for ba il at the pre-
conviction as well as the post-conviction stage, viz Sections 437, 438,
439 and 389(1) of the CrPC.
25. In Rajesh Ranjan Yadav alias Pappu Yadav v. CBI , reported
in (2007)1 SCC 70, it has been held under paras 8, 9 and 10 respectively,
which are as follows:
“8. Learned counsel for the appellant then relied on t he
decision of this Court in Kashmira Singh v. State o f
Punjab [(1977) 4 SCC 291 : 1977 SCC (Cri) 559] . In para 2
157
of the said decision it was observed as under : (SCC pp. 29 2-
93)
“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 f or the
Court to tell a person:‘We have admitted your appea l
because we think you have a prima facie case, but
unfortunately we have no time to hear your appeal f or
quite a few years and, therefore, until we hear your appea l,
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 q uite
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 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 su ch 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 thi s
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 tim e,
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.”
9. Learned counsel for the appellant then relied on t he
decision of this Court in Bhagirathsinh v. State of
Gujarat [(1984) 1 SCC 284 : 1984 SCC (Cri) 63] , Shaheen
Welfare Assn. v. Union of India [(1996) 2 SCC 616 : 1996
SCC (Cri) 366] , Joginder Kumar v. State of U.P. [( 1994) 4
SCC 260 : 1994 SCC (Cri) 1172] , etc.
OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &
ANR. ETC. [J. B. PARDIWALA, J.]
10. In our opinion none of the aforesaid decisions can be
said to have laid down any absolute and unconditional rule
about when bail should be granted by the Court and when it
should not. It all depends on the facts and circumst ances of
each case and it cannot be said there is any absolu te rule
that because a long period of imprisonment has expired bai l
must necessarily be granted.”
(Emphasis supplied)
26. This Court, in the case of Ash Mohammad v. Shiv Raj Singh
alias Lalla Babu and Another , reported in (2012)9 SCC 446, has
observed in para 30, as follows:
“30. We may usefully state that when the citizens are scare d
to lead a peaceful life and this kind of offences ushe r in an
impediment in establishment of orderly society, the duty of
the court becomes more pronounced and the burden is heavy.
There should have been proper analysis of the crimi nal
antecedents. Needless to say, imposition of conditi ons is
subsequent to the order admitting an accused to bai l. The
question should be posed whether the accused deserv es to
be enlarged on bail or not and only thereafter issu e of
imposing conditions would arise. We do not deny for a moment
that period of custody is a relevant factor but simultaneou sly
the totality of circumstances and the criminal antecedents ar e
also to be weighed. They are to be weighed in the sc ale of
collective cry and desire. The societal concern has to be k ept
in view in juxtaposition of individual liberty. Reg ard being
had to the said parameter we are inclined to think th at the
social concern in the case at hand deserves to be given priori ty
over lifting the restriction on liberty of the accused .”
(Emphasis supplied)
27. In Bhagwan Rama Shinde Gosai and Others v. State of
Gujarat , reported in (1999) 4 SCC 421, wherein the appellants were
convicted by the Trial Court against which, the appeal was pending before
the High Court, the High Court successively rejected the pray er for
grant of bail till the pendency of appeal after sus pending the
sentence.Thus, it has been held as follows:
159
“3. When a convicted person is sentenced to a fixed pe riod
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 exceptio nal
circumstances. Of course, if there is any statutory restric tion
against suspension of sentence it is a different matter. Similarly,
when the sentence is life imprisonment the considerati on 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. Otherwi se the
very valuable right of appeal would be an exercise in futilit y
by efflux of time. When the appellate court finds th at due to
practical reasons such appeals cannot be disposed o f
expeditiously the appellate court must bestow special c oncern
in the matter of suspending the sentence so as to m ake the
appeal right, meaningful and effective. Of course, appe llate
courts can impose similar conditions when bail is granted.”
(Emphasis supplied)
28. In Sidhartha Vashisht alias Manu Sharma v. State (NCT
of Delhi) , reported in (2008) 5SCC 230 (popularly known as the Jessica
Lal murder case), this Court had the occasion to consid er the rival
submissions as well as various judicial pronouncements referred to by
both the sides over the prayer for bail.Thus, it has been held as follows:
“19. We are conscious and mindful that the main matter
(appeal) is admitted and is pending for final heari ng.
