Amit Garg v. State of NCT of Delhi

1. All these applications for suspension of sentence have been moved in case FIR No. 81/2013, lodged at PS Basant Vihar, Dehradun registered under Sections 385/389/504/109/120B IPC and Section 67A of the Information and Technology Act. The said case was instituted on 28.01.2014, which was transferred to Delhi on 17.03.2020 and the final judgment in the said case was passed on 04.12.2021. 1.[1] By the said judgment, the present applicants being Aaina Roy, Neeraj Chauhan, Amit Garg and Shiny Mac Khan were convicted for the offences punishable U/s 389/385/504 read with Section 120B IPC and under Section 67A of IT Act r/w Section 120B IPC. Two of the accused namely Sanjay Neutral Citation Number is 2022/DHC/004683 Crl.Appeal 417/2021 & conn. Banerjee and Suman Singh Waldia were acquitted. The sentences of the applicants were as under:- “I) Aaina Roy i) Under offence u/s IPC read with section 120B IPC the convict is sentenced to RI for a period of two years and fine of a sum Rs.5000/-. In default of payment of fine, the convict shall undergo SI for two months. ii) Under offence u/s 389 read with section 120B IPC the convict is sentenced to RI for a period of seven years and f fine of Rs.50,000/- out of which 45,000/- will be paid as compensation to the victim and Rs.5000/- shall be paid to the State as litigation expenses. In default of payment of fine the convict shall undergo SI for one year. iii) Under offence u/s 385 IPC read with section 120B IPC the convict is sentenced to RI for a period of three years and six months and a fine of Rs.50,000/- out of which 45,000/- will be paid as compensation to the victim. In default of payment of fine the convict shall undergo SI for six months. iv) Under offence u/s 67-A IT Act read with section 120B IPC the convict is sentenced to RI for a period of three year and six months a fine of Rs.50,000/- out of which 45,000/- will be paid as compensation to the victim. In default of payment of fine the convict shall undergo SI for six months. II) Neeraj Chauhan i) Under offence u/s 504 IPC read with Section 120B IPC the convict is sentenced to RI for a period of two years and fine of a sum of Rs.5000/-. In default of payment of fine, the convict shall undergo SI for two months. ii) Under offence u/s 67-A IT Act read with section 120B IPC the convict is sentenced to RI for a period of seven years and a fine of Rs.50,000/- out of which 45,000/will be paid as compensation to the victim and Rs.5000/shall be paid to the State as litigation expenses. In default of payment of fine the convict shall undergo SI for one year. iii) Under offence u/s 385 IPC read with 120B IPC the convict sentenced to RI for a period of two years with a fine of Rs.5000/-. In default of payment of fine the convict shall undergo SI for two months. iv) Under offence u/s 67-IT Act read with section 120B IPC the convict is sentenced to RI for a period of three years and six months and a fine of Rs.50,000/- out of which 45,000/- will be paid as compensation to the victim. In default of payment of fine convict shall undergo SI for six months. III Saini Mac Khan i) Under offence u/s 504 IPC read with Section 120B IPC the convict is sentenced to RI for a period of two years and fine of a sum of Rs.5000/-. In default of payment of fine, the convict shall undergo SI for two moths. ii) Under offence u/s 389 IPC read with Section 120B IPC the convict is sentenced to RI for a period of seven years and a fine of Rs.50,000/- out of which 45,000/- will be paid as compensation to the victim and Rs.5000/- shall be paid to the State as litigation expenses. In default of payment of fine the convict shall undergo SI for one year. iii) under offence u/s 385 IPC read with Section 120B IPC the convict is sentenced to RI for a period of two years with a fine of Rs.5000/-. In default of payment of fine the convict shall undergo SI for one year. 120B IPC the convict is sentenced to RI for a period of three years and six months and a fine of Rs.50,000/- out of which 45,000/- will be paid as compensation to the victim. In default of payment of fine the convict shall undergo SI for six months. IV) Amit Garg i) Under offence u/s 504 IPC read with Section 120B IPC the convict is sentenced to RI for a period of two years and fine of a sum of Rs.5000/-. In default of payment of fine, the convict shall undergo SI for two moths. ii) Under offence u/s 389 IPC read with Section 120B IPC the convict is sentenced to RI for a period of seven years and a fine of Rs.50,000/- out of which 45,000/- will be paid as compensation to the victim and Rs.5000/- shall be paid to the State as litigation expenses. In default of payment of fine the convict shall undergo SI for one year. iii) under offence u/s 385 IPC read with Section 120B IPC the convict is sentenced to RI for a period of two years with a fine of Rs.5000/-. In default of payment of fine the convict shall undergo SI for one year. 120B IPC the convict is sentenced to RI for a period of three years and six months and a fine of Rs.50,000/- out of which 45,000/- will be paid as compensation to the victim. In default of payment of fine the convict shall undergo SI for six months”.

