Kanaka Rekha Naik vs Manoj Kumar Pradhan & Anr

KANAKA REKHA NAIK ... APPELLANT

VERSUS

MANOJ KUMAR PRADHAN & ANR. ... RESPONDENTS

JUDGMENT

B. SUDERSHAN REDDY, J.

1. Leave granted.

2. This appeal impugns the order dated 7th July, 2010 passed

by the High Court of Orissa in Miscellaneous Case No. 891

of 2010 in Criminal Appeal No. 312 of 2010, whereby the

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High Court has granted bail to the respondent Manoj

Kumar Pradhan, a sitting M.L.A., who has been convicted

under Sections 147, 326 read with Section 149, IPC and

sentenced to seven years rigorous imprisonment.

3. The appellant herein is the wife of the deceased who was

killed and burnt during the Kandhamal riots in Orissa in

the year 2008.

4. The trial Court found that at the time of occurrence, the

present respondent along with others obstructed the

deceased and his family members at Barepanga.

Thereafter, the rioters arrived there being called by them.

The trial Court observed:

"They became part of the unlawful assembly after

the arrival of the rioters.

...

At that time the members of the unlawful

assembly were armed with deadly weapons like

tangia (axe), knife etc. which, used as weapons of

offence is likely to cause death. Some members of

the unlawful assembly started assaulting the

deceased brutally and mercilessly immediately

arriving there. Thereafter, some members of the

mob burnt him there. Arrival of several persons of

ore than five at the place of occurrence, armed

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with deadly weapons, being called by the accused

persons and assaulting the deceased with various

weapons clearly indicate that the common object

of such unlawful assembly was to show criminal

force or to cause violence and to commit hurt to

the deceased with such weapons which

endangered his life which amounts to cause

grievous hurt. From their behaviour and conduct

at the spot the same is apparent.

...

While assaulting the deceased, some members of

the unlawful assembly exceeded their power and

brutally killed the deceased at the spot beyond the

common object of the unlawful assembly.

Thereafter, some members of such unlawful

assembly set fire to him. After killing him, some

members of the unlawful assembly thought it

prudent to wipe out the evidence of murder and

accordingly they buried the burnt dead body of the

deceased...

All the members of the unlawful assembly

including the present two accused persons ... can

be held guilty for commission of the offence

punishable under Section 326 read with Section

149, IPC as they shared the common object of the

unlawful assembly to cause grievous hurt to the

deceased...

After critical evaluation of the entire materials and

the position of law, it is found that both the

accused were involved for commission of the

offence of rioting punishable under Section 147,

IPC on the day of occurrence at the spot.

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...with the same materials they are found guilty for

commission of the offences punishable under

Section 147 and 326/149, IPC not under Section

302/149, IPC and I convict them there under".

5. The trial Court also made a separate order of sentence

which is as under:

"Convict Manoj Ku. Pradhan is a responsible

person of the locality and he is also a public

representative. Commission of riot by him with

others can not be considered lightly. The crime

committed by the convicts was not only against

the individual victim but also the same was

against the society at large. It is required under

the law that punishment to be awarded for a crime

must not be irrelevant but it should be conformed

to and being consisted with the atrocity and

brutality with which the crime has been

perpetrated.

Keeping in view such principle and the

circumstances under which the offence was

committed if the convicts are sentenced to

undergo rigorous imprisonment of seven years

and to pay fine of Rs.5000/- each for the offence

under Section 326/149, IPC and undergo rigorous

imprisonment of one year and to pay fine of

Rs.1000/- each for the offence under Section 147,

IPC it will meet the ends of justice.

Both the convicts are hereby sentenced to

undergo rigorous imprisonment of seven years

and to pay fine of Rs.5000/- (Rupees five

thousand) in default to undergo further rigorous

imprisonment of six months for the offence under

Section 326/149 and to undergo rigorous

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imprisonment of one year and to pay fine of

Rs.1000/- (Rupees one thousand) in default to

undergo further rigorous imprisonment of three

months for the offence under Section 147, IPC.

Substantive sentences are to run concurrently".

6. The respondent along with another convict preferred

Criminal Appeal No. 312 of 2010 in the High Court of

Orissa against the conviction and sentence passed by the

trial Court. The appeal was taken up for admission on

7.7.2010 by the High Court and on the same day the High

Court directed release of the respondent herein. The said

order reads as under:

"Considering the nature of allegation and the fact

that the petitioner No.1 is a sitting M.L.A. of

G.Udayagiri constituency, I directed that on

petitioner's furnishing bail bond of Rs.20,000/-

(Rupees twenty thousand) with two sureties each

for the like amount to the satisfaction of the

learned Ad hoc Addl. Sessions Judge, FTC-I,

Phulbani, Kandhamal, they shall be released on

bail. It is further directed that the petitioners shall

not threaten the witnesses examined. Mr. Patnaik,

learned Senior Advocate appearing for the

informant states that since the petitioner No. 1 is

an influential person, he may tamper with the

evidence in other cases pending against him. He

further states that security may be given to the

informant Kanak Rekha Naik.