Observations on merits, one way or the other, therefore , are
likely to prejudice one or the other party to the app eal. We
are hence not entering into the correctness or othe rwise of
the evidence on record. It, however, cannot be over looked
that as on today, the applicant has been found guil ty and
convicted by a competent criminal court. Initial presump tion
of innocence in favour of the accused, therefore, is no more
available to the applicant.
xxx xxx xxx
OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &
ANR. ETC. [J. B. PARDIWALA, J.]
30. ….In the above cases, it has been observed that once a
person has been convicted, normally, an appellate court will
proceed on the basis that such person is guilty. It is no dou bt
true that even thereafter, it is open to the appellate court to
suspend the sentence in a given case by recording rea sons.
But it is well settled, as observed in Vijay Kumar [(2002) 9
SCC 364 : 2003 SCC (Cri) 1195 : JT 2002 Supp (1) SC 60]
that in considering the prayer for bail in a case invol ving a
serious offence like murder punishable under Sectio n 302
IPC, the Court should consider all the relevant fac tors like
the nature of accusation made against the accused, the manner
in which the crime is alleged to have been committe d, the
gravity of the offence, the desirability of releasing t he accused
on bail after he has been convicted for committing serious
offence of murder, etc. It has also been observed in s ome of
the cases that normal practice in such cases is not to susp end
the sentence and it is only in exceptional cases that the bene fit
of suspension of sentence can be granted.
31. In Hasmat [(2004) 6 SCC 175 : 2004 SCC (Cri) 1757 :
JT (2004) 6 SC 6] , this Court stated : (SCC p. 176, para 6 )
“6. Section 389 of the Code deals with suspension o f
execution of sentence pending the appeal and releas e of
the applicant on bail. There is a distinction between ba il
and suspension of sentence. One of the essential ingredien ts
of Section 389 is the requirement for the appellate court to
record reasons in writing for ordering suspension o f
execution of the sentence or order appealed. 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 orde r
directing suspension of sentence and grant of bail should
not be passed as a matter of routine.”
(emphasis supplied)
32. The mere fact that during the period of trial, the accused
was on bail and there was no misuse of liberty, does not per
se warrant suspension of execution of sentence and gr ant of
161
bail. What is really necessary is to consider whether reas ons
exist to suspend execution of the sentence and grant of bail.”
(Emphasis supplied)
29. In the case of Atul Tripathi v. State of Uttar Pradesh and
Others , reported in (2014) 9 SCC 177, whereunder apart from identifying
the differences of consideration of prayer for grant of ba il relating to
pre-conviction stage as well as post-conviction stage, it has been held in
para 14 which is as follows:
“14. Service of a copy of the appeal and application for bail
on the Public Prosecutor by the appellant will not satisfy the
requirement of the first proviso to Section 389(1) CrPC. T he
appellate court may even without hearing the Public
Prosecutor, decline to grant bail. However, in case the
appellate court is inclined to consider the release of the convict
on bail, the Public Prosecutor shall be granted an opportunity
to show cause in writing as to why the appellant be not
released on bail. Such a stringent provision is introduced only
to ensure that the court is apprised of all the relevant factors
so that the court may consider whether it is an app ropriate
case for release having regard to the manner in whi ch the
crime is committed, gravity of the offence, age, cr iminal
antecedents of the convict, impact on public confid ence in
the justice-delivery system, etc. …..”
30. In Kishori Lal v. Rupa and Others , reported in(2004)7 SCC
638, this Court has indicated the factors that require to be considered by
the courts while granting benefit under Section 389 of the CrPC in cases
involving serious offences like murder etc. Thus, it is useful to refer to
the observations made therein, which are as follows:
“4. 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 b ail and
suspension of sentence. One of the essential ingred ients of
Section 389 is the requirement for the appellate court to record
reasons in writing for ordering suspension of execu tion of
the sentence or order appealed against. If he is in confinem ent,
the said court can direct that he be released on bail or on his
own bond. The requirement of recording reasons in wr iting
OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &
ANR. ETC. [J. B. PARDIWALA, J.]
clearly indicates that there has to be careful consideration o f
the relevant aspects and the order directing suspen sion of
sentence and grant of bail should not be passed as a matt er
of routine.
