Ayub Khan vs State Of Telangana

The petitioner is the appellant in Criminal Appeal No.39 of 2022 pending on the file of II Additional Metropolitan Sessions Judge who has filed the present petition seeking bail under Section 389 (2) r/w Section 482 of Cr.P.C, on the ground that he has undergone imprisonment of nearly four years seven months, when the conviction recorded by the trial Court is five years under section 420 of IPC.

Sri V.Surender Rao, learned counsel for the petitioner/A1 has relied upon on unreported judgment of the Hon’ble Supreme Court in Criminal Appeal No.302/2022 arising out of SLP (Crl.) No.9969/2021, wherein the Hon’ble Supreme Court enlarged the petitioner/appellant therein as he was in custody for more than 6 years and the maximum term of imprisonment is 7 years for the offence alleged, relying upon Section 436-A of Cr.P.C.

In the present case, the petitioner/A1 has served almost 4 years 7 months in jail. When the matter came up for hearing on 27.04.2022, this Court passed the following order:

“ The petitioner/Accused No.1 is seeking bail in Crl.Appeal No.39 of 2022 in which case the petitioner was convicted for a period of 5 years.

Learned counsel for the petitioner/Accused No.1 submits that the petitioner has undergone imprisonment for 4 years 5 months and 15 days which is substantive part of the imprisonment is completed and under Section 436-A of Cr.P.C, the court shall release the petitioner/appellant/Accused No.1 on bail on his executing personal bond with or without sureties.

On the other hand learned Assistant Public Prosecutor submits that there are several cases pending against this petitioner and deliberately the petitioner is evading arguments in the appellant court.

List the matter on 06.06.2022, on which date both parties shall cooperate with completion of hearing of the Appeal, failing which the petitioner would be entitled for bail.”

Learned counsel for the petitioner/A1 abiding by this Court order dated 27.04.2022, has appeared before the appellate court and filed memos stating that he is ready to submit the arguments and such memos were filed on 12.05.2022, 26.05.2022, 27.05.2022, 30.05.2022 and 1.06.2022 but the arguments were not heard for various reasons. However, arguments were advanced on 03.06.2022 by the counsel for the petitioner/A1 and the case stands posted to 06.06.2022.

Learned counsel for the petitioner/A1 submits that two appeals are filed by the State, one for enhancing the sentence and also against acquittal recorded by the trial Court under Sections 468 r/w 120 IPC, 471 r/w 120-B of IPC.

Though the learned Public Prosecutor does not dispute that the sentence of 4 years and 7 months is served till date, however, apprehends that the petitioner/A1 is likely to indulge in criminal acts, if released on bail, as seen from his previous record and the number of cases he was involved. A detailed counter is also filed by the prosecution giving all the details of the petitioner’s criminal record and his involvement in several cases along with his associates, as such, learned Public Prosecutor argued that in the said circumstances, from the background of this petitioner, it can be safely concluded that if the petitioner is released on bail, he would again indulge in criminal activities.

As seen from the record, the petitioner/A1 has served sentence about 4 years and 7 months against conviction and sentence of 5 years. The maximum imprisonment for the offence under Section 420 of IPC is 7 years and under Section 436-A of Cr.P.C, a person undergoing detention for a period of extending upto one half, which is 3 ½ years of imprisonment, the person shall be released on bail. However, the proviso enables the Court to extend the period of detention longer than one half of the period of imprisonment. The Full Bench of Bombay High Court in the case of Maksud Sheikh Gaffur Sheikh v. State of Maharashtra 2020 SCC OnLine Bom 878 held that an appeal could be said to be continuation of trial in the general sense, however, it is not so for the purpose of Section 436-A of Cr.P.C. Further, the Full Bench went on to consider the provision under Section 436-A of Cr.P.C and held that if the intention of the legislature was to give benefit under Section 436-A of Cr.P.C to convict before an appellate Court, it would have been suitably amended the provision under Section 389 of Cr.P.C. For the said reason, the Full Bench found favour with the argument that Section 436-A is not applicable at the stage of appeal.

In Judgment of Hon’ble Supreme Court in Criminal Appeal No.302/2022 arising out of SLP (Crl.) No.9969/2021, though reliance was placed on Section 436-A of Cr.P.C, however, no finding is given regarding the applicability of Section 436-A at the stage of appeal.

Keeping in view the conduct of the petitioner being involved in several cases whenever he was released on bail, this Court is of the view ordering day to day hearing of the appeals would serve the ends of justice.

Accordingly, the prayer for bail is refused. However, the learned Sessions Court is directed to dispose of the appeals by taking up the appeals on day to day basis and keeping in view the detention of the petitioner for more than 4 ½ years.

With the above direction, this Criminal Petition is disposed of. As a sequel thereto, miscellaneous petitions, if any, shall stand closed.