Raju Chaudhary v. State Govt of NCT of Delhi

1. This is an application seeking interim suspension of sentence.

2. The appellant was convicted under Section 354/451 IPC read with Section 10 of POCSO Act in FIR No. 205/2016, registered at Police Station- Madhu Vihar, Delhi and sentenced to Rigorous Imprisonment for a period of 5 years.

3. It is submitted that the applicant is a married person, aged about 48 years having a family consisting of wife, two unmarried sons and one married daughter. It is submitted that on account of the long custody of the applicant, the family of the applicant is virtually at the stage of starvation as the applicant is the only earning member of the family. The two sons of the applicant are still studying and are unable to earn any money. 2022:DHC:2598

4. In Gavade Kisan Bapu v. Union of India, 2022 SCC OnLine Del 960, the petitioner filed an application for suspension of sentence before this court. He was convicted under Section 45 of National Security Guard Act, 1986, read with Section 10 of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to ‘POCSO Act’) and he was sentenced to undergo imprisonment for a term of 5 years and was also dismissed from service. The petitioner was the sole bread earning member in his family; he had two minor children, who were completely dependent on the petitioner for their survival; and they were in a pitiful and very bad condition, as there was no one to take care of them. This court observed in the case that: “15. The counsel for the applicant rightly pointed out that in the said case before Madras High Court, the conviction was under Section 5(1) read with Section 6 of POCSO Act, being a case of penetrative sexual assault on the victim by the petitioner. However, charges in the present case are not so grave. In the said case, 10 years rigorous imprisonment was awarded under Section 5(1) read with Section 6 of POCSO Act, apart from other punishments. Whereas, in the present case, the punishment of 5 years was awarded, out of which the present petitioner/applicant has already completed 4 years and 8 months of incarceration. I agree with this submission of the learned counsel for applicant.

16. Keeping in view the judgment of the Hon'ble Supreme Court in the matter of Mossa Koya KP v. State (NCT of Delhi) (Supra), where the petitioner had undergone 8 years imprisonment out of 10 years awarded sentence in a heinous crime under NDPS Act, and the appeal was unlikely to be heard early, the Court was pleased to grant the prayer of the application for suspending the sentence, I am inclined to consider the present application favourably.

17. Moreover, in Haji Mul v. State (NCT of Delhi), a coordinate bench of this court, considered the fact that the appellant was sentenced under Section 8 of POCSO Act to undergo rigorous imprisonment for 3 years with fine of Rs. 1,000/- and he had remained in custody for 1 year and 10 months and 11 days besides earning remission for 5 months and he was not a previous convict, so, he was granted suspension of sentence till disposal of the appeal. Similarly, in the matter of Deepu v. State, the sentence awarded was rigorous imprisonment for 10 years with fine of Rs. 10,000/- for offence punishable under Section 377 IPC and in default of payment of fine, further SI for a period of 6 months and he has been sentenced to undergo RI for a period of 10 years with fine of Rs. 10,000/- for offence punishable under Section 6 of POCSO Act and in default of payment of fine, further SI for a period of six months. He was further sentenced to undergo RI for a period of 5 years with fine of Rs. 1,000/- for offence under Section 363 IPC and in default of payment of fine, further SI for a period of 1 month. He was also sentenced to undergo RI for a period of one year for offence punishable under Section 342 IPC. He was also sentenced to undergo RI for a period of 1 year for offence punishable under Section 506 (Part I) IPC. Out of this period, the applicant had undergone around 4 years and 11 months and earned remission of 9 months 23 days and he had completed more than half of the sentence awarded, so, keeping in view the conduct of the appellant in jail being satisfactory, the coordinate bench of this Court was pleased to suspend his sentence. Both these judgments are fully applicable to facts of this case.

18. In the present case, the appellant/applicant is not a previous convict and there is nothing on record to show that his behaviour in jail is not satisfactory; he had been also granted paroles 8 times between the period 19.03.2019 to 31.08.2021 and not even a single complaint is on record to show that during these periods of paroles, he has committed any other offence. It is also not in dispute that out of the total sentence of 5 years, he has remained in jail for 4 years and 8 months. The appellant stands dismissed from service, so there is no question of him visiting the NSG Campus or causing trauma to the victims, who may or may not residing in the same campus now. It is also not in dispute that looking at the workload and pendency of the old appeals in this court, the present appeal is not likely to be heard before July, 2022, when five years of sentence of the appellant/applicant shall be completed.

19. In view of the above facts, circumstances and the prevailing legal regime, I am inclined to allow suspension of the sentence of the present applicant/appellant on execution of personal bond in the sum of Rs. 25,000/- with one surety of the like amount to the satisfaction of the Jail Superintendent, Central Jail, Gurugram, Haryana.”

5. As per the Nominal Roll of the applicant, the applicant has already undergone 2 years 6 months and 28 days of his sentence. He has earned a remission of 5 months and 27 days and hence the unexpired portion of his sentence is 1 year 11 months and 5 days. The overall conduct of the applicant as per the Nominal Roll is satisfactory.

6. The Supreme court, as well, in Saudan Singh v. State of U.P., 2021 SCC OnLine SC 3259, observed that: “7. We may note that there may be even convicts in custody in cases other than life sentence cases and in those cases again the broad parameter of 50 per cent of the actual sentence undergone can be the basis for grant of bail.”

7. Since the applicant has already undergone more than 60 % of his sentence and the applicant is the only earning member of his family and his family is in a bad financial situation and the appeal will take time to come up for final disposal, till that time the family will be at its own mercy, I am of the view that this is a case where the sentence of the applicant needs to be suspended.

8. The sentence of the applicant is suspended during the pendency of the appeal subject to following conditions: (a) The applicant shall furnish a personal bond in the sum of Rs. 10,000/- (Rupees Ten Thousand Only) with 01 local surety in the like amount, to the satisfaction of the Registrar Appellate of the Delhi High Court; (b) The fine imposed upon the applicant by the trial Court in the order on sentence dated 30.01.2020 shall be deposited within one week of the release of the applicant.

(c) The applicant shall not leave the country and if the applicant has a passport, he shall surrender the same to the Registrar Appellate of the Delhi High Court;

(d) The applicant shall furnish to the IO/SHO concerned his cellphone number on which the applicant may be contacted at any time and shall ensure that the number is kept active and switched-on at all times; (e) The applicant shall not indulge in any act or omission that is unlawful or that would prejudice the proceedings in pending cases, if any. The application is disposed of accordingly.