2. Notices were issued on the above four applications. Initially N.C.T of Delhi was defending these matters; however, later on it transpired that it has to be the State of Uttarakhand, which has to defend the present cases; hence, notices were issued to the State of Uttarakhand and Mr. Piyush Hans, Advocate appeared on behalf of the State of Uttarakhand. Learned Advocate responded to the applications for suspension of sentence by filing a short synopsis.

3. I have heard learned counsel appearing for the parties.

3.1. In Crl.M.(Bail) 265/2022 in Crl.Appeal No. 93/2022 tiled as ‘Aaina Roy vs. State (NCT of Delhi)’ it has been argued that out of total awarded sentence of RI for 7 years, she has already undergone about 2 years and 11 months of custody. She is stated to be the complainant in case FIR NO. 358/2013 under Sections 376(c)(b)/506/109 IPC on 22.11.2013 but the accused, who is complainant in the present case, was acquitted. The appellant/applicant is stated to be a woman and she has prayed for suspension of sentence and grant of bail, since the appeal is not likely to be heard soon. 3.[2] In grounds of suspension of sentence, it is submitted that she is aged about 38 years; she has clean antecedents; she was on regular bail since the year 2016 till her conviction on 04.12.2021 and she has never misused the liberty granted to her. It has been further submitted that offence alleged to have been committed by her has not been proved; rather it was the appellant, who was sexually exploited by the complainant. She has lodged FIR NO. 358/2013 under Section 376 IPC at PS Kotwali and the present complainant was arrested and charge-sheeted under Section 376 (B)/ (C)/109/506 IPC. The challenge to acquittal of the present complainant in the case registered at the instance of the appellant is pending. Under these circumstances, the suspension of sentence has been prayed. 3.[3] In Crl.M.B. 299/2022 in Crl. Appeal No. 106/2022 titled ‘Neeraj Chauhan vs. State’ it has been submitted that there is no direct evidence against the appellant of having committed the offences, for which he is convicted. In grounds seeking suspension of sentence, it has been submitted that the appellant has been convicted based on perverse appreciation of facts; the appellant does not have any criminal antecedents, the appellant has a wife and 2 minor children and an aged mother to support; the wife of the appellant is bed-ridden; the appellant has already undergone about 2 years and 6 months of incarceration; even being enlarged on bail during trial, the appellant/applicant has diligently attended the Trial Court proceedings; the appellant has not jumped bail or influenced any witness, when he was on bail during trial; the appellant has deep roots in the society; the conviction of the appellant is based on conjectures and surmises and the appellant undertook to abide by all the conditions to be laid down by the Hon’ble Court. 3.[4] During arguments, Mr. K.K. Manan, learned senior counsel appearing for the applicant, has argued that the present applicant has been awarded punishment of less than 10 years Rigorous Imprisonment; the applicant has maintained good conduct throughout; which is a relevant factor during the period of interim suspension; he has never misused the liberty; the cases are piling up in High Court and there is no likelihood of regular hearing of the appeal in the near future. 3.[5] In Crl.M (Bail) 1598/2021 in Crl. Appeal No. 417/2021 titled as ‘Amit Garg vs. State (NCT of Delhi)’ it has been submitted in application of suspension of sentence that conviction of the appellant is based on circumstantial evidence of him being present with the co-accused Neeraj Chauhan in a hotel on 20.10.2013 and being in contact with him and other co-accused Aaina Roy and providing office space to the TV channel named ‘Channel one’. In the grounds, on which suspension of sentence has been sought, it is mentioned that the appellant has been convicted based on perverse appreciation of facts and law; the appellant has no criminal antecedents; he has already spent about 14 months in custody in Uttarakhand; even when the applicant was on bail, he has diligently attended the Trial Court proceedings and he did not jump the bail; the appellant has deep roots in the society and has two young children to look after and the judgment against him is based on conjectures and surmises; the appellant undertook to abide by all the conditions to be put up while allowing his application for suspension of sentence. 3.[6] During arguments, it has been argued on behalf of this applicant that out of the total punishment of RI for 7 years, he has already undergone 1 year 11 months incarceration; he has not been named in the FIR; there is no recovery made from him, his only fault is that he has given the premises on rent to co-accused Neeraj Chauhan, who tried to get the property /premises for use of co-accused Aaina Roy; his role is stated to be there only in alleged conspiracy, the conviction is based only on the presumption that since the petitioner was communicating with the main accused, so, he was also involved in the present case. 3.[7] In Crl.M(Bail) 278/2022 in Crl.Appeal No. 96/2022 titled as ‘Shiny Mac Khan vs. State’ in the application for suspension of sentence, it has been mentioned that the appellant is innocent person and he has clear antecedents; he has undergone sentence for more than 2 years and 10 days; no purpose would be served by keeping the appellant behind bars and he has a good case on merits and has every hope of success and he has undertaken to abide by the conditions to be imposed by this Court. 3.[8] During arguments, it has been submitted that out of total punishment of RI years for 7 years, he has already undergone 2 years, 6 months of incarceration; he has not been named in the FIR; the complainant had never met the applicant; no role has been assigned by the complainant to the applicant; there is no transaction of the applicant with the complainant; he is not involved with any of the accused except Aaina Roy, who is an associate; he was only a facilitator in the matter between the co-accused Aaina Roy and complainant, and his role surfaced only after 15 days from the date of the incident; although all the allegations are of a sting operation but certificate under Section 65B of the Indian Evidence Act is not there. He had only made some phone calls to Aaina Roy and to an associate professor and he is not a part of any extortion racket.

