Pawan & Anr v. State (CBI)

1. This application has been filed seeking regular suspension of sentence pending the adjudication of the appeal by this Court. The said appeal was filed by the appellant against order of conviction dated 03rd September, 2019 and order of sentence dated 04th September, 2019 passed by the Ld. ASJ-02, South-East District, Saket Courts arising out of RC-01(S)/2014/SC-M/ND dated 28th February, 2014 under Sections 304 Part-II read with Sections 34/342/201 IPC. Out of these two appellants Sunder has already been granted regular suspension of sentence by this Court vide order dated 16th December, 2021 while this application has been preferred by appellant Pawan on grounds of parity as well as the fact that he has already undergone incarceration for a period of about 4 years while having been sentenced for about 7 years SI.

2. As per the case of the prosecution on 29th January, 2014 at around 1:58 p.m., an incident of scuffle had taken place at the shop of coconvict Farman at his shop Rajasthan Paneer Bhandar, Lajpat Nagar, New Delhi where the victim named Nido Tania broke the glass counter of the shop consequent of which a fight took place allegedly between Nido and his friends on one side and Farman and his brothers/associates on the other. Since it was a simple fight between Farman and his associates and Nido and his friends, there was no noticeable injury to the alleged victim Nido and both of them refused to go to the hospital. At the police station, Nido compensated an amount of Rs.7,000/- to Farman for damaging his glass counter and the matter was compromised and the said PCR call was closed. However, on the next day on 30th January, 2014 at around 2:50 p.m., the victim Nido was not being able to get up and his friends shifted him to the hospital where he was declared dead. Accordingly, an FIR No.47/2014 was registered at PS Lajpat Nagar under Section 302 IPC and Section 3(10) POA Act, 1989.

3. As per the Ld. Senior Counsel for the appellant Pawan, the issue arose since Nido and friends had come to Lajpat Nagar to look for somebody but not finding the address had stopped at the shop run by Farman where apparently Farman made some racist remarks and provoked by the same, Nido broke the counter. Till this point, neither Pawan nor Sunder were present there. Nido left the place and met another group of friends who were also looking for the house they were originally searching for. In the meantime, Farman with a crowd of associates including Pawan and Sunder came to Nido and gave fist blows. However, at 4:15 p.m. they were all taken to the police station and the matter was compromised. At this point also Pawan or Sunder were there. Both Pawan and Sunder were arrested on 03rd February, 2014 when pursuant to the Nido having been declared dead on the next day. Just after the charge-sheet was filed in July, 2014, both got bail. While Farman had been convicted and sentenced for a period of 10 years, Pawan and Sunder had been sentenced for a period of 7 years.

4. The Ld. Senior Counsel for the appellant contends that without prejudice to the fact that Pawan and Sunder, even as per the case of the prosecution, had a minor role to play in the situation and in the facts and circumstances had not been accused of brandishing of weapon and their role was different from what Farman was accused for, appellant Pawan may be granted regular suspension of sentence since his brother Sunder who had been accused of exactly the same role had been granted suspension of sentence by this Court on 16th December, 2021. In support of her submissions, the Ld. Senior Counsel for the appellant relied upon the decisions of the Hon’ble Supreme Court in Satender Kumar Antil v. CBI, (2022) 10 SCC 51 and Saudan Singh v. State of Uttar Pradesh, (2021) SCC OnLine SC 3259.

5. Learned counsel for the CBI refuted these contentions and stated that merely because the sentence had of about more than 50% had been served, the appellant had no mechanical right to be released on regular suspension of sentence.

6. Having appreciated the contentions of the parties and perused the records placed before the Court, this Court is of the considered view that the appellant Pawan would be entitled for being released on regular suspension of sentence pending the final adjudication of the appeal by this Court, which is expected to take some time. Considering the fact that appellant Pawan was not accused of brandishing any weapon or had given any fatal blow and had a role similar to that of appellant Sunder who has already been enlarged on bail, as well as the fact that the unexpired portion of the sentence of appellant Pawan is about 3 years 3 months and there is no immediate possibility of the appeal being adjudicated by this Court, it would be prudent to suspend the sentence pending the hearing of the appeal.

7. Further, the Nominal Roll shows that he has no other involvements or convictions and his conduct in jail has been satisfactory. He was on interim bail for 45 days with effect from 17th July, 2020 initially as granted by this Court which was extended from time to time till 27th March, 2021 and he surrendered on time and did not misuse the liberty granted.

8. In view of the directions of the Hon’ble Supreme Court in Sonadhar v. The State of Chhattisgarh, SLP (Crl.) 529/2021 vide order dated 6th October, 2021, as well as Saudan Singh v. State of Uttar Pradesh, 2021 SCC OnLine SC 3259 (where the Hon’ble Supreme Court has stated that in cases other than life sentence cases the broad parameter of 50 per cent of the actual sentence undergone can be the basis for grant of bail) this Court deems it fit to suspend the sentence of the appellant.

9. It is, therefore, directed that the sentence of the appellant be suspended pending the hearing of the appeal, on furnishing a personal bond in the sum of ₹25,000/- with one surety bond of the like amount, subject to the satisfaction of the learned Trial Court/ CMM/ Duty Magistrate, further subject to the following conditions: i. Appellant will not leave the country without prior permission of the Court. ii. Appellant shall provide permanent address to the Ld. Trial Court. The appellant shall intimate the Court by way of an affidavit and to the IO regarding any change in residential address. iii. Appellant shall appear before the Court as and when the matter is taken up for hearing. iv. Appellant shall provide all mobile numbers to the IO concerned which shall be kept in working condition at all times and shall not switch off or change the mobile number without prior intimation to the IO concerned. The mobile location be kept on at all times. v. Appellant shall not indulge in any criminal activity and shall not communicate with or come in contact with the complainant/victim or any member of the complainant/victim’s family or tamper with the evidence of the case. Needless to state, but any observation touching the merits of the case is purely for the purposes of deciding the question of suspension of sentence and shall not be construed as an expression on merits of the matter.

10. Copy of the order be sent to the Jail Superintendent for information and necessary compliance.

11. Accordingly, the application is disposed of. Pending applications (if any) are disposed of as infructuous.

12. Order be uploaded on the website of this Court.

JUDGE JANUARY 23, 2023