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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR
ORDER
IN
S.B. CR. MISC. III SUSPENSION OF SENTENCE APPLICATION NO.466/2015
IN
S.B. CRIMINAL APPEAL No.737/2012
(Dinesh Chand
Vs.
State of Rajasthan)
Date of Order :
July 06, 2015
HON'BLE MR. JUSTICE ALOK SHARMA
Mr. Anil Kumar Sharma, for the applicant-appellant.
Mr. Rishiraj Singh Rathore, Public Prosecutor.
Mr. Mohar Pal Meena, for the complainant.
BY THE COURT
The accused-applicant has moved this third application under Section 389
Cr.P.C. for suspension of sentence qua the judgment of conviction dated 6-82012 in Sessions Case No.3/2010 passed by the Additional Session Judge Rajgarh,
District Alwar, whereby the accused-applicant has been convicted, apart from
others, for an offence under Section 397/34 IPC and has been sentenced to seven
years' rigorous imprisonment. First applications filed by the accused-applicant
for suspension of sentence was dismissed on 21-1-2013 with liberty to file afresh
and second application was dismissed as withdrawn on 18-12-2013. The present
application for suspension of sentence has now been filed on the ground that the
accused-applicant has already served sentence of about four years including
remission as against the sentence of seven years inflicted by the trial court. It has
been further submitted that the matter has been compromised between the
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applicant and the complainant.
This has been admitted by the counsel for the complainant.
The counsel for the accused-applicant has submitted that the accusedapplicant was sentenced to seven years' rigorous imprisonment out of which he
has already suffered about four years, including remission, in jail. It has been
submitted that the delay in hearing of the appeal is not attributable to the
applicant but appears to be occasioned by the heavy dockets of the Court. Counsel
submits that the appeal filed against the judgment of conviction has the potential
of being allowed and in the event of it being so allowed and the applicant
acquitted, there would be no recompense for the applicant for having suffered a
long incarceration. Counsel submits that even this possibility as a ground was
available in the first instance, yet the passage of over four years of actual
incarceration by itself adds substantial weight thereto and now furnishes a good
ground for suspension of sentence on this third application. It has been submitted
that willy nilly, a similar argument has prevailed in the case of Salim Javed vs.
State of Rajasthan [(2006) 9 SCC 602] wherein the Hon'ble Supreme Court in
respect of conviction for the offences under Sections 304-B and 498-A IPC
where the accused was visited with sentence of rigorous imprisonment of 7 years,
on his having served 3 years and 6 months of the sentence, was pleased to grant
the indulgence of suspension of sentence as the Hon'ble Court concluded that in
the facts obtaining, there appeared to be no chance of the appeal of the accused
being heard in the near future. Counsel submits that similar consideration ought
to prevail with this Court in the facts as obtaining. Counsel for the accusedapplicant pointed out that in the event the appeal were to be dismissed, the
accused-applicant would be available for suffering the remaining sentence.
Conversely, there would be no way to recompense the accused-applicant for his
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lost years of incarceration if the appeal were to be allowed.
Mr. Rishiraj Singh Rathore, Public Prosecutor appearing for the State has
submitted that the accused-applicant is a convict in respect of a serious offence
under Section 397/34 IPC. He submits that court's delay in disposal of the appeal
against the judgment of conviction by itself cannot entail the exercise of
discretion of this Court in favour of the accused-applicant for suspension of
sentence. Counsel submits that “default bail/ suspension of sentence” by the
failure of the court to address the appeal of the accused even within reasonable
time is not a right recognised in law.
Heard. Considered..
Albeit the applicant is an accused of the offence under Section 397/34 IPC
and has been sentenced to serve a period of seven years of rigorous
imprisonment, the fact remains that the accused-applicant has a right to appeal
which he has availed with the possibility of his acquittal which cannot be
altogether discounted. The accused-applicant has served about four years,
including remission, as against the sentence of seven years. The delay in the
disposal of the appeal does not appear attributable to the applicant nor has it been
so argued by the public prosecutor. The Hon'ble Supreme Court, in the case of
Salim Javed (supra) has taken a view that when the accused has already suffered
a substantial portion of a fixed term the sentence and yet the appeal cannot be
heard in the near future, to balance the equities for the accused-applicant,
indulgence of bail should be granted where the delay in the disposal of the appeal
cannot be attributable to the applicant.
Consequently, to balance the right of the accused-applicant as against the
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rights of the State as also the injured, I would be, in the facts of the case, inclined
to exercise the discretion of this Court in favour of the accused-applicant and
grant him the indulgence of suspension of sentence inflicted under the judgment
of conviction dated 6-8-2012 by the trial court. This will however be subject to
the condition of the accused-appellant keeping good behaviour and conduct.
Breach will entail recalling of this order on an appropriate application made.
Consequently, the third application for suspension of sentence is allowed.
It is ordered that the sentence of the accused-appellant Dinesh Chand s/o Rewad
Ram in Session Case No.3/2010 shall remain suspended, during the pendency of
the appeal, provided he furnishes a personal bond of Rs.20,000/- with two
sureties of the like amount to the satisfaction of the trial court. The accused
applicant shall appear before this Court on August 10, 2015 as also whenever
called upon thereafter to do so.
(ALOK SHARMA), J
arn/
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All corrections made in the order have been
incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.