Kan Singh and another vs State of Rajasthan

Sandeep Mehta, J. - Issue notice to the respondent. Learned Public Prosecutor accepts notice for the respondent State.

With the consent of the learned counsel for the parties, the revision petition itself is being heard and decided today.

By way of this revision petition, the petitioners have approached this Court being aggrieved of the order dated 16.12.2015 passed by the learned Additional Sessions Judge, Nathdwara in Criminal Appeal No.39/2015 whereby the application preferred by the petitioners under Section 389 Cr.P.C. was rejected. The petitioners were convicted by the learned Additional Chief Judicial Magistrate, Nathdwara in Criminal Case No.275/2008, vide judgment dated 11.12.2015, and were sentenced to different counts of punishment extending to a maximum period of five years. The said judgment was challenged by the petitioners by preferring an appeal before the learned Additional Sessions Judge, Nathdwara accompanied with an application under Section 389 Cr.P.C. The application under Section 389 Cr.P.c. was rejected by the learned appellate court by the order dated 16.12.2015 which is under challenge in this revision petition. Needless to say that as per the procedure provided under the Code of Criminal Procedure, a person convicted by the Court of Magistrate and sentenced to imprisonment of three months and above with fine of Rs. 1,000/- and above has a right to challenge such conviction by preferring an appeal before the concerned Sessions Court. The right of filing an appeal in such a situation is unfettered. If the appeal itself is not heard and the convicted accused is kept behind bars then, the very purpose of filing the appeal is likely to be frustrated. Furthermore, the accused in this case were convicted after the protracted trial. The allegations against the accused are based on bulky oral and documentary evidence. Thus, the counsel representing the accused in the appellate court would be definitely requiring the assistance of the accused in preparing and arguing the appeal. The appellant court has not opined in its order that the appeal is likely to be heard in the near future. Thus if the sentences awarded to the accused are not suspended and they are continued to be incarcerated in custody during pendency of appeal, the very purpose of filing the appeal would be frustrated. In this view of the matter, this Court is of the opinion that the appellate court was not justified in dismissing the application filed by the petitioners under Section 389 Cr.P.C.

Accordingly, the revision petition deserves to be and is hereby allowed. The impugned order dated 16.12.2015 passed by the learned Additional Sessions Judge, Nathdwara is hereby set aside. The learned appellate court being the Additional Sessions Judge, Nathdwara is directed to suspend the sentences awarded to the petitioners by the trial court during the pendency of the appeal, on appropriate terms and conditions.