Subhash vs State of Rajasthan

Alok Sharma, J.—The matter comes up on a second application for suspension of sentence qua the judgment of conviction dated 14.12.2011 in Sessions Case No. 38/2010 passed by the Special Judge, Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act Cases, District Sikar whereby the applicant has been sentenced to 10 years'' rigorous imprisonment.

On the first application for suspension of sentence, which came up before this Court on 01.02.2013, this Court was not inclined to suspend the sentence and dismissed the said application. However, it was observed that counsel for the applicant-appellant would be free to move an application for expediting the hearing of the appeal.

The counsel for the applicant submits that against the order dated 01.02.2013 passed by this Court dismissing the first application for suspension of sentence, the applicant moved the Hon''ble Supreme Court and vide order dated 12.07.2013, the Hon''ble Supreme Court even while dismissing the special leave to appeal against the order dated 01.02.2013, observed that in case, the criminal appeal of the applicant were not to be heard within one year from the date of the order passed by it, it would be open for the applicant to renew his prayer before this Court for grant of regular bail (suspension of sentence).

Counsel submits that thereafter an application was moved on 12.09.2013 before the court hearing the criminal appeals. It was prayed that the order dated 12.07.2013 passed by the Hon''ble Supreme Court in the special leave petition against the order dated 01.02.2013 passed by this Court be taken on record and the appeal may be listed for hearing. On the said application, the court was pleased to take the order dated 12.07.2013 passed by the Hon''ble Supreme Court on record but no order with regard to early hearing of the appeal was passed, even though prayed for.

In the aforesaid background, the counsel for the applicant has submitted that the accused is entitled for suspension of sentence on this second application for the purpose. He submits that the accused was inflicted a sentence of 10 years'' rigorous imprisonment out of which he has already suffered 4 years and 8 months in jail. It is submitted that the delay in hearing of the appeal is not attributable to the applicant but it appears to be occasioned by the heavy dockets of the Court. It is submitted that even though the order passed by the Apex Court was brought to the notice of the appellate court and early hearing of the appeal prayed for, only the order for taking the order of the Hon''ble Supreme Court on record was passed. No order on the prayer for early hearing was passed. Counsel submits that the appeal filed against the judgment of conviction has the potential 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 4 years and 8 months incarceration by itself adds substantial weight thereto and furnishes a good ground for suspension of sentence on this second application. It has been submitted that willy nilly, a similar argument has prevailed in the case of HEC Voluntary Retd. Emps. Welfare Soc. and Another Vs. Heavy Engineering Corporation Ltd. and Others, 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 applicant submits that in the event the appeal were to be dismissed, the accused would be available for suffering the remaining sentence. Conversely, there would be no way to reimburse the accused for his lost years if even the appeal were to be allowed.

None appears for the State in spite of issuance of notices.

Mr. Kamlendra Sihag, counsel appearing for the complainant submits that the accused is convict in respect of a serious offence under Section 376(2)(G) as also under the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989. 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. It is submitted that the first application for suspension of sentence was dismissed on merits and there is no change to warrant the indulgence to the applicant on a second application 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 the law.

Heard the counsels for the parties and considered the facts of the case.

Albeit the applicant is an accused of the offence under Section 276(2)(G) IPC and also under the Act of 1989 has been sentenced to serve a period of 10 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 has served about 4 years and 8 months in incarceration as against the sentence of 10 years. The delay in the disposal of the appeal is not attributable to the applicant from the fact detailed hereinabove. 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 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. The applicant has approached the appellate court in terms of the order dated 01.02.2013 for expediting the appeal and even brought to the notice of the appellate court, the Hon''ble Apex Court''s order dated 12.07.2013 in his dismissed SLP but without any success in having his appeal heard and decided. In the circumstances, the delay in the disposal of the appeal cannot be attributable to the applicant.

Consequently, to balance the right of the accused as against the rights of the State as also the prosecutrix, 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 14.12.2011 by the trial court. This will be subject to the condition of the accused appellant keeping good behaviour and conduct. It is however in order to record that in the event of complainant approaching the Court for expediting the appeal and the court so granting indulgence, it shall be incumbent on the accused to have his appeal argued failing which the complainant will be free to approach this Court for recalling of this order.

Consequently, the second application for suspension of sentence is allowed and it is ordered that the sentence of the accused appellant Subhash S/o Shri Sukhdevaram in Session Case No. 38/2010 shall remain suspended, during the pendency of the appeal, provided he furnishes a personal bond of Rs. 50,000/- with two sureties of the like amount to the satisfaction of the trial court and he shall appear before this Court on 23.02.2015 as also whenever called upon to do so.