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Saturday, August 9, 2014

Grant of Bail at Appeal Stage - High court granted bail - Apex court held that both the Criminal Appeal and Criminal Revision filed by both the parties are pending before the High Court which means that the convictions of the respondents are not confirmed by the appellate court. Secondly, it is an admitted fact that the respondents had been granted bail earlier and they did not misuse the liberty. Also, the respondents had conceded to the occurrence of the incident though with a different version. =CRIMINAL APPEAL NO. 1664 OF 2014 (ARISING OUT OF SLP(Crl.) NO. 2930 OF 2013) SUNIL KUMAR APPELLANT Vs. VIPIN KUMAR AND ORS. RESPONDENTS = 2014 Aug. Part – http://judis.nic.in/supremecourt/filename=41815

      Grant of Bail at Appeal Stage - High court granted bail - Apex court held that both the Criminal Appeal and Criminal Revision filed by  both the parties  are  pending  before  the  High  Court  which  means  that  the convictions of the respondents are not confirmed  by  the  appellate  court. Secondly, it is an admitted fact that the respondents had been granted  bail
earlier and they did not misuse  the  liberty.  Also,  the  respondents  had conceded to the occurrence of the incident though with a different  version.    =

389. Suspension of sentence pending the appeal;  release  of  appellant  on
bail.

(1) Pending any appeal by a convicted person, the Appellate Court  may,  for
reasons to be recorded by it in writing, order that  the  execution  of  the
sentence or order appealed against be suspended  and,  also,  if  he  is  in
confinement, that he be released on bail, or on his own bond.”


15.   The learned senior counsel has also relied upon the decision  of  this
Court in the case of Vijay Kumar v. Narendra  &  Ors.[1]  and  the  case  of
Kishori Lal v. Rupa[2] wherein this Court has set aside bail granted by  the
High Court under Section 389 on the ground that the  decision  of  the  High
Courts were not based on sound legal reasoning.

16.   On the other hand, while seeking bail for the respondents  before  the
High  Court,  the  learned  senior  counsel  on  behalf  of  the   convicted
respondents contended that the convicted respondents were  on  bail  earlier
but they did not misuse the liberty.

17.   It  was  also  contended  by  the  learned  senior  counsel  that  the
respondents did not dispute the  date,  time  and  place  of  the  incident.
However, there was a different version of the incident according to them.

18.   We have heard the rival legal contentions raised by both the  parties.
We are  of  the  opinion  that  the  High  Court  has  rightly  applied  its
discretionary power under Section 389 of CrPC to enlarge the respondents  on
bail.
Firstly, both the Criminal Appeal and Criminal Revision filed by  both
the parties  are  pending  before  the  High  Court  which  means  that  the
convictions of the respondents are not confirmed  by  the  appellate  court.
Secondly, it is an admitted fact that the respondents had been granted  bail
earlier and they did not misuse  the  liberty.  Also,  the  respondents  had
conceded to the occurrence of the incident though with a different  version.



19.     We  are  of  the  opinion  that  the  High  Court  has  taken   into
consideration all the relevant facts including the fact that the  chance  of
the appeal being heard in the near future is extremely  remote,  hence,  the
High Court has released the respondents on bail on the basis of sound  legal
reasoning. We do not wish to interfere with the decision of the  High  Court
at this stage. The appeal is dismissed accordingly.

2014 Aug. Part – http://judis.nic.in/supremecourt/filename=41815


                                                    NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                      CRIMINAL  APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO. 1664 OF 2014
                 (ARISING OUT OF SLP(Crl.) NO. 2930 OF 2013)


SUNIL KUMAR                           APPELLANT

                                     Vs.

VIPIN KUMAR AND ORS.                  RESPONDENTS




                               J U D G M E N T



V.Gopala Gowda, J.

Leave granted.

2.    This appeal is filed by the appellant questioning the  correctness  of
the judgment and final Order dated 18.02.2013 passed by the  High  Court  of
Judicature at Allahabad in Criminal Appeal No. 2684 of 2009  urging  various
facts and legal contentions in justification of his claim.

3.    Necessary relevant facts are stated hereunder to appreciate  the  case
of the appellant and also to find out whether the appellant is entitled  for
the relief as prayed for in this appeal.

4.    It is the case of the prosecution that the appellant, who was  at  the
time of the incident, studying in an engineering college at Noida,  happened
to be at Shikarpur crossing within the  police  station  Kotwali  Nagar.  At
about 10 a.m. on 27th June 2003, it was then that the  convicted  respondent
nos. 2 and 3 dragged him into their house and began to assault him.  Hearing
the cries, the appellant’s father Shri Khem Chand and  brother  Shri  Rajeev
would arrive at the scene to his rescue. In the scuffle which  ensued,  both
the father and the brother of the appellant got injured  which  led  to  the
consequential death of the appellant’s brother Rajeev.  After  the  FIR  and
follow- up investigation by police, charge  sheets  were  submitted  by  the
police subjecting the convicted respondent nos.  2  and  3  to  trial  under
Section 302 read with Section 34, Section 307 read with Section  34  of  IPC
and for offences under Section 4 read with Section 25 of the Arms Act.
5.    The Additional District and Sessions Judge, Bulandshahr on  16.4.2009,
convicted and sentenced the respondent nos. 2 and  3  to  various  terms  of
imprisonment in Sessions trial Nos. 985, 987 and 988 of 2003.

