ANGANA & ANR.versusSTATE OF RAJASTHAN

                              [2009] 1 S.C.R. 941


."-'f                          ANGANA & ANR.                            A
                                       v.
                           STATE OF RAJASTHAN
                      (Criminal Appeal No. 221 of 2009)
                             FEBRAURY 6, 2009
                                                                        B
               [TARUN CHATTERJEE AND H.L. DATTU, JJ.]

              Code of Criminal Procedure, 1973:

               s.389- Suspension of sentence and grant of bail pending  c
          appeal - Conviction u/s. 326134 /PC - High Court while
          admitting appeal, rejecting prayer for suspension of sentence
          and bail pending appeal - Held: When an appeal is preferred
          against conviction in High Court, Court has ample power and
          discretion to suspend the sentence, but that discretion has to D
   -+     be exercised judiciously depending on the facts and
          circumstances of each case - In the instant case, the convicts
          were on bail pending trial - Most of their co-accused were
          acquitted - When the convicts were on bail, they did not
          commit any offence - Nor were they responsible for
                                                                         E
          prolonging the proceedings - High Court could have
          suspended the sentence and granted them bail - In exercise
          of power under Article 136 of the Constitution, the sentence
          is suspended and convicts are directed to be released on bail
   ;...   - Constitution of India, 1950 - Article 136 - Bail.
                                                                        F
              Takhat Singh and Others vs. State of M.P., (2001) 10
          SCC 463; Bhagwan Rama Shinde Gosai vs. State of Gujarat
          (1999) 4 SCC 421 and Suresh Kumar and Others vs. State
          (NCT of Delhi) (2001) 10 sec 338, relied on.
                                                                        G
               Kashmira Singh vs. State of Punjab (1997) 4 SCC 291;
   ~
          Babu Singh vs. State of UP., 1978 (1) SCC 579; Kishori Lal
          vs. Rupa and Others, (2004) 7 SCC 638, Vasant Tukaram
          Pawar vs. State of Maharashtra, (2005) 5 SCC 281; Gomti
                                      941                               H
    942         SUPREME COURT REPORTS             [2009] 1 S.C.R.


A   VS.Thakurdas and Others, (2007) 11 sec 160 and Sidharth           )"'-<=
    Vashisht@ Manu Sharma vs. The State (N.C. T. of Delhi)
    (2008) 5 sec 230, referred to.

          Emperor vs. H.L. Hutchinson AIR 1931 All 356, referred
    to.
B
                         Case Law Reference:

          (2001) 1o sec 463         relied on           para 11

          (1997) 4 sec 291          referred to         para 13
c
          1978 (1) sec 579          referred to         para 14

          AIR 1931 All 356          referred to         para 15

          (1999) 4 sec 421          relied on           para 16
D
          (2001) 1o sec 338         relied on           para 17

          (2004) 1 sec 638          referred to         para 20

          (2005) 5 sec 281          referred to         para 20

E         (2007) 11 sec 160         referred to         para 20

          (2oos) 5 sec 230          referred to         para 20

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 221 of 2009.                                                ...l
F
        From the interim Order dated 22.8.2008 of the High Court
    of Judicature for Rajasthan, Jaipur Bench, Jaipur in S.B.
    Criminal Misc. Bail (SOS) Application No. 781 of 2008 in
    S.B.Criminal Appeal No. 758 of 2008.
G        H.D. Thanvi, Archana Tiwari, A.V. Kotemath and Pratibha
    Jain for the Appellants.
                                                                     i
        Dr. Manish Singhvi, A.A.G. and Milind Kumar for the
    Respondent.
H
      ANGANA & ANR. v. STATE OF RAJASTHAN                   943


     The following Order of the Court was delivered:              A

                            ORDER

     (1) Leave granted.

     (2) This appeal is directed against the order passed by      B
the High Court of Judicature for Rajasthan, Bench at Jaipur, in
S.B. Cr. Misc. (SOS) Application No. 781/2008 in Criminal
Appeal No. 758/2008 dated 22.8.2008. By the impugned order,
the High Court while admitting the appeal has rejected the
application seeking bail/suspension of sentence filed by the      c
appellant.

