Full Text
# HIGH COURT OF DELHI
Order reserved on: 15.07.2022
Order delivered on: 03.08.2022
AADIL @ NAUSERWA ..... Appellant
Through: Mr.Harsh Prabhakar, Advocate (DHCLSC).
Through: Ms.Rajni Gupta, APP for State with PSI Abhishek.
ANOOP KUMAR MENDIRATTA, J.
JUDGMENT
1. An application has been filed on behalf of the appellant under Section 389 Cr.P.C. for suspension of sentence. The appellant has been convicted vide judgment dated 15.05.2019/17.05.2019 in FIR No.289/16 registered at PS: Khajuri Khas, Delhi under Section 377/506/34 IPC and Section 6 of POCSO Act and acquitted of charge under Section 363/34 IPC. The appellant has been further sentenced under Section 506 IPC to undergo RI for one year and fine of Rs.5,000/- (in default of payment of fine, to undergo SI for 15 days); for the offence under section 6 POCSO Act to RI for a period of 10 years and fine of Rs.20,000/- (in default of payment of fine, to undergo SI for a period of 03 months).
2. As per the Nominal Roll upto 05.07.2022, the petitioner has undergone sentence for a period of 03 years 05 months and 03 days and earned remission for 09 months and 10 days. The total unexpired portion of sentence is 05 years, 09 months and 17 days.
3. Learned counsel for the petitioner prays for suspension of sentence till disposal of appeal on the ground that petitioner has undergone sentence for a period of more than 04 years and 02 months including remission, apart from challenging the case on merits. It is also submitted that disposal of appeal is likely to take some time. Reliance is further placed upon Bhagwan Rama Shinde Gosai and Others v. State of Gujarat, (1999) 4 SCC 421, Kashmira Singh v. The State of Punjab, (1977) 4 SCC 291 and Angana and Another v. State of Rajasthan, (2009) 3 SCC 767.
4. On the other hand, application is vehemently opposed by learned APP for the State and it is submitted that finding of conviction is strongly supported by evidence on record. It is also urged that appellant has not even completed half of the sentence to extend any benefit in terms of observations of the Hon’ble Supreme Court in S.L.P. (CRL.) No.529/2021 titled as Sonadhar v. The State of Chhattisgarh. Reliance is further placed upon Preet Pal Singh v. The State of Uttar Pradesh & Anr., Crl. Appeal No.520 of 2020 arising out of SLP (Crl) No.2102 of 2019 decided on 14.08.2020; Mohd. Rafiq v. State NCT decided on 06.09.2007 by Hon’ble Mr. Justice S.N. Dhingra; Ravi Kumar @ Sonu v. State, Crl. Appeal No.444/2010; alongwith Ashwani Dubey @ Chhanwa v. State, Crl. Appeal No.595/2010 both decided on 05.10.2010 by the High Court of Delhi and Gomti vs. Thakurdas & Ors., Crl. Appeal No.555 of 2007 arising out of SLP (Crl.) No.2062 of 2006 decided by Hon’ble Supreme Court on 13.04.2007.
5. Briefly, the authorities relied upon by the learned counsel for the petitioner may be referred.
(i) In Bhagwan Rama Shinde Gosai and Others v. State of Gujarat
(supra), it was observed that “when a convicted person is sentenced to a fixed period 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 exceptional circumstances. Of course, if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is „life imprisonment‟ the consideration 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. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence so as to make the appeal right, meaningful and effective. Of course, appellate courts can impose similar conditions when bail is granted.” Considering the fact that in the aforesaid case, the court was not inclined to hear the appeal expeditiously, the sentence was suspended in respect of conviction for the offences under Section 392 r/w 397 IPC.
(ii) In Kashmira Singh v. The State of Punjab (supra), the High Court set aside the acquittal under Section 302 IPC by learned Trial Court and sentenced the appellant to life imprisonment. In the SLP, after considering the fact that the Hon’ble Supreme Court had already granted special leave to the appellant against his conviction, it was observed that same shows that he has prima facie good case to consider and in the circumstances it was highly unjust to detain him in jail any longer during the hearing of the appeal. It was also observed that in fact it would be a travesty of justice to keep a person in jail for a period of five or six years for an offence found to have not been committed by him.
