Jeetu Khatik vs The State Of Chhattisgarh

REPORTABLE 2022 INSC 414

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.603 OF 2022 (ARISING OUT OF SLP (CRL.) No. 875 OF 2022)

JEETU KHATIK ………APPELLANT(S)

VERSUS

STATE OF CHHATTISGARH ………RESPONDENT(S)

O R D E R

Leave granted.

The challenge herein is to the order dated

09.11.2021, whereby the High Court of Chhattisgarh at

Bilaspur has declined the prayer for suspension of

execution of sentence during the pendency of Criminal

Appeal No. 1219 of 2021.

The appeal aforesaid has been filed by the

petitioner-appellant against the judgment and order dated

24.09.2021 passed by the Additional Sessions Judge

(F.T.C.), Manendragarh, District Koriya, Chhattisgarh in

Special Criminal Case No. 15 of 2019.

The substance of the accusation against the appellant

had been that he kidnapped the 9-year-old victim from the

custody of her legal guardian and with intention to outrage

her modesty, used criminal force and with sexual intention,

held her hand so as to forcefully take her to a place away

from road. It had been the prosecution’s case that the 2

victim got released her hand and ran while shouting.

The Trial Court found the appellant guilty and after

recording conviction awarded sentences as follows: -

Conviction Sentence Under Section R.I. for 2 years and 363 of Indian fine of R.500/-, in Penal Code. default of payment of fine additional R.I. for 1 month. Under Section R.I. for 2 years and 354 of Indian fine of Rs.500/-, in Penal Code. default of payment of fine additional R.I. for 1 month. Under Section R.I. for 3 years and 8 of the fine of Rs.500/-, in Protection of default of payment Children from of fine additional Sexual R.I. for 1 month. Offences (POCSO) Act, 2012. (All the sentences were directed to run concurrently)

The submissions on behalf of the appellant before the

Appellate Court seeking suspension of execution of sentence

had been that the Trial Court had overlooked major

contradictions and omissions in the statements of

witnesses; and that he was on bail during the trial but did

not misuse his liberty and even after pronouncement of

judgment, he was granted bail for a limited period. It was

also submitted that the disposal of the appeal was likely

to take some time and, therefore, the appellant may be

released on bail.

The High Court has proceeded to reject the prayer for

suspension of execution of sentence with reference to the 3

deposition of the prosecutrix, who was nine years of age,

with its corroboration from the medical evidence. The High

Court, of course, made no comments on the merits of the

case but then, ordered that the appeal be listed for

hearing in due course.

Learned counsel for the appellant has submitted that

the High Court has taken too strict and stern view of the

matter and has failed to appreciate that the maximum

sentence of imprisonment awarded in this matter is of three

years and all the sentences are to run concurrently; and

the appellant had already served two months of imprisonment

until consideration of the prayer for suspension by the

High Court.

It is submitted that if further execution of sentence

is denied, the appellant is likely to serve out the entire

or substantial part of the sentence of imprisonment and,

thereafter, even if the Appellate Court would be persuaded

to reverse the order of conviction, the deprivation of

liberty for all this time could never be undone.

Learned counsel for the respondent, on the other

hand, has strenuously argued that for grant of suspension

of execution of sentence, special reasons were indeed

required in this case; and, with reference to the decision

of this Court in the case of Preet Pal Singh v. State of

U.P. & Anr.:(2020) 8 SCC 645 (particularly paragraphs 35

and 38 thereof), has argued that for no special and

compelling reason forthcoming in this case, the prayer for 4

suspension of execution of sentence has rightly been

rejected.

Having given anxious consideration to the rival

submissions and having examined the material placed on

record with reference to the law applicable, we are unable

to agree with the submissions made on behalf of the

respondent that, in this matter, where the maximum sentence

of imprisonment is of three years, the appellant ought to

be denied the concession of bail during the pendency of

appeal.

