Jammu and Kashmir High Court: The Division Bench of Dhiraj Singh Thakur and Sanjay Kumar Gupta, JJ. dismissed this petition as no special circumstances could be made out for suspension of sentence and for grant of bail at this stage.
The present application was filed to seek a stay of operation of the Judgment of conviction passed by the Principal Sessions Judge, Reasi and also sought bail. The application states that the applicants/appellants were falsely prosecuted.
Counsels for the applicants/appellants, Navneet Dubey and Deepali Arora, submitted that the impugned judgment is erroneous and was pronounced in the light of bad evidence; ridden with material contradictions and discrepancies. The appellants have been incarcerated for more than seven years now.
Akhtari Bi v. State of M.P., (2001) 4 SCC 355; Atul Tripathi v. State of U.P., (2014) 9 SCC 177 and Suddu Kumar v. State of Bihar, Criminal Appeal (DB) No. 583 of 2015, date of decision 09-03-2017, were relied upon by the applicants.
The Respondent – State was not represented by anyone.
The prosecution case was that on 21-03-2012 at 2 p.m., information from a reliable source was received by the Police Station, Mahore to the effect that a person namely Nazir Ahmed is lying dead near the house of Haji Khushi Mohd. He was taken in suspicious circumstances for burial. The then SHO Vijay Dhar, Inspector along with Mohd. Sharief, ASI, Gulzar Ahmed and Abdul Hamid, Constables rushed to the spot in a Government vehicle. When they reached the spot, they found the dead body near the house of Haji Khushi Mohd. Thereafter, both the applicants/appellants were arrested. During the investigation, it was found that the deceased was suffering from Tuberculosis and was bed-ridden for many years. During the years, illicit relations between the appellants developed which the deceased knew about. He forbade both of them. They killed him ultimately. Thereafter, the Trial Court convicted both of them and sentenced them to imprisonment for life.
The Court observed that the appellants instead of arguing the main matter stressed on seeking bail. Section 426 of State Code is pari materia to Section 389 CrPC (Suspension of sentence pending the appeal; release of appellant on bail). State of Haryana v. Hasmat, 2004 SCC (Crl.) 1757 was cited by the Court; in which it was held that – “The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the period the accused-respondent was granted parole.” The same analogy was given in the case of Kishori Lal v. Rupa, (2004) 7 SCC 638.
The Court after considering all the matters at hand, held that the appellants are not entitled for bail even though they are in custody for more than five years and from the law cited in Akhtari Bi (if appeal cannot be decided within five years, the court may consider the bail application of appellant; but in present case the instant appeal is of 2018) and Atul Tripathi’s case. The Court further observed that there are many appellants convicted in similar offences and are languishing in jails for more than five years of post-conviction stage. [Abdul Rashid v. State of J&K, 2019 SCC OnLine J&K 590, decided on 08-07-2019]
