1. IA. No.2036/2015 filed for urgent hearing of IA No.2388/2014 (repeat application u/S. 389, Cr.P.C.) is considered and allowed for the reasons mentioned therein.
2. I.A.No.2388/2014 repeat application for suspension of jail sentence of sole appellant filed under Section 389 of Cr.P.C., is taken up.
3. The reply filed by the State to I.A. No. 2388/2014 objecting to the prayer for suspension of sentence is also considered.
4. Learned counsel for the appellant relying upon the decision of the Apex Court in the cases of Kamal v. State of Haryana reported in (2006) 1 SCC (Cr.) 757, Fazal v. State of Uttar Pradesh reported in (2012) 5 SCC 752 and Sunil Kumar v. Vipin Kumar reported in (2014) 8 SCC 868 prays for suspension of sentence of life imprisonment being suffered by the sole appellant on account of the impugned judgment and conviction dated 05.08.2004 in S.T. No. 268/2003 by First Additional Judge to the court of Sessions Judge, Gwalior (M.P.)
5. Learned counsel for the appellant in support of the said prayer raises the following grounds ;
1. The appellant has suffered more than 11 years of rigorous imprisonment as against the life sentence awarded.
2. The appellant has been wrongly convicted and sentenced by incorrect appreciation of facts and circumstances attending the case.
3. The appellant's past conduct has been exemplary for not having misused the liberty of temporary suspension of the sentence granted earlier on ground of ill-health by orders dated 20.06.2008, 24.04.2009, 24.08.2009 and 20.03.2010.
4. Despite the present appeal being of 2004 vintage and despite directions of this Court for expeditious hearing of this appeal and despite the appellant having made all out efforts to get the appeal heard, the same continues to be pending with no hope of hearing taking place in the near future, since the appeals of the year of 1998 are still pending for consideration.
6. Pertinently, I.A. 2388/2014 is a repeat application for suspension of sentence after rejection of similar applications by order dated 03.02.2012 and 17.05.2013 which were dismissed on merits.
7. This Court refrains from entering into the merits of the allegations found proved against the appellant in view of rejection of earlier bail application for suspension of sentence on merits.
8. The sole question before this Court is as to whether in the attending circumstances as mentioned above, a life convict who has suffered about 11-12 years of rigorous imprisonment can successfully seek suspension of sentence merely on grounds of having undergone substantial period of sentence and there being no possibility of final hearing of the pending appeal.
9. Before answering the above said question, it would be appropriate to consider the earlier verdicts of the Apex Court on the said aspect which are enumerated below;
In Kashmira Singh v. State of Punjab reported in 1977 (4) SCC 291, while contemplating upon the question as to whether the earlier practice, of not suspending the sentence of life convict for offence under Section 302 of IPC, can be departed from or not the Apex Court in sum and substance, held as under ;
1. No practice, howsoever, sanctified by usage and hallowed by time can be allowed to prevail if the same leads to injustice.
2. Every practice of the Court must find its ultimate justification in the interest of justice.
3. Earlier practice of denial of suspension of sentence to a life convict was based on the assumption that the appeal in question shall be disposed of within a reasonable period of time to avoid prolonged post conviction custody.
4. The rationale of this practice can have no application where the Court is unable to dispose of appeals for five/six years.
5. Absence of any provision in the Cr.P.C. to compensate a convict who is ultimately found to be innocent.
6. Keeping the innocent convict under the prolonged custody shakes the confidence of the public in the administration of justice when the convict is found innocent after prolonged post conviction custody.
10. Therefore, the earlier practice of not suspending the sentence can be relaxed when the courts are unable to hear the appeal within reasonable period of time unless cogent grounds to act otherwise are available.
11. The above said view of the Apex Court was followed in Babu Singh V. State of U.P., reported in 1978 (1) SCC 579 and Shailendra Kumar V. State of Delhi reported in (2000) 4 SCC 178.