5. The appellate court is duty-bound to objectively assess the
matter and to record reasons for the conclusion that the ca se
warrants suspension of execution of sentence and gr ant of
bail. In the instant case, the only factor which seems to have
weighed with the High Court for directing suspensio n of
sentence and grant of bail is the absence of allega tion of
misuse of liberty during the earlier period when the acc used-
respondents were on bail.
6. 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 durin g 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 du ring
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 Co urt 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.”
31. In Vijay Kumar v. Narendra and Others reported in (2002)
9 SCC 364 and Ramji Prasad v. Rattan Kumar Jaiswal and
Another reported in (2002)9 SCC 366, it was held by this Court that in
cases involving conviction under Section 302 of the IPC, it is only in
exceptional cases that the benefit of suspension of sentenc e can be
granted. In Vijay Kumar (supra), it was held that in considering the
prayer for bail in a case involving a serious offence like murder punishable
under Section 302 of the IPC, the court should consider the rele vant
factors like the nature of accusation made against the a ccused, 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.
32. The aforesaid view is reiterated by this Court in the case of
Vasant Tukaram Pawar v. State of Maharashtra reported in (2005)5
163
SCC 281 and Gomti v. Thakurdas and Others reported in (2007)11
SCC 160.
33. Bearing in mind the aforesaid principles of law, the endeavour
on the part of the Court, therefore, 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 convict stands for fair chances
of acquittal. If the answer to the above said question is to be in the
affirmative, as a necessary corollary, we shall hav e to say that, if
ultimately the convict appears to be entitled to have an 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 take very long
for decision and disposal. However, while undertaking the exe rcise to
ascertain whether the convict has fair chances of acquittal, what is to be
looked into is something palpable. To put it in other words, something
which is very apparent or gross on the face of the record, on the basis of
which, the Court can arrive at a prima facie satisfaction that the
conviction may not be sustainable. The Appellate Court should not
reappreciate the evidence at the stage of Section 389 of the CrPC and
try to pick up few lacunas or loopholes here or there in the c ase of the
prosecution. Such would not be a correct approach.
34. In the case on hand, what the High Court has done is something
impermissible. High Court has gone into the issues like political rivalry,
delay in lodging the FIR, some over-writings in the First Inform ation
Report etc. All these aspects, will have to be looked into at the time of
the final hearing of the appeals filed by the convicts. Upon cursory
scanning of the evidence on record, we are unable to agree wi th the
contentions coming from the learned Senior Counsel for the convicts
that, either there is absolutely no case against the conv icts or that the
evidence against them is so weak and feeble in nature, that, ultimately in
all probabilities the proceedings would terminate in their favour.For the
very same reason we are unable to accept the contention coming from
the convicts through their learned Senior Counsel that, it w ould be
meaningless, improper and unjust to keep them behind the ba rs for a
pretty long time till they are found not to be guilty of the charges.
35. In the overall view of the matter, we are convinced tha t the
High Court committed a serious error in suspending the substantive order
of sentence of the convicts and their release on bail pending the final
disposal of their criminal appeals.
OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &
ANR. ETC. [J. B. PARDIWALA, J.]
36. In fact, it was expected of the Stateas the prosecuting agency
to challenge the order passed by the High Court, but for some reason or
the other, the State thought fit not to do anything further. Ultimately, it is
the original first informant (brother of the deceased) who had to c ome
before this Court.
37. We make it clear and it goes without saying tha t any
observations touching the merits of the case are purely for the purpose
of deciding the present appeals and shall not be construed as an expression
of the final opinion in the pending criminal appeals before the High Court.
38. In the result, both the appeals succeed and are hereby allowed.
39. The impugned order passed by the High Court is hereby s et
aside.
40. The convicts are ordered to surrender before the Trial Court
within a period of three days from today.
Ankit Gyan Appeals allowed.
(Assisted by : Aarsh Choudhary, LCRA)