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Judgment
G. Rajasuria, J.—This petition has been filed to set aside the order of dismissal passed in Crl.M.P. No. 539 of 2010 in C.A. No. 23 of 2010 dated 05.08.2010 on the file of the learned Sessions Judge, Karur.
A re ''sume'' of facts absolutely necessary and germane for the disposal of this petition would run thus:
The Petitioners were convicted by the learned Asst. Sessions Judge, Karur, for the offence punishable u/s 395 I.P.C. and sentenced to undergo 7 years rigorous imprisonment, as against which the appeal in C.A. No. 23 of 2010 was filed and along with that, Crl.M.P. No. 539 of 2010 was filed invoking Section 389(1) Code of Criminal Procedure and sought for suspension of sentence; but, the learned Sessions Judge dismissed it on the main ground that the accused had all along been in jail pendente lite and hence, he rejected the bail.
Being aggrieved by and dissatisfied with the said order, this petition has been filed, on the main ground that the reason furnished by the learned Sessions Judge was far from satisfactory and that no law envisages that if a convict had been in jail pendente lite, he should not be given suspension of sentence.
Heard the learned Government Advocate (Criminal Side) for the Respondent, who would submit that the Petitioners have been in jail ever since they were arrested and that if they are released on bail by granting the order of suspension of sentence, then certainly, their chances of appearing before the appellate Court would be very remote. 5. Whereas the learned Counsel for the Petitioners would submit that the other three convicts in the same case are enjoying the suspension of sentence and that in such a case, no exception could be carved out as against the Petitioners herein.
Considering pro et contra, I am of the view that the reason cited by the learned Sessions Judge that suspension was not granted because they were in jail as on the date of judgment, is not correct. No doubt, at the time of suspending the sentence, the appellate Court has got wide discretionary power and that the same should be used judiciously. In this case, the learned Sessions Judge cited only one reason for rejecting the prayer for suspension of sentence so to say, they were in jail as on the date of judgment. The learned Sessions Judge should have considered the ex-facie merit and the antecedents of the Petitioners before rejecting their prayer for suspension of sentence. At that stage, even the appellate Court has got the power prima facie to consider as to whether there is any favourable point in favour of the Petitioners for getting such suspension, but all those points have not been considered by the learned Sessions Judge.
Hence, I could see considerable force in the submission of the learned Counsel for the Petitioners.
In the result, this petition is allowed and the order passed in Crl.M.P. No. 539 of 2010 in C.A. No. 23 of 2010 dated 05.08.2010 on the file of the learned Sessions Judge, Karur, is set aside and the matter is remitted back to the learned Sessions Judge for considering it in view of the observations made by this Court supra and accordingly, dispose it within a period of fifteen days from the date of receipt of a copy of this order.