12. The liberal and pro-convict view taken by the Apex Court in the case of Kashmira Singh (supra) has crystallized into a more balanced approach in the decisions of Bhagwan Rama Shinde Gosai and Ors. v. State of Gujrat reported in (1999) 4 SCC 421, Akhilesh Kumar v. State of Bihar reported in (2000) 6 SCC 461, Vijay Kumar v. Narendra reported in (2002) 9 SCC 364, Ramji Prasad v. Rattan Kumar Jaiswal reported in (2002) 9 SCC 366, State of Haryana v. Hasmat reported in (2004) 6 SCC 175, Kishori Lal v. Rupa reported in (2004) 7 SCC 638, State of Maharashtra v. Madhukar Wamanrao Smarth reported in (2008) 5 SCC 721, Sidhartha Vashisht v. State (NCT of Dehli) reported in (2008) 5 SCC 230, Angana v. State of Rajasthan reported in (2009) 3 SCC 767, Sunil Kumar v. Vipin Kumar reported in (2014) 8 SCC 868 in which following were held to be some of the primary factors to be kept in mind while considering prayer for suspension of sentence in conviction involving grave offences.
1. Nature of accusation.
2. Manner of commission of crime.
3. Gravity of offence.
4. Desirability of release of convict on bail.
5. The convict did not misuse the liberty of bail granted earlier by the trial/Appellate Court.
6 Raghuwar Singh alias Raghuveer Singh v. State of M.P.
6. The power of suspension of sentence of offence like murder should be sparingly exercised in exceptional cases.
7. The order of suspension of sentence ought to contain reasons in writing reflecting the consideration of these relevant aspect.
8. The suspension of sentence in serious offences like murder ought not to be granted merely on the ground that an accused was on bail during trial.
13. Apart from the above said relevant consideration elucidated by the Apex Court, this Court is of the considered view that the following considerations should also be taken into account while deciding the question of suspension of sentence of a convict suffering life sentence ;
1. The antecedent of convict, to find out existence/non-existence of criminal proclivity.
2. Where the release of the convict would be detrimental to the public interest.
14. The foundational factual matrix involved herein is that the petitioner has suffered about 11 to 12 years of incarceration. The appellant has not misused the liberty of temporary suspension of sentence granted by this court on grounds of ill health. In this High Court (Gwalior Bench) the criminal appeals of 1998-99 are yet to be heard and therefore there does not appear any possibility of this appeal coming up for final hearing in the near future. It is reflected from the arrest memo dated 13.7. 2003 that the applicant does not have criminal antecedents. The appellant is presently stated to be about 54/55 years of age.
15. From the evidence found to be proved prima facie it appears that the appellant has participated in the offence of murder of deceased Hero by repeated assault with knife. Learned counsel for the appellant has attempted to point out certain omissions, contradictions and embellishment in the prosecution story but this court refrains from considering the same since this court intends to decide it on considerations other than merits.
16. Per contra, learned counsel for the State and the victim have objected to the suspension of sentence by contending that similar prayer has earlier been rejected on merits and there is no new circumstance for making the said prayer again much less allowing the same.
17. It is settled proposition of law that an appeal is a continuation of trial and, therefore the conviction, which it challenges, is though binding on the parties, but is not final and remains subject to the appellate order, as and when passed.
18. Therefore while considering the application under Section 389, Cr.P.C. at the initial stage of the appeal, the merits of the findings of the trial Court are seen though perfunctorily to ascertain justifiability of release on bail. However, when substantial part of the sentence is suffered with no foreseeable hope of final hearing in the appeal in near future, the factor of merit involving gravity of offence, nature of commission of offence and quality of evidence on record, takes a backseat and instead, the factors pertaining to the post conviction period, i.e., period of custody, post conviction behaviour, instances of misuse of bail, age, possibility of hearing of the appeal in near future and efforts made by the counsel for convict to get the appeal heard, assume prominence and primacy.
