Author: . A Pasayat Bench: Arijit Pasayat, Asok Kumar Ganguly REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2009 (Arising out of SLP (Crl.) No. 6513 of 2008) Anil Ari ..Appellant Versus State of West Bengal ..Respondent JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in this appeal is to the order passed by a Division Bench of the Calcutta High Court rejecting the application for suspension of sentence under Section 389 of the Code of Criminal Procedure, 1973 (in short the `Code). Four persons who are the appellants in Criminal Appeal No.168 of 2008 were convicted by learned Additional District and Sessions Judge, Fast Track, Second Court, Contai, Purba Medinipur for offences punishable under Sections 342, 302 and 201 read with Section 34 of the Indian Penal Code, 1860 (in short the `IPC). 3. Law was set into motion on 9.7.1994 by one Shamburam Maity, alleging that 17 accused persons and many unknown persons on 8.7.1994 at about 11.00 p.m. in furtherance of their common intention had murdered the complainants brother Shibram Maity and had concealed the dead body in the house of one Sasanka Maity. The police undertook investigation and after completion of investigation charge sheet was filed against 19 persons. Charge was framed on 5.11.2005 and the accused persons faced trial as they pleaded innocence. 4. It is to be noted that charges were framed against 16 persons as two of the accused persons had expired before the commencement of the trial. The trial Court on consideration of the evidence came to hold that appellants before the High Court were guilty as afore-noted. 2 5. The application for suspension of sentence in terms of Section 389 of Code was filed which was rejected primarily being of the view that the evidence of PWs 1, 2, 4 and 7 was sufficient to establish the accusations and, therefore, this was not a fit case where prayer in terms of Section 389 of Code was to be accepted. 6. On 29.9.2008 a Special Leave Petition was dismissed in respect of petitioner Nos.2 to 4. Notice was issued qua petitioner No.1 only. Learned counsel for the appellant-Anil Ari submitted that the said appellant is nearly 70 years old and is in jail for nearly one year and that he was on bail during trial. 7. Learned counsel there was no allegation of misuse of liberty, is really not of much significance. The effect of bail 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 sentence and grant of bail. What really is necessary to be considered by the High Court is whether reasons existed to suspend the execution of 4 sentence and thereafter grant bail. 11. In Vijay Kumar V. Narendra and others (2002 (9) SCC 364) and Ramji Prasad V. Rattan Kumar Jaiswal and another (2002 (9) SCC 366), it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumars case (supra) it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the Court should consider the relevant factors like the nature of accusation made against the accused
Posted on: Sun, 24 Aug 2014 08:15:54 +0000
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