Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2034 OF 2008
(Arising out of SLP (Crl) No. 6647 of 2008)
Shiv Kumar …Appellant
Versus
State of N.C.T. of Delhi …Respondent
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to order passed by a learned Single Judge
of the Delhi High Court rejecting the application filed by the appellant for
suspension of sentence in terms of Section 389 of the Code of Criminal
procedure, 1973 (in short the ‘Code’). The stand of the appellant is that he
had suffered more than 1 year and eight months’ custody and therefore the
sentence should be suspended. The High Court noted that earlier also
asimilar prayer was made which was rejected by order dated 18.9.2007.
3. Learned counsel for the appellant submitted that he was only a peon
who had no authority to issue any domicile certificate. Therefore the
conviction should not have been recorded. In any event the sentences
imposed for offence punishable under Sections 7 & 13 (2) of the Prevention
of Corruption Act, 1988 (in short the ‘Act’) are harsh. In such a case
minimum sentence is six months but in the instant case three years
imprisonment has been awarded.
4. Learned counsel for the State on the other hand supported the
judgment.
5. Several decisions were cited at the bar.
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6. In Bhagwan Rama Shinde Gosai v. State of Gujarat [1999(4) SCC
421] it was inter alia held as follows:
“3 . When a convicted person is sentenced to a fixed period of
sentence and when he files an appeal under any statutory right,
suspension of sentence can be considered by the appellate court
liberally unless there are exceptional circumstances. Of course
if there is any statutory restriction against suspension of
sentence it is a different matter. Similarly, when the sentence is
life imprisonment the consideration for suspension of sentence
could be of a different approach. But if for any reason the
sentence of a limited duration cannot be suspended every
endeavour should be made to dispose of the appeal on merits
more so when a motion for expeditious hearing of the appeal is
made in such cases. Otherwise the very valuable right of appeal
would be an exercise in futility by efflux of time. When the
appellate court finds that due to practical reasons such appeals
cannot be disposed of expeditiously the appellate court must
bestow special concern in the matter of suspending the
sentence. So as to make the appeal right, meaningful and
effective. Of course appellate courts can impose similar
conditions when bail is granted.”
7. In Vijay Kumar v. Narendra [2002(9) SCC 364] it was inter alia
observed as follows:
“On perusal of the record and on consideration of the
submissions made by the learned counsel appearing for the
parties, we are of the view that in the context of the facts and
circumstances of the case the High Court was in error in
passing the order releasing the respondents on bail. The High
Court has neither given any reason nor has indicated any
exceptional circumstance for granting bail to the respondents.
In the above circumstances, it is difficult for us to even surmise
the circumstance which prompted the learned Single Judge to
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consider the accused persons to be entitled to the discretionary
relief of bail pending the appeal. The principle is well settled
that in considering the prayer for bail in a case involving a
serious offence like murder punishable under Section 302 IPC,
the court should consider the relevant factors like the nature of
the 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. Our attention has not been drawn to any
material which would show that the learned Single Judge took
into consideration the relevant factors while passing the bail
order. We refrain ourselves from making any observation
touching on merits of the case lest it may prejudice any of the
parties. Suffice it to state that we do not consider this a fit case
for grant of bail to the respondents during pendency of the
appeal filed by them.”
8. Of course both these cases related to offence punishable under
Section 302 IPC.
9. This court has observed in several cases that where the accused is
convicted for offence punishable under the Act, it would not be prudent and
desirable to give protection under Section 389 of the ‘Code’.
10. However taking into account the peculiar circumstances of the case
we request the High Court to dispose of the appeal as early as practicable.
To avoid unnecessary delay, let the appellant appear before the High Court
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on the 6 of January, 2009. We request the learned Chief Justice of the
High Court to allot the case to an appropriate Bench. Needless to say the
appeal shall be disposed of, as noted above, as early as practicable. In case
the appeal is not disposed of by the end of March, 2009, it shall be open to
the appellant to move to the High Court afresh for bail and if such occasion
arises needless to say the application shall be dealt with in accordance with
law.
11. The appeal is disposed of accordingly.
…………..……………………….J.
(Dr. ARIJIT PASAYAT)
……………………..…………….J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi,
December 15, 2008
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