(iii) In Angana and Another v. State of Rajasthan (supra) it was held that the High Court has to consider each case on the basis of nature of the offence, manner in which the offence has taken place and whether the bail granted earlier had been misused. It was also held that the High Court has ample power of discretion to suspend the sentence but that discretion has to be exercised judicially depending upon the facts and circumstances of each case. However, no straitjacket formula can be applied in exercising the discretion. The facts and circumstances of each case will govern the exercise of judicial discretion while considering the application filed by the convict. The appellant in said case was convicted under Section 326 r/w 34 IPC. Taking into consideration that the appellants were on bail during the pendency of the case before the Sessions Court which had acquitted most of the accused persons after trial except the appellants who were convicted under section 326 IPC r/w 34 IPC and sentenced to 04 years R.I., appellants were directed to be released on bail. Reference in aforesaid judgment was also made to the judgments passed in Takht Singh v. State of M.P., (2001) 10 SCC 463; 2003 SCC (Cri) 800; Kashmira Singh v. State of Punjab, (1977) 4 SCC 291: 1977 SCC (Cri) 559; Babu Singh v. State of U.P., (1978) SCC (Cri) 133; Emperor v. H.L. Hutchison, AIR 1931 All 356; Bhagwan Rama Shinde Gosai v. State of Gujrat, (1999) 4 SCC 421: 1999 SCC (Cri) 553; Suresh Kumar v. State (NCT of Delhi), (2001) 10 SCC 338: 2002 SCC (Cri) 1043. Further, the observations made by the Hon’ble Supreme Court in para 21 & 22 of the judgment are apt to be noticed:
6. The judgments relied upon by learned APP for the State may also be briefly noticed:-
(i) In Gomti v. Thakurdas & Ors. (supra), the Hon’ble Supreme Court set aside the order directing suspension of sentence and grant of bail by the High Court for offences under Section 302 r/w 149 IPC and other offences under Section 148, 201 and Section 3(2) and 5 of the SCST Act, after referring to the principles to be considered for suspension of sentence. Reference was also made to Vijay Kumar V. Narendra and Ors. 2002 (9) SCC 364; Kishorilal V. Rupa and others 2004 (7) SCC 638; Vasant Tukaram Pawar V. State of Maharashtra 2005 (5) SCC 281
(ii) In Ravi Kumar @ Sonu v. State and Ashwani Dubey @ Chhanwa v.
State (supra), reference was made to observations in Kishori Lal v. Rupa (2004) 7 SCC 638 and the prayer for suspension of sentence in a case of robbery and murder was declined.
(iii) In Preet Pal Singh v. The State of Uttar Pradesh (supra), the order passed by the High Court suspending sentence and granting bail during pendency of appeal for offences under Section 304B, 498A, 406 IPC and Section 3 & 4 of Dowry Prohibition Act was set aside by the Hon’ble Supreme Court after considering the evidence on record. The observations referred in para 27, 32, 36 and 39 are apt to be noticed:-
(iv) In Mohd. Rafiq v. State NCT, Crl. Appeal No. 390/2004, date of decision 06.09.2007 the prayer of the appellant for suspension of sentence in a case under Section 376 read with Section 506 IPC was declined by the High Court.
7. The principles enunciated both, in the judgments relied by the counsel for the appellant as well as Learned APP for the State stand well settled and crystallized. Section 389 Cr.P.C. provides as under:-
8. In view of the mandate of Section 389 Cr.P.C., the principles are different in the case of sentences not exceeding three years as well as in case of bailable offences. Also the cases where the person is convicted of offences punishable with death or imprisonment for life or imprisonment for a term not less than ten years, an opportunity is to be given to the public prosecutor under proviso to Section 389(1) Cr.P.C. The court is obliged to consider whether any cogent grounds have been disclosed and whether there is likelihood of delay in disposal of appeal. Even though a detailed examination of the merits of the case may not be required for suspension of sentence but the exercise of jurisdiction is to be made in judicious manner (based on well settled principles) and for the reasons to be recorded in writing. The difference between grant of bail under Section 439 Cr.P.C. during trial as well as (suspension of sentence) Section 389 Cr.P.C. after conviction is well distinguished and presumption of innocence which is provided at the time of trial does not continue after the conviction of accused. In view of above, there need to be compelling reasons for suspension of sentence and grant of bail under section 389 Cr.P.C. and to ascertain if there is patent infirmity in order of conviction or other cogent reasons exist for release on bail. In nutshell, the reasons have to be germane to justify the grounds of bail. The mere fact that during the trial accused were granted bail and there was no allegation of misuse of liberty, is not of much significance, as the accused have been found guilty on conviction. The mere fact that during trial liberty of bail was not misused may not per se warrant suspension of sentence and grant of bail. However if the convict has undergone more than half of the sentence in case of fixed term sentence and disposal of appeal is likely to take some time, the matter needs to seen in light of observations made by the Hon’ble Supreme Court in S.L.P. (CRL.) No.529/2021 titled as Sonadhar v. The State of Chhattisgarh:- “....... b) The Delhi High Court Legal Services Committee would take up cases for those convicts who have undergone more than half the sentence in case of fixed term sentences and examine the flexibility of filing a bail application before the High Court......”
9. Reverting back to the facts of the present case, the appellant was charged under Section 363/377/506/34 IPC and Section 6 POCSO Act and stands convicted under Sections 377/506/34 IPC and Section 6 of POCSO Act. The victim, aged about 14 years at the time of the incident was sexually assaulted by the appellant as well as his accomplices. The same stands established by DNA result apart from the testimony of victim which withstood the test of cross-examination. Having considered the testimony of the victim, grave nature of allegations relating to gang sodomy of a child, the incriminating evidence on record with reference to offence under Section 6 of POCSO Act and the fact that appellant has not even undergone half of the sentence, I am of the considered opinion that the appellant does not deserve the discretion of suspension of sentence, at this stage. The application is accordingly dismissed. The observations herein have been made prima facie only for purpose of consideration of application for suspension of sentence. Further, the appeal is directed to be listed for hearing in fourth week commencing January 2023. A copy of this order be forwarded to the appellant through Jail Superintendent.
JUDGE AUGUST 03, 2022