       (3) Facts in brief are as follows; Complainant PW/2,
 namely, Bhobal submitted a written report at police station on
 6.3.1993, stating that on 6.3.1993, complainant and other
 members were sleeping in the house when accused/appellants D
 and others who are acquitted, with the intention of stealing/
 looting and killing, came inside the house. One Shanti heard
some noise and started shouting. Listening to her cries other
 members came out and saw that accused/appellants and other
were having kattas. Then accused/appellants and other started E
assaulting them by gun fire and pelting stones which in turn
caused serious injuries to complainant and other. Investigation
was conducted and a case was registered under sections 147,
148, 149, 323, 452 and 307 of the IPC against fourteen
persons on 6.3.1997 and was committed to the Additional F
District & Session Judge, Deeg. Accused/appellants and others
have stated that in this case first information report of the cross-
case of this matter was lodged with the same police station
prior to the present incident, in which death of one Samunder
Singh has been caused. Also they argued that the first G
information report has been lodged by the complainant falsely
to be saved of that cross-case. Trial court after hearing the
parties convicted Angna and Chouthi for the charge under
section 326 read with section 34 of IPC and acquitted them
from all other charges and all the other accused persons were H
    944         SUPREME COURT REPORTS               (2009] 1 S.C.R.


A   acquitted vide judgment dated 24.7.2008. Accused were              ¥ ~
    awarded sentence of four years rigorous imprisonment with a
    fine of Rs. 2000/-.

       (4) Both the accused persons being aggrieved by the said
B judgment have filed criminal appeal before the Hon'ble High
  Court and also have filed criminal application under section 389
  Cr.P.C. for suspension of execution of sentence and for
  releasing the accused/appellants on bail during pendency of the      1-
  appeal.

C      (5) The learned counsel for the accused/appellants
  contended before the High Court that in the personal defence,
  the accused fired the gun shot on the complainant and the
  complainant also received injuries. Further, the injuries received
  by the complainant are not grievous in nature. It was stated that
D from the side of the accused also, one person Samundar died
  on the spot due to injuries inflicted by the complainant side.
  Because it was a free fight and in private defence, the fire arm
  was used. It was further contended that during trial, the accused
  appellants were on bail, therefore, looking to facts and
E circumstances of the case, the sentence awarded to accused/
  appellants be suspended during pendency of the appeal.

        (6) The High Court while rejecting the application filed
  under Section 389 of Cr.P.C has observed :- "Having heard
  rival submissions of the respective parties and upon careful
F perusal of judgment impugned, record of the case, more
  particularly, medical report and statements of doctors, without
  expressing any opinion on merits and demerits of the case
  stated that, the inevitable conclusion is that the application
  seeking suspension of sentence deserves to be rejected and
G thus, the bail/suspension of sentence application stands
  rejected."

      (7) Aggrieved by the impugned order passed by the High
  Court accused/appellants have come before us seeking
H suspension of execution of sentence and for releasing the
          ANGANA & ANR. v. STATE OF RAJASTHAN                     945


    appellants on bail during pendency of the appeal.                    A

        (8) We have heard learned counsel for the accused/
    appellants and learned counsel for the respondents.

          (9) Learned counsel for the appellants, submitted that High
    Court of Judicature at Jaipur was not justified in not suspending    B
    the sentence of the petitioner and not releasing them on bail
    during the pendency of the appeal by merely placing reliance
    on the medical reports a_nd statements of doctors. It is
    contended by the learned" counsel, that, High Court failed to
    consider the fact, that, during tria~ the appellants were on bail    C
    and have already undergone 6 months 26 days.and 2 months
    24 days sentence respectively of their ac!Cial sentence. It is
    further contended that the appeal pending before the High
    Court is in continuation of the proceedings. It is argued that the
    complainants were the actual aggressors causing injuries to          D
    several persons including appellants and created a false and
    frivolous case against the appellants. It is also submitted that
    the High Court ignored the testimony of the medical jurist and
    the medical reports, who did not support respondent's case. It
    can be said that injuries caused to the respondents are not of       E
    grievous nature caused by fire-arm. Therefore, learned counsel
    would submit that the High Court erred in denying the
    suspension of sentence or granting bail.

