Amit Garg vs. State (Nct Of Delhi)

Neutral Citation Number is 2022/DHC/004683

$~41 to 44

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Order pronounced on 11.10.2022


+ CRL.A. 417/2021, CRL.M.(BAIL) 1598/2021 & CRL.M.A.
3544/2022
AMIT GARG ..... Appellant
Through: Dr. S. S. Hooda & Mr. Aayushman
Aeron, Advs.
versus

STATE (NCT OF DELHI) ..... Respondent
Through: Mr. Raj Kumar, APP for State.


+ CRL.A. 93/2022 & CRL.M.(BAIL) 265/2022
AAINA ROY ..... Appellant
Through: Mr. Joginder Tuli, Ms. Joshini Tuli &
Ms. Hemlata, Advs.
versus

STATE (NCT OF DELHI) ..... Respondent
Through: Mr. Raj Kumar, APP for State.

+ CRL.A. 106/2022 & CRL.M.(BAIL) 299/2022

NEERAJ CHAUHAN ..... Appellant
Through: Mr.K.K. Manan, Sr. Adv. with Mr.
Amit Prasad, Mr. Akshay Chowdhary
& Mr. Ayodhya Prasad, Advs.
versus

STATE OF NCT OF DELHI ..... Respondent
Signature Not Verified
Signed By:HARIOM
Crl.Appeal 417/2021 & conn. Page 1 of 12

Signing Date:05.11.2022
13:04:25

Neutral Citation Number is 2022/DHC/004683

Through: Mr. Raj Kumar, APP for State.


+ CRL.A. 96/2022, CRL.M.(BAIL) 278/2022, CRL.M.(BAIL)
381/2022 & CRL.M.A. 6173/2022
SHINY MAC KHAN ..... Appellant
Through: Miss Khateeja, Adv.

versus

STATE OF NCT OF DELHI ..... Respondent
Through: Mr. Ritesh Kr. Bahri, APP for State.

CORAM:
HON'BLE MR. JUSTICE TALWANT SINGH

Talwant Singh, J.:
Crl.M.(Bail) 1598/2021 in Crl.Appeal no 417/2021
Crl.M.(Bail) 265/2022 in Crl.Appeal no 93/2022
Crl.M.(Bail) 299/2021 in Crl.Appeal no 106/2022
Crl.M.(Bail) 278/2022 in Crl.Appeal no 96/2022

1. All these applications for suspension of sentence have been moved in
case FIR No. 81/2013, lodged at PS Basant Vihar, Dehradun registered
under Sections 385/389/504/109/120B IPC and Section 67A of the
Information and Technology Act. The said case was instituted on
28.01.2014, which was transferred to Delhi on 17.03.2020 and the final
judgment in the said case was passed on 04.12.2021.
1.1 By the said judgment, the present applicants being Aaina Roy, Neeraj
Chauhan, Amit Garg and Shiny Mac Khan were convicted for the offences
punishable U/s 389/385/504 read with Section 120B IPC and under Section
67A of IT Act r/w Section 120B IPC. Two of the accused namely Sanjay
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Signing Date:05.11.2022
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Neutral Citation Number is 2022/DHC/004683

Banerjee and Suman Singh Waldia were acquitted. The sentences of the
applicants were as under:-
“ I) Aaina Roy
i) Under offence u/s IPC read with section 120B IPC
the convict is sentenced to RI for a period of two years and
fine of a sum Rs.5000/-. In default of payment of fine, the
convict shall undergo SI for two months.
ii) Under offence u/s 389 read with section 120B IPC
the convict is sentenced to RI for a period of seven years
and f fine of Rs.50,000/- out of which 45,000/- will be paid
as compensation to the victim and Rs.5000/- shall be paid to
the State as litigation expenses. In default of payment of fine
the convict shall undergo SI for one year.
iii) Under offence u/s 385 IPC read with section 120B
IPC the convict is sentenced to RI for a period of three
years and six months and a fine of Rs.50,000/- out of which
45,000/- will be paid as compensation to the victim. In
default of payment of fine the convict shall undergo SI for
six months.
iv) Under offence u/s 67-A IT Act read with section
120B IPC the convict is sentenced to RI for a period of three
year and six months a fine of Rs.50,000/- out of which
45,000/- will be paid as compensation to the victim. In
default of payment of fine the convict shall undergo SI for
six months.


