Jammu And Kashmir High Court: Terming it “heinous”, the Division Bench comprising of Tashi Rabstan and Javed Iqbal Wani, JJ., refused to grant suspension of sentence and bail to the applicants convicted for murder of a Ajit Singh Dogra, Deputy Adv. General. The Bench stated,
“The accused/applicants have been held guilty and convicted/sentenced for commission of a heinous offence against the then serving Law Officer (Deputy Advocate General of the State) after a full dressed trial for about twelve years by the trial court and upon evaluation of ocular, circumstantial, medical and scientific evidence. The aforesaid position cannot be overlooked by this court.”
The applicants had been convicted and sentenced for the commission of offences punishable under Sections 302, 34, 341 RPC and Section 30 Arms Act. The brief facts of the case were such that on 10-01-2008, a Sub Inspector while on patrol duty in Muthi Area received a verbal report regarding an attack with sharp edged weapons and indiscriminate firing by the convicts on Ajit Singh Dogra (the then Deputy Advocate General) while the said advocate was coming from the Court. The injured advocate had been shifted from JMC Jammu to Apollo Hospital Delhi, where he succumbed to his injuries on 19-01-2008.
The counsel for the applicants while pressing for suspension of sentence and grant of bail in favour of the applicants argued that the judgment of the Trial Court besides being perverse and flawed was based on no evidence connecting the accused persons with the commission of the offences they had been convicted and sentenced. Besides, the counsel sought bail on the premise that the accused persons had been under incarceration for the last more than ten years and that since there was no possibility of adjudication/disposal of their respective appeals in near future therefore, the applicants had become entitled to grant of bail during pendency of their respective appeals.
Findings of the Court
The Bench stated that a plain reading of Section 389 CrPC, makes it is clear that the Section confers discretionary jurisdiction on Appellate court to suspend the execution of sentence during the pendency of the appeal on valid reasons recorded in writing. Law being settled that although the High court is not debarred from suspending the sentence and granting bail to a convict but that power has to be exercised sparingly while objectively assessing the matter and that too in the particular circumstances of each case.
Relying on the case of Preet Pal Singh v. State of UP, 2020 (8) SCC 645, wherein it had been held by the Supreme Court that, “There is a difference between grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension of sentence under Section 389 CrPC and grant of bail, post conviction…in case of post conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial.”; the Bench opined that none of the applications by the applicants had spelt out any cogent ground giving rise to substantial doubt about the validity of the conviction.
Noticeably, perusal of the record demonstrated that applicants/accused persons had been convicted and sentenced by the Trial Court after holding a full dressed trial having found them guilty of the commission of a heinous crime of murder of a practicing advocate, in furtherance of their motive, intention etc etc., upon threadbare consideration, analysis and evaluation of direct, circumstantial, scientific and medical evidence by the Trial Court. Reliance was also placed by the Bench on the decision of Supreme Court in Masood Ali Khan v. State of U.P.,(2009) 3 SCC 492 , wherein it had been held that:
“…it is only in exceptional cases that the benefit of suspension of sentence can be granted…the court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. These aspects have not been considered by the High court, while passing the impugned order.”
Differentiating the decision in Akhtari Bi v. State of M.P, (2001) 4 SCC 355, the Bench expressed that the respective appeals of the applicants had been filed in the year 2020-2021 itself and the period of five years had not yet elapsed as such, the applicants could not be held entitled to the concession of bail on the ground of delay in disposal. Even otherwise assuming the said period of five years was over, yet bail could not be granted to the applicants in view of ratio laid down by the Supreme Court in “Preet Pal Singh’s and “Masood Ali Khan’s” cases.
Accordingly, the instant application was dismissed, rejecting the applicant’s request for suspension of sentence and consequent grant of concession of bail during pendency of their respective appeals.[Vishal Sharma v. U. T. of J&K, 2021 SCC OnLine J&K 390, decided on 02-06-2021]
Kamini Sharma, Editorial Assistant has reported this brief.
Appearance before the Court by:
For the Applicants: Sr. Adv. Sunil Sethi with Adv. Vaibhav Gupta
For UT of J&K: AAG Aseem Sawhney