         (10) Learned counsel for the appellants in support of his
                                                                         F
    submissions has relied on the decisions of this court.
    Reference to those decisions will be made while discussing the
    issue canvassed by learned counsel for the appellants.

         (11) In the instant case, an application under Section 389
    of Cr.P.C. is filed for suspension of sentence by a convict,in a     G
    pending appeal. The accused was on bail when the matter was
+   pending before the Sessions court. It is not the case of the
    prosecution that the accused who is released on bail would
    abscond during the pendency of the appeal. When an appeal
    is preferred against conviction in the High Court, the Court has     H
    946          SUPREME COURT REPORTS                 (2009] 1 S.C.R.


A ample power and discretion to suspend the sentence, but that             i,--.
  discretion has to be exercised judiciously depending on the
  facts and circumstances of each case. While considering the
  suspension of sentence, each case is to be considered on the
  basis of nature of the offence, manner in which occurrence had
B taken  place, whether in any manner bail granted earlier had
  been misused. In fact, there is no strait jacket formula which
  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
c under Section 389 of Criminal Procedure Code.
       (12) This Court in the case of Takhat Singh and Others
  vs. State of M.P., (2001) 10 SCC 463, has held that, "the
  appellants are already in jail for over three years and 3 months.
  There is no possibility of early hearing of the appeal in the High
D Court. In the aforesaid circumstances the applicants be
  released on bail to the satisfaction of the learned Chief Judicial
  Magistrate, Sehore."

       ( 13) Reference can made to the decision of this court in
E the case of Kashmira Singh vs. State of Punjab, ( 1997) 4 SCC
  291, where this Court has obsen1ed that:

          "Now, the practice in this Court as also in many of the High
          Court has been not to release on bail a person who has
          been sentenced to life imprisonment for an offence under
F         Section 302 of the Indian Penal Code. The question is
          whether this practice should be departed from and if so,
          in what circumstances. It is obvious that no practice
          howsoever sanctified by usage and hallowed by time can
          be allowed to prevail if it operates to cause injustice. Every
G         practice of the Court must find its ultimate justification in
          the interest of justice. The practice not to release on bail
                                                                           ·+.
          a person who has been sentenced to life imprisonment
          was evolved in the High Courts and in this Court on the
          basis that once a person has been found guilty and
H         sentenced to life imprisonment, he should not be let loose,
       ANGANA & ANR. v. STATE OF RAJASTHAN                     947

       so long as his conviction and sentence are not set aside, A
~
       but the underlying postulate of this practice was that the
       appeal of such person would be disposed of within a
       measurable distance of time, so that if he is ultimately
       found to be innocent, he would not have to remain in jail
       for an unduly long period. The rationale of this practice can B
       have no application where the Court is not in a position to
       dispose of the appeal for five or six years. It would indeed
       be a travesty of justice to keep a person in jail for a period
       of five or six years for an offence which is ultimately found
       not to have been committed by him. Can the Court ever c
       compensate him for his incarceration which is found to be
       unjustified? Would it be just at all for the Court to tell a
       person: 'We have admitted your appeal because we think
       you have a prima facie case, but unfortunately we have no
       time to hear your appeal for quite a few years and,
                                                                      D
--;    therefore, until we hear your appeal, you must remain in
      jail, even though you may be innocent?' What confidence
      would such administration of justice inspire in the mind of
      the public? It may quite conceivably happen, and it has in
      fact happened in a few cases in this Court, that a person
      may serve out his full term of imprisonment before his E
      appeal is taken up for hearing. Would a judge not be
      overwhelmed with ~ feeling of contrition while acquitting
      such a person after hearing the appeal? Would it not be
      an affront to his sense of justice? Of what avail would the
      acquittal be to such a person who has already served out F
      his term of imprisonment or at any rate a major part of it?
      It is therefore, absolutely essential that the practice which
      this Court has been following in the past must be
      reconsidered and so long as this Court is not in a position
      to hear the· appeal of an accused within a reasonable G
      period of time, the Court should ordinarily, unless there are
+     cogent grounds for acting otherwise, release the accused
      on bail in cases where special leave has been granted to
      the accused to- appeal against his conviction and
      sentence."                                                      H
    948           SUPREME COURT REPORTS                [2009] 1 S.C.R.