6.    In the counter version of the matter, the convicted respondent nos.  2
and 3, while admitting the date, time and place  of  the  incident,  claimed
that the appellant and his deceased brother, Rajeev had  barged  into  their
house and attempted to sexually abuse a lady  in  their  house  namely  Smt.
Kajal. This very criminal  behaviour  of  the  appellant  and  his  deceased
brother gave rise to scuffle between  the  parties  which  resulted  in  the
death of the brother of the appellant.

7.    On the basis of the complaint of the respondents,  the  appellant  was
put to trial under different charges in cross  Sessions  trial  No.  524  of
2005. The appellant was however acquitted  from  offences  punishable  under
Section 376/511, 323 and 324 of IPC.

8.    The convicted respondent nos. 2 and 3 filed Criminal Appeal  No.  2684
of 2009 against their conviction by the  Additional  District  and  Sessions
Judge vide Order dated 16.4.2009. A Criminal Revision No. 1744 of  2009  was
also filed by Smt.  Kajal  against  the  acquittal  of  the  appellant  from
charges under Section 376  I.P.C.  The  Criminal  Appeal  and  the  Criminal
Revision are still pending for disposal before the High Court.

9.    In the  meanwhile,  the  first  application  for  bail  moved  by  the
convicted respondent nos. 2 and 3 in the above Criminal Appeal No.  2684  of
2009 was rejected by the Division Bench of the High Court on 27.7.2011.

10.   However, the subsequent application of the convicted  Respondent  nos.
2 and 3 in the same Criminal Appeal No. 2684 of  2009  was  allowed  by  the
High  Court  vide  Order  dated  18.2.2013   requiring   them   to   furnish
individually, a personal bond of Rs.1 lakh with two sureties  each,  to  the
satisfaction of the trial court.
11.   It is against this enlargement of the respondent nos. 2 and 3 on  bail
by the High Court, that the appellant has appealed before us.

12.   It has been contended by  the  learned  senior  counsel  appearing  on
behalf of the State that the High  Court  erred  in  granting  bail  to  the
respondents  in  exercise  of  power  under  Section  389  of  CrPC  without
assigning any legal and acceptable reason being oblivious to the nature  and
gravity of the offence, the evidence being led thereof  and  the  punishment
awarded by the trial court.

13.   It was further contended  by  the  learned  senior  counsel  that  the
deceased and the father of the appellant were assaulted with repeated  blows
on chest, head and shoulder. This is to say that the deceased was  assaulted
mercilessly by the  respondents.  Therefore,  they  do  not  deserve  to  be
enlarged on bail by the High Court.

14.   The learned senior counsel further  cited  Section  389  of  the  CrPC
which holds as under to contend that the High Court is  required  to  record
reasons in writing as to why an accused is enlarged on  bail  under  Section
389.
389. Suspension of sentence pending the appeal;  release  of  appellant  on
bail.

(1) Pending any appeal by a convicted person, the Appellate Court  may,  for
reasons to be recorded by it in writing, order that  the  execution  of  the
sentence or order appealed against be suspended  and,  also,  if  he  is  in
confinement, that he be released on bail, or on his own bond.”


15.   The learned senior counsel has also relied upon the decision  of  this
Court in the case of Vijay Kumar v. Narendra  &  Ors.[1]  and  the  case  of
Kishori Lal v. Rupa[2] wherein this Court has set aside bail granted by  the
High Court under Section 389 on the ground that the  decision  of  the  High
Courts were not based on sound legal reasoning.

16.   On the other hand, while seeking bail for the respondents  before  the
High  Court,  the  learned  senior  counsel  on  behalf  of  the   convicted
respondents contended that the convicted respondents were  on  bail  earlier
but they did not misuse the liberty.

17.   It  was  also  contended  by  the  learned  senior  counsel  that  the
respondents did not dispute the  date,  time  and  place  of  the  incident.
However, there was a different version of the incident according to them.

18.   We have heard the rival legal contentions raised by both the  parties.
We are  of  the  opinion  that  the  High  Court  has  rightly  applied  its
discretionary power under Section 389 of CrPC to enlarge the respondents  on
bail. Firstly, both the Criminal Appeal and Criminal Revision filed by  both
the parties  are  pending  before  the  High  Court  which  means  that  the
convictions of the respondents are not confirmed  by  the  appellate  court.
Secondly, it is an admitted fact that the respondents had been granted  bail
earlier and they did not misuse  the  liberty.  Also,  the  respondents  had
conceded to the occurrence of the incident though with a different  version.



19.     We  are  of  the  opinion  that  the  High  Court  has  taken   into
consideration all the relevant facts including the fact that the  chance  of
the appeal being heard in the near future is extremely  remote,  hence,  the
High Court has released the respondents on bail on the basis of sound  legal
reasoning. We do not wish to interfere with the decision of the  High  Court
at this stage. The appeal is dismissed accordingly.



……………………………………………………J.  [DIPAK MISRA]



……………………………………………………J.       [V. GOPALA GOWDA]


New Delhi,                                         August 7, 2014
-----------------------
[1]    (2002) 9 SCC 364
[2]    (2004) 7 SCC 638

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