II) Neeraj Chauhan

i) Under offence u/s 504 IPC read with Section 120B
IPC the convict is sentenced to RI for a period of two years
and fine of a sum of Rs.5000/-. In default of payment of fine,
the convict shall undergo SI for two months.
ii) Under offence u/s 67-A IT Act read with section
120B IPC the convict is sentenced to RI for a period of
seven years and a fine of Rs.50,000/- out of which 45,000/-
will be paid as compensation to the victim and Rs.5000/-
shall be paid to the State as litigation expenses. In default of
payment of fine the convict shall undergo SI for one year.
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Neutral Citation Number is 2022/DHC/004683

iii) Under offence u/s 385 IPC read with 120B IPC the
convict sentenced to RI for a period of two years with a fine
of Rs.5000/-. In default of payment of fine the convict shall
undergo SI for two months.
iv) Under offence u/s 67-IT Act read with section 120B
IPC the convict is sentenced to RI for a period of three
years and six months and a fine of Rs.50,000/- out of which
45,000/- will be paid as compensation to the victim. In
default of payment of fine convict shall undergo SI for six
months.

III Saini Mac Khan

i) Under offence u/s 504 IPC read with Section 120B
IPC the convict is sentenced to RI for a period of two years
and fine of a sum of Rs.5000/-. In default of payment of fine,
the convict shall undergo SI for two moths.
ii) Under offence u/s 389 IPC read with Section 120B
IPC the convict is sentenced to RI for a period of seven
years and a fine of Rs.50,000/- out of which 45,000/- will be
paid as compensation to the victim and Rs.5000/- shall be
paid to the State as litigation expenses. In default of
payment of fine the convict shall undergo SI for one year.
iii) under offence u/s 385 IPC read with Section 120B
IPC the convict is sentenced to RI for a period of two years
with a fine of Rs.5000/-. In default of payment of fine the
convict shall undergo SI for one year.
iv) Under offence u/s 67-A IT Act read with section
120B IPC the convict is sentenced to RI for a period of three
years and six months and a fine of Rs.50,000/- out of which
45,000/- will be paid as compensation to the victim. In
default of payment of fine the convict shall undergo SI for
six months.

IV) Amit Garg
i) Under offence u/s 504 IPC read with Section 120B
IPC the convict is sentenced to RI for a period of two years
and fine of a sum of Rs.5000/-. In default of payment of fine,
the convict shall undergo SI for two moths.
Signature Not Verified
Signed By:HARIOM
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Neutral Citation Number is 2022/DHC/004683

ii) Under offence u/s 389 IPC read with Section 120B
IPC the convict is sentenced to RI for a period of seven
years and a fine of Rs.50,000/- out of which 45,000/- will be
paid as compensation to the victim and Rs.5000/- shall be
paid to the State as litigation expenses. In default of
payment of fine the convict shall undergo SI for one year.
iii) under offence u/s 385 IPC read with Section 120B
IPC the convict is sentenced to RI for a period of two years
with a fine of Rs.5000/-. In default of payment of fine the
convict shall undergo SI for one year.
iv) Under offence u/s 67-A IT Act read with section
120B IPC the convict is sentenced to RI for a period of three
years and six months and a fine of Rs.50,000/- out of which
45,000/- will be paid as compensation to the victim. In
default of payment of fine the convict shall undergo SI for
six months”.

2. Notices were issued on the above four applications. Initially N.C.T of
Delhi was defending these matters; however, later on it transpired that it has
to be the State of Uttarakhand, which has to defend the present cases; hence,
notices were issued to the State of Uttarakhand and Mr. Piyush Hans,
Advocate appeared on behalf of the State of Uttarakhand. Learned Advocate
responded to the applications for suspension of sentence by filing a short
synopsis.
3. I have heard learned counsel appearing for the parties.
3.1. In Crl.M.(Bail) 265/2022 in Crl.Appeal No. 93/2022 tiled as ‘ Aaina
Roy vs. State (NCT of Delhi)’ it has been argued that out of total awarded
sentence of RI for 7 years, she has already undergone about 2 years and 11
months of custody. She is stated to be the complainant in case FIR No.
358/2013 under Sections 376(c)(b)/506/109 IPC on 22.11.2013 but the
accused, who is complainant in the present case, was acquitted . The
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Neutral Citation Number is 2022/DHC/004683

