Sanjay Kumar Gupta ORDER
Sanjay Kumar Gupta, J.
IA No. 01/2017
1. The petitioner/appellant has filed the instant application seeking suspension of sentence and for grant of bail in case titled State of J&K v. Sanjay Kumar, File No. 263/Sessions, in which he stands convicted vide order dated 31.10.2017 passed by the learned Principal Sessions Judge, Bhaderwah, under Section 304-II RPC. It is pertinent that against order of conviction/sentence, the applicant/appellant has also preferred an appeal being CRA No. 33/2017.
2. In the application, it is stated that the petitioner/appellant has been convicted under Section 304-II RPC and sentenced to undergo rigorous imprisonment of 10 years on flimsy grounds. The petitioner/appellant has been convicted for the culpable homicide not amounting to murder of his wife, namely, Sona Devi. It is factually a case of no evidence and the related witnesses, on the basis of which, the judgment and sentence has been passed, are only hear say witnesses. The petitioner/appellant has been prejudiced by the judgment and he has also undergone substantial period in jail and only two years of sentence is remaining, therefore, in such circumstances when the probability of the final adjudication is bleak, the petitioner/appellant may be granted bail. This fact has to be read in conjunction with Section 497 Cr.P.C. It is further stated that the petitioner/appellant has a strong, prima facie, case inasmuch as, balance of convenience tilts in his favour. It is, therefore, prayed that the impugned judgment dated 31.10.2017 as well as sentence passed therein may kindly be suspended and the petitioner/applicant be released on bail.
3. In opposition, Mr. Suneel Malhotra, learned GA has filed objections wherein it is stated that the petitioner/appellant has been convicted by the learned Principal Sessions Judge, Bhaderwah for offence u/s. 304-II RPC and sentenced to rigorous imprisonment for ten years and also to pay compensation of Rs. 2 lakhs (rupees two Lakh only). It is further stated that the petitioner has been held guilty of the heinous offence of sniffing out the life of his 19 years old wife barely month after the marriage and has no right vested in him to crave indulgence of this Court to release him on bail. The guilty of the petitioner/appellant has been brute beyond doubt and he is liable to undergo the rigorous punishment imposed upon him. No ground much less cogent has been given in the application seeking suspension of sentence or grant of bail. It is further stated that the application filed by the petitioner/appellant seeking release on bail being misconceived and baseless, may kindly be dismissed.
4. Heard learned counsel for the applicant/appellant as well as learned State Counsel and considered the law on the subject.
5. Section 497-D of Code of Criminal Procedure reads as under:-
"497-D. Maximum period for which an under trial prisoner can be detained.-Where a person has during the period of investigation, inquiry or trial under this Code or an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under the law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties: Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded in the writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of personal bond with or without sureties:
Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than maximum period of imprisonment provided for said offence under the law. Explanation:- In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded."
6. Bare perusal of Section 497-D Cr.P.C., makes it clear that where a person has during the period of investigation, inquiry or trial under this Code or an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under the law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties.
7. In present case, the applicant has undergone more than half of the sentence awarded to him by the learned trial Court.
8. In case titled 'Mithu Pasi and anr. v. State of Jharkhand' reported in MANU/SC/1089/2016 : 2016 (8) Scale 654, it is held as under:-
"Criminal Procedure Code, 1973 Section 389 Indian Penal Code, 1860 Section 326 Sentence- Suspension of- Appellant inflicted injury with knife on victim- Already undergone 6 years imprisonment without remission out of ten years awarded- Just and proper to direct suspension of remaining sentence."
9. In case titled 'Thana Singh v. Central Bureau of Narcotics' MANU/SC/0054/2013 : 2013 AIR (SCW) 800, it is held as under:-
"Narcotic Drugs and Psychotropic Substances Act, 1985-Criminal Procedure- Bail in NDPS case- Delay in Trial-Appellant was languishing in jail for more than 12 years, awaiting, even the commencement of his trial for an offence under NDPS Act and he consistently denied bail, as noted, even by the High Court- Court took serious note of the fact that the maximum punishment for the offence in question is incarceration for 20 years, hence the under trial remained in detention for a period exceeding 1/2 of the maximum period of imprisonment, in the light of Section 37 of the Act, stated to be against the express pronouncement of it in Supreme Court Legal Aid Committee Representing Under trial Prisoners v. Union of India & Ors., MANU/SC/0877/1994 : (1994) 6 SCC 731- Court not only granted the bail deserved by appellant- Thana Singh, but in a view to ensure that in future no under trial under NDPS Act is made to suffer such an anguish and plight, issued several directions."
10. Hon'ble Supreme Court in case 'Bhim Singh v. Union of India and ors.' MANU/SC/0786/2014 : 2016 (1) SCC (Cri) 663, it is held that 'under trial prisoners who have completed half of maximum sentence prescribed for offence for which they were arrested, not be detained in jail'.
11. Appeal is a continuation of trial. In present case appellant has been awarded punishment for ten years and he has already undergone about nine years.
12. In view of the above, I am inclined to suspend the sentence awarded by trial court and enlarge the applicant/appellant on bail, subject to the following conditions:-
a) That the applicant/appellant, shall furnish personal bond in the amount of Rs. One lac with one surety of like amount to the satisfaction of the Registrar Judicial of this Court.
b) The applicant/appellant shall not leave the State of Jammu and Kashmir without permission of this Court.
c) The applicant/appellant shall appear before this Court on each and every date of hearing.
d) Any violation of conditions shall amounts to cancellation of bail.
13. IA No. 01/2017 is, accordingly, allowed.
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