19. When the claim for suspension of sentence raised by the appellant is tested on the principles laid down by the Apex Court it is seen that 11 to 12 years of custody is suffered by the appellant who has no criminal antecedents. However looking to the fact of nature of offence and the active participation of the appellant in the said crime release of appellant on bail by suspension of sentence may give rise to an apprehension of unleashing of vendetta between the rival parties. The existence of such apprehension cannot be denied, but the emotion of revenge if at all present in all probabilities must have diluted to a considerable extent due to passage of time. The offence was committed some time in July, 2003 whereafter nearly 12 years have goneby. The intensity of the feeling of animosity between the rival parities must have lost its sting. Time is said to be a big healer. Passage of about 12 long years not only mitigates the feeling of animosity but also gives rise to saner and humane emotions of forgive and forget. Elapse of such long period of time changes the outlook of an individual towards a particular incident howsoever painful it may be. This view has been upheld by the Apex Court in the case of State of Punjab v. Ajaib Singh reported in (1995) 2 SCC 486, relevant extract of which is reproduced herein below:-
6. Prior to adjudicating on the rival submissions, it appears necessary to preface it with few observations general in nature but vital according to us. Although crime never dies nor there should be any sympathy for the criminal, yet human factors play an important role and reflect advertently or inadvertently in the decision-making process. In this appeal there is a time-lag of more than eighteen years from the date of the incident and nearly fifteen years from the date of acquittal and its hearing. By any standard it is shocking. And this has been aggravated by still more shocking behaviour of the Government which shall be adverted to later. Speedy trial, early hearing and quick disposal are sine qua non of criminal jurisprudence. In some countries like England days are fixed statutorily for trial of cases. Keeping an accused in custody for a day more than it is necessary is constitutionally impermissible and violative of human dignity, freedom of life and liberty. The overcrowded court dockets, the phenomenal rise of public interest litigation, duty to ensure enforcement of fundamental rights undoubtedly keeps this Court under stress and strain. But that cannot be an excuse for keeping the sword of Damocles hanging on the accused for an indefinite period of time. It does not do any credit rather makes one sad. If the accused is not granted bail and serves out the sentence then the appeal is rendered academic for all practical purposes. And the right to establish innocence fades away in lack of enthusiasm and interest. If he is granted bail then long delay may give rise to humane considerations. Time heals the gravest scar and mitigates deepest injury suffered physically, mentally and emotionally. Therefore, if the courts have been rendered helpless and the exasperating delay is threatening to eat away the system then the Government may consider either to increase the strength to clear the backlog or devise some mechanism by which criminal appeals pending for more than reasonable time in higher courts should stand disposed of. (emphasized supplied)
20. An appeal of a life convict in custody pending since more than 11 years with no hope of final hearing in the near future, discloses a dismal scenario. If the State cannot provide final hearing of appeals within reasonable time, then State is obliged to create a suitable mechanism, by way of legislation or executive fiat to remove this malady. Such positive step shall repose confidence of the common man in the judicial system. Judiciary is known to be the last resort of the people aggrieved by action/inaction of the legislature and executive. People at large look up to judiciary for justice rendered with promptitude. Justice delayed is justice denied is a well known maxim. Even if the appeal of a life convict in custody is allowed at a time when substantial part of sentence is suffered, the justice rendered gets defeated in actuality. The frustration faced by the acquitted, gets accentuated by absence of any compensatory provision in criminal law to indemnify against wrongful confinement and prosecution.
21. Moreover our criminal jurisprudence does not exclude the element of reformation by making it available even to persons convicted of serious offences. The concept of reformatory criminal jurisprudence derives strength from the benign and humane emotion of forgive and forget and the ever present urge of human race to improve itself by making amends and corrective steps to prevent reoccurrence of misdemeanor committed earlier.
22. Emphasizing the theory of reformation and rehabilitation in criminal jurisprudence, Justice V.R. Krishna Iyer in the case of Mohd. Giasuddin v. State of A.P. reported in (1977) 3 SCC 287, has stressed upon the need for humanitarian grounds to be taken into consideration while sentencing. The punishment inflicted on the criminal should be therapeutic, rather than an in terrorem in nature. Following this view the Apex Court in the case of State of Gujarat v. Hon ble High Court of Gujarat reported in (1998) 7 SCC 392 has observed thus:
28. This is the context to consider whether deterrence is the main objective for punishment. Among the conflicting theories for punishment, modern criminologists are highlighting the reformative effect on the punished criminal as the most germane aspect. Jereme Bentham who propounded the theory of deterrence is now considered as the apostle of a conservative old school of thought. The retributive theory of punishment has waned into a relic of primitivity because civilised society has realised that retribution cannot solve the problem of escalating criminal offences. Crime is now considered to be a problem of social hygiene. That modern diagnosis made by criminologists is now causing a sea change to the whole approach towards crime and punishment. The emphasis involved in punishment has now been transposed from retribution to cure and reform so that the original man, who was mentally healthy, can be recreated from the ailing criminal.