4 On behalf of the State of Uttarakhand, it has been submitted that appellant/applicants are not entitled to be released on bail after suspension of sentence only on the ground that the appeals will take some time to be heard and there is no misuse of the liberty by the accused during trial when they were on bail and in this regard reliance has been placed on a judgment of Hon’ble Supreme Court titled as Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi) (2008) 5 SCC 230. 4.[1] It has been further submitted that the applicants have to make out a case of patent infirmity to succeed in their applications for suspension of sentence and reliance in this regard has been placed upon judgment of the Hon’ble Supreme Court in the matter of Preet Pal Singh vs. State of Uttar Pradesh & Anr.’ (2020) Vol. 8, SCC 645. It has been further submitted that applicants have not completed half of the sentence awarded to them and moreover, they have not deposited the fine imposed on them; the judgment in question cannot be discussed threadbare at this stage and apparently there is no infirmity or illegality pointed out by the present applicants in the said judgment, which entitles them to grant of suspension of sentence and they being released on bail.

5. After hearing both the sides it is noticed that the sentences awarded to the applicants is 7 years RI alongwith fine, apart from other minor sentences and they have not completed half of the said sentences. The appeals were filed by them, on the following dates: “(i) Crl.App. 417/2021 Amit Garg vs. State on 22.12.2021;

(ii) Crl.App. 106/2022 Neeraj Chauhan vs. State on 16.03.2022;

(iii) Crl. App. 93/2022 Aaina Roy vs. State on 04.03.2022; and

(iv) Crl.Appl. 96/2022 Shiny Mac Khan vs. State on 08.03.2022.”

5.[1] Not even a period of one year has passed since the appeals have been filed, so it cannot be said that the appeals are pending for a long time before this Court and this is not a ground for grant of suspension of sentences to the convicted persons. 5.[2] The applicants have placed reliance on the judgment of the Hon’ble Supreme Court in the matter of Bhagwan Rama Shinde Gosai & Ors. vs. State of Gujarat (1999) 4 SCC 421, where it was held that suspension of sentences is to be considered by the Court liberally where the sentence is of limited duration and endeavour should be made to dispose of the appeal on merits. 5.[3] On the other hand, the respondents have placed reliance in Sidhartha Vs. State (supra), wherein it was held that while considering the application for suspension of sentence, seriousness of the offence; nature of accusation; the gravity of the offence and the normal practice is not to suspend the sentence. The fact that accused was on bail during trial and he has not misused the liberty does not per-se warrant suspension of sentence. Moreover, where the appeal is likely to be heard in measurable distance of time, the suspension of sentence is not to be allowed. 5.[4] As noted above, in the present case, the appeals were filed during the period from December, 2021 to March, 2022 and not even one year has passed from the dates when these appeals were filed. The applicants have been convicted for a serious offence and they had conspired with each other to commit the said crime, so it is not a fit case for grant of suspension of sentence at this stage. 5.[5] In Preet pal Singh vs. State (supra), it was held that the discretion for grant of suspension of sentence is to be exercised judicially and not in a casual manner. It has been also observed that there is a difference between grant of bail under Section 439 Cr.P.C. in case of pre-trial arrest and suspension of sentence under Section 389 Cr.P.C. and grant of bail post conviction. In the trial, there may be presumption of innocence, however, in case of post-conviction bail, there is finding of guilt and question of presumption of innocence does not arise. 5.[6] In Kanaka Rekha Naik vs. Manoj Kumar Pradhan & Anr. (2011) 4 SCC 596, it was observed that the Appellate Court has taken into consideration the serious nature of crime and findings recorded by the learned Trial Court and whether the applicant was involved in more than 1 case, for deciding as to whether it was a fit case for suspension of sentence and power under Section 389 Cr.P.C. is not to be exercised as a matter of course. It is also noted that it is not necessary to recapitulate the findings recorded by the learned Trial Court and it is only to be noted that there is a finding that the applicant was involved in commission of the offence and same is under challenge in the criminal appeal. 5.[7] Keeping in view the above judgments, this Court cannot comment on the merits of the case; the family circumstances of the applicants cannot be the sole only ground for suspension of sentence, especially where the appeals have been filed only recently and the applicants are yet to complete even half of the sentence awarded to them.

6. Keeping the above facts in view, I am not inclined to suspend the sentence awarded to the present four applicants at this stage.

7. However, it is made clear that the dismissal of their applications for suspension of sentence at this stage will not come in their way, if and when they approach this court for suspension of sentence again at an appropriate stage.