The observations in paragraphs 35 and 38 of the

decision in Preet Pal Singh (supra), as sought to be relied

upon by the learned counsel for the respondent, read as

under: -

“35. 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 the earlier case, there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P.(2018) 3 SCC 22. However, 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. Rather, the court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There 5

should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC.

*** *** ***

38. In considering an application for suspension of sentence, the appellate court is only to examine if there is such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. Where there is evidence that has been considered by the trial court, it is not open to a court considering application under Section 389 to reassess and/or re-analyse the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail.”

Significant aspect of the matter is that the

observations aforesaid have been made by the Court in

relation to a case where the accused was convicted, inter

alia, of the offence under Section 304-B IPC and was

awarded varying sentences, including that of life

imprisonment. Obviously, the observations aforesaid have to

be read with reference to the factual background and

context.

The relevant aspects of the present case are that the

maximum sentence awarded is of three years’ imprisonment.

As regards the requirement of special or compelling

reasons, noteworthy it is that one of the grounds urged

before the High Court on behalf of the appellant was that

looking to the term of sentence awarded, when the disposal

of the appeal is likely to take time, he may be ordered to

be released on bail.

6

The High Court, while referring to the basis of

conviction of the appellant, did not make any comment as

regards the fact that the maximum sentence of imprisonment

is of three years and that the hearing of appeal is likely

to take time. On the contrary, in the concluding part of

the order impugned, the High Court ordered that the appeal

be listed for hearing ‘in due course’.

Obviously, the High Court has not found the appeal

worth assigning a priority for hearing. That being the

position, if the appeal is to be heard only on its turn,

the likely scenario is that it would not be taken up for

hearing immediately by the High Court. If the appeal

remains pending in due course and the appellant by that

time serves out the sentence of imprisonment, and then, if

there be any possibility of his acquittal or any

modification of the conviction/sentence, the injury

suffered by him would be practically irreparable.

In our view, these aspects, in the given set of facts

and circumstances of the present case, are themselves of

the compelling reasons for suspension of execution of

sentence during the pendency of appeal. There does not

appear any other adverse reason to deny the relief to the

appellant, like any criminal antecedents before the

incident in question or any blame in the jail conduct.

In the overall circumstances, we are inclined to

order suspension of execution of the remaining part of the

sentence awarded to the appellant.

7

Accordingly, the appeal is allowed; execution of the

remaining part of the sentence awarded to the appellant is

ordered to be suspended during the pendency of appeal in

the High Court; and he is ordered to be released on bail on

such terms and conditions as may be imposed by the Trial

Court.

……………………………………………J. (DINESH MAHESHWARI)

……………………………………………J. (ANIRUDDHA BOSE)

New Delhi;

April 11, 2022.

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ITEM NO.26 COURT NO.14 SECTION II-C

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition for Special Leave to Appeal (Crl.) No. 875/2022

(Arising out of impugned final judgment and order dated 09-11-2021 in IA No. 01/2021 passed by the High Court of Chhatisgarh at Bilaspur)

JEETU KHATIK Petitioner(s) VERSUS STATE OF CHHATTISGARH Respondent(s)

(IA No. 14895/2022 - EXEMPTION FROM FILING O.T.)

Date : 11-04-2022 These matters were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE ANIRUDDHA BOSE

For Petitioner(s) Dr. Sangeeta Verma, Adv.

Mr. Sameer Shrivastava, AOR

For Respondent(s) Ms. Asmita Singh, Adv.

Mr. Gautam Narayan, AOR

UPON hearing the counsel the Court made the following O R D E R

Leave granted.

The appeal is allowed in term of the Signed Reportable Order.

Execution of the remaining part of the sentence awarded to the

appellant is ordered to be suspended during the pendency of appeal

in the High Court; and he is ordered to be released on bail on such

terms and conditions as may be imposed by the Trial Court.

(SHRADDHA MISHRA) (RANJANA SHAILEY) SENIOR PERSONAL ASSISTANT COURT MASTER (NSH) (Signed Reportable Order is placed on the file)