A   The Court going by the said consideration held that:-

          "that so long as the Supreme Court is not in a position to
          hear the appeal of an accused within a reasonable period
          of time, the Court should ordinarily, unless there are cogent
          grounds for acting otherwise, release the accused on bail
B
          where special leave has been granted to the accused to
          appeal against his conviction and sentence. The other
          consideration, however, is equally important and relevant.
          When a person is convicted by an appellate court, he
          cannot be said to be an innocent person until the final
c         decision is recorded by the superior court in his favor. "

       (14) In the case of Babu Singh vs. State of UP., 1978 (1)
  SCC 579, it was observed, that, the significance and sweep
  of Article 21 make the deprivation of liberty a matter of grave
D concern and permissible only when the law authorising it is
  reasonable, even-handed and geared to the goals of
  community good and State necessity spelt out in Article 19.
  Indeed, the considerations I have set out as criteria are
  germane to the constitutional proposition I have deduced.
E Reasonableness postulates intelligent care and predicates that
  deprivation of freedom by refusal of bail is not for punitive
  purpose but for the bi-focal interests of justice-to the individual
  involved and society affected.

        (15) In Emperor v. H.L. Hutchinson, AIR 1931 All 356, it
F   was observed that:-

          "As to the object of keeping an accused person in
          detention during the trial, it has been stated that the object
          is not punishment, that to keep an accused person under
G         arrest with the object of punishing him on the assumption
          that he is guilty even if eventually he is acquitted is
          improper. This is most manifest. The only legitimate
          purposes to be served by keeping person under trial in
          detention are to prevent repetition of the offence with which
H         he is charged where there is apparently danger of such
       ANGANA & ANR. v. STATE OF RAJASTHAN                      949


     repetition and to secure his attendance at the trial. The first   A
     of those purposes clearly to some extent involves an
     assumption of the accused's guilt, but the very trial itself
     is based on a prima facie assumption of the accused's
     guilt and it is impossible to hold that in some
     circumstances it is not a proper ground to be considered.         8
     The main purpose however is manifestly to secure the
     attendance of the accused."

      (16) In the case of Bhagwan Rama Shinde Gosai v. State
or Gujarat, (1999) 4 SCC 421, this Court has stated that when
a convicted person is sentenced to a fixed period of sentence          C
and when he files an appeal under any statutory right,
sL:spension of sentence can be considered by the appellate
cc.urt liberally unless there are exceptional circumstances. The
Court has observed :
                                                                       D
      "3. VI/hen 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    E
     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
                                                                       F
     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              G
     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
                                                                       H
    950          SUPREME COURT REPORTS                [2009] 1 S.C.R.


A         when bail is granted."

        (17) This Court in the case of Suresh Kumar and Others
   Vs. State (NCT of Delhi}, (2001) 10 SCC 338, where the
  appellants had been convicted under Section 307 read with
  Section 34 of the Indian Penal Code and each was sentenced
8 to imprisonment for a period of three years and to pay fine of
  Rs. 2000/-, when they moved an application under Section 389
  of Code of Criminal Procedure for suspension of the sentence
  of imprisonment, the High Court had rejected the application.
  This Court following the observations made in the case of
C Bhagwan Rama Shinde Gosai, while allowing the appeal filed
  by the convict, had kept in abeyance the order of conviction
  passed by the trial court till the disposal of the appeal filed by
  the convict and also had directed the release of the convict on
  bail.
D
        (18) In Kishori Lal Vs. Rupa and Others, (2004) 7 SCC
  638, this Court has indicated the factors that require to be
  considered by the courts while granting benefit under Section
  389 in cases involving serious offences like murder etc., it is
E useful to refer to the observations made therein. They are :-