appellant/applicant is stated to be a woman and she has prayed for
suspension of sentence and grant of bail, since the appeal is not likely to be
heard soon.
3.2 In grounds of suspension of sentence, it is submitted that she is aged
about 38 years; she has clean antecedents; she was on regular bail since the
year 2016 till her conviction on 04.12.2021 and she has never misused the
liberty granted to her. It has been further submitted that offence alleged to
have been committed by her has not been proved; rather it was the appellant,
who was sexually exploited by the complainant. She has lodged FIR No.
358/2013 under Section 376 IPC at PS Kotwali and the present complainant
was arrested and charge-sheeted under Section 376 (B)/ (C)/109/506 IPC.
The challenge to acquittal of the present complainant in the case registered
at the instance of the appellant is pending. Under these circumstances, the
suspension of sentence has been prayed.
3.3 In Crl.M.B. 299/2022 in Crl. Appeal No. 106/2022 titled ‘ Neeraj
Chauhan vs. State’ it has been submitted that there is no direct evidence
against the appellant of having committed the offences, for which he is
convicted. In grounds seeking suspension of sentence, it has been submitted
that the appellant has been convicted based on perverse appreciation of
facts; the appellant does not have any criminal antecedents, the appellant
has a wife and 2 minor children and an aged mother to support; the wife of
the appellant is bed-ridden; the appellant has already undergone about 2
years and 6 months of incarceration; even being enlarged on bail during
trial, the appellant/applicant has diligently attended the Trial Court
proceedings; the appellant has not jumped bail or influenced any witness,
when he was on bail during trial; the appellant has deep roots in the
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society; the conviction of the appellant is based on conjectures and surmises
and the appellant undertook to abide by all the conditions to be laid down
by the Hon’ble Court.
3.4 During arguments, Mr. K.K. Manan, learned senior counsel appearing
for the applicant, has argued that the present applicant has been awarded
punishment of less than 10 years Rigorous Imprisonment; the applicant has
maintained good conduct throughout; which is a relevant factor during the
period of interim suspension; he has never misused the liberty; the cases are
piling up in High Court and there is no likelihood of regular hearing of the
appeal in the near future.
3.5 In Crl.M (Bail) 1598/2021 in Crl. Appeal No. 417/2021 titled as ‘ Amit
Garg vs. State (NCT of Delhi) ’ it has been submitted in application of
suspension of sentence that conviction of the appellant is based on
circumstantial evidence of him being present with the co-accused Neeraj
Chauhan in a hotel on 20.10.2013 and being in contact with him and other
co-accused Aaina Roy and providing office space to the TV channel named
‘Channel one’. In the grounds, on which suspension of sentence has been
sought, it is mentioned that the appellant has been convicted based on
perverse appreciation of facts and law; the appellant has no criminal
antecedents; he has already spent about 14 months in custody in
Uttarakhand; even when the applicant was on bail, he has diligently attended
the Trial Court proceedings and he did not jump the bail; the appellant has
deep roots in the society and has two young children to look after and the
judgment against him is based on conjectures and surmises; the appellant
undertook to abide by all the conditions to be put up while allowing his
application for suspension of sentence.
Signature Not Verified
Signed By:HARIOM
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Neutral Citation Number is 2022/DHC/004683