31. The theory of reformation through punishment is grounded on the sublime philosophy that every man is born good but circumstances transform him into a criminal. The aphorism that if every saint has a past every sinner has a future is a tested philosophy concerning human life. V.R. Krishna Iyer, J. has taken pains to ornately fresco the reformative profile of the principles of sentencing in Mohd. Giasuddin v. State of A.P.7 The following passage deserves special mention in this context: (SCC pp. 289-90, para 7)
If the psychic perspective and the spiritual insight we have tried to project is valid, the police bully and the prison drill cannot minister to a mind diseased , nor tone down the tension, release the repression, unbend the perversion, each of which shows up as debased deviance, violent vice and behavioural turpitude. It is a truism, often forgotten in the hidden vendetta in human bosoms, that barbarity breeds barbarity, and injury recoils as injury, so that if healing the mentally or morally maimed or malformed man (found guilty) is the goal, awakening the inner being, more than torturing through exterior compulsions, holds out better curative hopes.
32. Reformation should hence be the dominant objective of a punishment and during incarceration, every effort should be made to recreate the good man out of a convicted prisoner. An assurance to him that his hard labour would eventually snowball into a handsome saving for his own rehabilitation would help him to get stripped of the moroseness and desperation in his mind while toiling with the rigours of hard labour during the period of his jail life. Thus, reformation and rehabilitation of a prisoner are of great public policy. Hence they serve a public purpose.
33. A reformative approach is now very much intertwined with a rehabilitative aspect to a convicted prisoner. It is hence a reasonable conclusion from the above discussion that a directive from the court under the authority of law to subject a convicted person (who was sentenced to rigorous imprisonment) to compulsory manual labour gets legal protection under the exemption provided in clause (2) of Article 23 of the Constitution because it serves a public purpose. Similar view has been reiterated in the recent decision of Gopal Singh v. State of Uttrakhand reported in (2013) 7 SCC 545, while summarizing the principles for just and proper sentencing.
23. Viewed from a different angle, another reason for suspension of sentence takes shape. The well known maxim actus curiae neminem gravabit means that the act of the Court shall prejudice none. This maxim is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law (per CRESSWELL J. in Freeman v. Tranah, 12 CB 406, p.415).
24. If this principle is applied to the facts of this case, it comes to light that the reason for delayed disposal of appeal is attributed to the systematical failure of inadequate Judges to deal with the huge backlog and flood of fresh filing. This failure ought not to visit anyone, including a convict in custody, with adverse consequences. True it is that certain fundamental rights of a convict suffer abridgement during custody, but one such fundamental right very much available, is the right to expeditious disposal of his appeal enshrined in Article 21 of the Constitution of India, which mandates right to speedy trial/appeal as a concomitant of right to life. Elucidating the maxim actus curiae neminem gravabit the Apex Court held thus:-
In Anil Rai v. State of Bihar reported in (2001) 7 SCC 318, para 3. any procedure or course of action which does not ensure a reasonable quick adjudication has been termed to be unjust. Such a course is contrary to the maxim 'actus curiae neminem gravabit' that an act of the Court shall prejudice none. In Gaya Prasad v. Pradeep Shrivastava reported in (2001) 2 SCC 604, para 15 on the basis of the maxim, it was observed that the judicial tardiness for which our system has acquired notoriety, causes the lis to creep through the line for long, long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many-many events are bound to take place which might happen in relation to the parties as well as the subject matter of this lis. If the cause of action is to be submerged in such subsequent events on account of malady of the system it shatters the confidence of the litigant, despite the impairment already caused.
25. In view of the above and looking to the past conduct of the petitioner where he has not misused the liberty of temporary suspension and the fact of the appellant having suffered substantial period of sentence ie. about 12 years with little possibility of this appeal being decided finally in the near future, this court is inclined to allow IA. 2388/2014.
26. It is pertinent to observe that the factor of prolonged post-conviction incarceration, bleak possibility of this appeal coming up for hearing in the near future and the appellant not having misused the liberty of temporary bail granted earlier and absence of criminal antecedents, outweigh the gravity of offence and the manner of commission of the offence.
27. This court is alive to the blemish and embarrassment that it may face, if the appellant is ultimately found to be innocent, especially in the absence of any mechanism in the Cr.P.C. for compensating a convict who is found innocent after having suffered substantial period of sentence.
28. Accordingly, I.A.No.2388/2014 is allowed.
29. It is directed that execution of remaining part of jail sentence of the appellant shall remain suspended till final decision of the present appeal on his executing bail bond in the sum of Rs. 1,00,000/- (One Lac Only) two solvent sureties in the like amount to the satisfaction of concerned CJM. Appellant is directed to appear before the Principal Registrar of this Court on 06-04-2015 and on such other dates as may be fixed by the Registry for his appearance during pendency of the present appeal.
30. Record is available.
31. List for final hearing in due course.