                 "4. Section 389 of the Code deals with suspension
          of execution of sentence pending the appeal and release
          of the appellant on bail. There is a distinction between bail
          and suspension of sentence. One of the essential
F         ingredients of Section 389 is the requirement for the
          appellate court to record reasons in writing for ordering
          suspension of execution of the sentence or order appealed
          against. If he is in confinement, the said court can direct
          that he be released on bail or on his own bond. The
G         requirement of recording reasons in writing clearly
          indicates that there has to be careful consideration of the
          relevant aspects and the order directing suspension of
          sentence and grant of bail should not be passed as a
          matter of routine.
H
               ANGANA & ANR. v. STATE OF RAJASTHAN                   951


                    5. The appellate court is duty-bound to objectively A
-....{
             assess the matter and to record reasons for the conclusion
             that the case warrants suspension of execution of sentence
             and grant of bail. In the instant case, the only factor which
             seems to have weighed with the High Court for directing
             suspension of sentence and grant of bail is the absence B
             of allegation of misuse of liberty during the earlier period
             when the accused-respondents were on bail.

                     6. The mere fact that during the trial, they were
             granted bail and there was no allegation of misuse of
             liberty, is really not of much significance. The effect of bail
                                                                             c
             granted during trial loses significance when on completion
             of trial, the accused persons have been found guilty. The
             mere fact that during the period when the accused persons
             were on bail during trial there was no misuse of liberties,
             does not per se warrant suspension of execution of D
             sentence and grant of bail. What really was necessary to
             be considered by the High Court is whether reasons
             existed to suspend the execution of sentence and
             thereafter grant bail. The High Court does not seem to
             have kept the correct principle in view."                       E

              (19) The aforesaid view is reiterated by this court in the
         caise of Vasant Tukaram Pawar Vs. State of Maharashtra,
         (2005) 5 SCC 281 and Gomti Vs. Thakurdas and Others,
         (2007) 11 sec 160.                                                 F
              (20) In Sidharth Vashisht@ Manu Sharma Vs. The State
         (N. C. T. of Delhi), (2008) 5 SCC 230, this Court after
         ccmsidering all the earlier decisions on the issue of
         ce:nsideration of an application under Section 389 of the Code
         of Criminal Procedure, has concluded, that in serious offences G
         like murder, sentence would generally be not suspended by
         court.

              (21) In the present case, the appellants were on bail during
         th13 pendency of the case before the Sessions Court. The H
    952          SUPREME COURT REPORTS                [2009] 1 S.C.R.


A Sessions Court has acquitted most of the accused persons after
  trial except the appellants. It is not the case of the other side,
  that, when the accused were on bail they had indulged
  themselves in any offence either under the provisions of Indian
  Penal Code or any other Statute. It is also not the case of the
B prosecution that when the appellants were on bail they had
  either jumped the bail or were any way responsible for
  prolonging the proceedings before the Sessions Court, and it
  is also not the case of the other side that they would abscond
  and would not be available, to undergo the sentence if the
c appellate court affirms the order passed by the Sessions Court.
       (22) Taking into consideration over all view of the matter
  and in particular offence alleged and sentence imposed and
  further taking into consideration the acquittal of other accused
  persons, who were also charge sheeted in the same offences
D as that of the appellants and further taking into consideration
  the conduct of the appellants during the trial before the Sessions
  Court when they were on bail, in our view the High Court could
  have suspended the sentence and granted bail to the
  appellants. Therefore, this Court would be justified under Article
E 136 of the Constitution in interfering with the discretion exercised
  by the High Court. \f\/e, therefore, suspend the sentence and
  direct the appellants io be released on bail on each one of
  them executing a bond with two solvent sureties to the
  satisfaction of Additional District and Sessions Judge, Deeg.
F
       (23) The appeal is disposed of, ordered accordingly.

    R.P.                                       Appeal disposed of.