3.6 During arguments, it has been argued on behalf of this applicant that
out of the total punishment of RI for 7 years, he has already undergone 1
year 11 months incarceration; he has not been named in the FIR; there is no
recovery made from him, his only fault is that he has given the premises on
rent to co-accused Neeraj Chauhan, who tried to get the property /premises
for use of co-accused Aaina Roy; his role is stated to be there only in alleged
conspiracy, the conviction is based only on the presumption that since the
petitioner was communicating with the main accused, so, he was also
involved in the present case.
3.7 In Crl.M(Bail) 278/2022 in Crl.Appeal No. 96/2022 titled as ‘ Shiny
Mac Khan vs. State’ in the application for suspension of sentence, it has
been mentioned that the appellant is innocent person and he has clear
antecedents; he has undergone sentence for more than 2 years and 10 days;
no purpose would be served by keeping the appellant behind bars and he has
a good case on merits and has every hope of success and he has undertaken
to abide by the conditions to be imposed by this Court.
3.8 During arguments, it has been submitted that out of total punishment
of RI years for 7 years, he has already undergone 2 years, 6 months of
incarceration; he has not been named in the FIR; the complainant had never
met the applicant; no role has been assigned by the complainant to the
applicant; there is no transaction of the applicant with the complainant; he is
not involved with any of the accused except Aaina Roy, who is an associate;
he was only a facilitator in the matter between the co-accused Aaina Roy
and complainant, and his role surfaced only after 15 days from the date of
the incident; although all the allegations are of a sting operation but
certificate under Section 65B of the Indian Evidence Act is not there. He had
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only made some phone calls to Aaina Roy and to an associate professor and
he is not a part of any extortion racket.
4 On behalf of the State of Uttarakhand, it has been submitted that
appellant/applicants are not entitled to be released on bail after suspension of
sentence only on the ground that the appeals will take some time to be heard
and there is no misuse of the liberty by the accused during trial when they
were on bail and in this regard reliance has been placed on a judgment of
Hon’ble Supreme Court titled as Sidhartha Vashisht @ Manu Sharma vs.
State (NCT of Delhi) (2008) 5 SCC 230.
4.1 It has been further submitted that the applicants have to make out a
case of patent infirmity to succeed in their applications for suspension of
sentence and reliance in this regard has been placed upon judgment of the
Hon’ble Supreme Court in the matter of Preet Pal Singh vs. State of Uttar
Pradesh & Anr.’ (2020) Vol. 8, SCC 645. It has been further submitted that
applicants have not completed half of the sentence awarded to them and
moreover, they have not deposited the fine imposed on them; the judgment
in question cannot be discussed threadbare at this stage and apparently there
is no infirmity or illegality pointed out by the present applicants in the said
judgment, which entitles them to grant of suspension of sentence and they
being released on bail.
5. After hearing both the sides it is noticed that the sentences awarded to
the applicants is 7 years RI alongwith fine, apart from other minor sentences
and they have not completed half of the said sentences. The appeals were
filed by them, on the following dates:
“(i) Crl.App. 417/2021 Amit Garg vs. State on 22.12.2021;
(ii) Crl.App. 106/2022 Neeraj Chauhan vs. State on 16.03.2022;
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(iii) Crl. App. 93/2022 Aaina Roy vs. State on 04.03.2022; and
(iv) Crl.Appl. 96/2022 Shiny Mac Khan vs. State on 08.03.2022.”
5.1 Not even a period of one year has passed since the appeals have been
filed, so it cannot be said that the appeals are pending for a long time before
this Court and this is not a ground for grant of suspension of sentences to the
convicted persons.
5.2 The applicants have placed reliance on the judgment of the Hon’ble
Supreme Court in the matter of Bhagwan Rama Shinde Gosai & Ors. vs.
State of Gujarat (1999) 4 SCC 421, where it was held that suspension of
sentences is to be considered by the Court liberally where the sentence is of
limited duration and endeavour should be made to dispose of the appeal on
merits.
5.3 On the other hand, the respondents have placed reliance in Sidhartha
Vs. State (supra), wherein it was held that while considering the application
for suspension of sentence, seriousness of the offence; nature of accusation;
the gravity of the offence and the normal practice is not to suspend the
sentence. The fact that accused was on bail during trial and he has not
misused the liberty does not per-se warrant suspension of sentence.
Moreover, where the appeal is likely to be heard in measurable distance of
time, the suspension of sentence is not to be allowed.
5.4 As noted above, in the present case, the appeals were filed during the
period from December, 2021 to March, 2022 and not even one year has
passed from the dates when these appeals were filed. The applicants have
been convicted for a serious offence and they had conspired with each other
to commit the said crime, so it is not a fit case for grant of suspension of
sentence at this stage.
Signature Not Verified
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Neutral Citation Number is 2022/DHC/004683

5.5 In Preet pal Singh vs. State (supra) , it was held that the discretion for
grant of suspension of sentence is to be exercised judicially and not in a
casual manner. It has been also observed that there is a difference between
grant of bail under Section 439 Cr.P.C. in case of pre-trial arrest and
suspension of sentence under Section 389 Cr.P.C. and grant of bail post
conviction. In the trial, there may be presumption of innocence, however, in
case of post-conviction bail, there is finding of guilt and question of
presumption of innocence does not arise.
5.6 In Kanaka Rekha Naik vs. Manoj Kumar Pradhan & Anr. (2011) 4
SCC 596, it was observed that the Appellate Court has taken into
consideration the serious nature of crime and findings recorded by the
learned Trial Court and whether the applicant was involved in more than 1
case, for deciding as to whether it was a fit case for suspension of sentence
and power under Section 389 Cr.P.C. is not to be exercised as a matter of
course. It is also noted that it is not necessary to recapitulate the findings
recorded by the learned Trial Court and it is only to be noted that there is a
finding that the applicant was involved in commission of the offence and
same is under challenge in the criminal appeal.
5.7 Keeping in view the above judgments, this Court cannot comment on
the merits of the case; the family circumstances of the applicants cannot be
the sole only ground for suspension of sentence, especially where the
appeals have been filed only recently and the applicants are yet to complete
even half of the sentence awarded to them.
6. Keeping the above facts in view, I am not inclined to suspend the
sentence awarded to the present four applicants at this stage.
7. However, it is made clear that the dismissal of their applications for
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Neutral Citation Number is 2022/DHC/004683

suspension of sentence at this stage will not come in their way, if and when
they approach this court for suspension of sentence again at an appropriate
stage.

TALWANT SINGH, J
OCTOBER 11, 2022/ nk
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Signature Not Verified
Signed By:HARIOM
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Signing Date:05.11.2022
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