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Considering the above submission, I direct the

Superintendent of Police, Kandhamal to provide

adequate protection to her, if she applies for the

same".

7. The above order is challenged on various grounds in this

appeal.

8. Shri Colin Gonsalves, learned senior counsel appearing for

the appellant submitted that the High Court committed

serious error in directing the release of the respondent

who has been convicted for the offences punishable under

Sections 147, 326 read with Section 149, IPC. purely on

the ground that he is a sitting M.L.A. The findings

recorded by the trial Court against the convict are very

serious in their nature. The learned senior counsel also

submitted that the High Court failed to take into

consideration the fact that the respondent is involved in

more than one such similar cases and being an influential

person, there is every likelihood of his tampering with the

evidence in those cases pending against him.

9. Shri P.S. Narasimha, learned senior counsel for the

respondent, on the other hand, submitted that the

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appellant has no right to challenge the order directing the

release of the respondent on bail. The learned senior

counsel further submitted that the respondent had made

a clear case for the suspension of his sentence pending

the appeal preferred by him which may come up for

hearing only after a considerable time and not in the near

future. It was also submitted that during the trial, the

appellant was on bail which is one of the important aspect

to be taken into consideration.

10.We have heard both the learned senior counsel at a

considerable length. For the purposes of disposal of this

appeal, it is not necessary to recapitulate all the findings

recorded by the trial Court as against the respondent for

his conviction under Section 326 read with Section 149,

IPC. Suffice it to note that there is a clear finding that he

was involved in the commission of the offences punishable

under Sections 147, 326/149, IPC. Of course, the same is

under challenge in the criminal appeal preferred by him

before the High Court. Precisely for that reason, we wish

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to make no comment whatsoever on the findings recorded

by the trial Court against the respondent.

11. We are unable to accept the submission made by Shri

P.S. Narasimha, learned senior counsel for the respondent

as to the maintainability of the present appeal preferred

by the wife of the deceased for more than one reason.

Firstly, it is evident from the impugned order that the

appellant was heard by the High Court while considering

the application filed by the respondent herein seeking

suspension of the sentence pending the appeal. Secondly,

we have granted permission to the appellant to file the

appeal challenging the impugned order passed by the

High Court. In the circumstances, it is not necessary to go

into the correctness of the observations made by the

Madras High Court in Srinath Prasad Vs. State1 upon

which reliance has been placed by the learned senior

counsel. They are too broadly stated and it does not deal

with jurisdiction of the High Court. In that case, the High

Court took the view that the intervener has no right to be

1 2004 Cri L.J. 3635

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heard while deciding the petition to suspend the execution

of sentence pending appeal. In our view, the High Court

in exercise of its power under Section 482 of the Code of

Criminal Procedure can always pass order and may hear

even an intervener while considering the application

seeking suspension of the sentence pending the appeal. It

is for the High Court to decide as to the circumstances

and the person who could be permitted to intervene while

hearing the applications seeking suspension of sentence

filed by the convicted person. It is a matter of exercise of

jurisdiction by the High Court. But it cannot be said that

the High Court has no jurisdiction to permit any

intervener opposing the suspension of sentence and grant

of bail by it in exercise of its power under Section 389 of

the Code.

12. It is true that 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

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are exceptional circumstances. 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 [see Bhagwan Rama Shinde Gosai &

Ors. Vs. State of Gujarat2]. But, suspension of

sentence, pending any appeal by a convicted person and

consequential release on bail is not a matter of course.

The appellate Court is required to record reasons in

writing for suspending the sentence and release of a

convict on bail pending the appeal. Therefore, the only

question that falls for our consideration in the instant case

is whether the High Court has taken into consideration all

the facts and recorded any reason directing the release of

the respondent pending the appeal preferred by him

challenging his conviction by the trial Court?

2 (1999) 4 SCC 421 11

13.There is no dispute that the respondent herein is

involved in more than one case of similar nature of rioting

etc. This fact has not been taken into consideration at all

by the High Court. The High Court did not even suspend

the execution of the sentence awarded by the trial Court

but directed his release on bail. The High Court was

obviously impressed by the singular fact that the

respondent is a sitting M.L.A. The High Court did not

record even a single reason confining the relief of

releasing on bail only to the respondent, though there are

two appellants in the appeal preferred challenging the

judgment of the trial Court. What are the reasons for

confining the relief only to the respondent herein and

directing his release? The only reason appears to be the

fact that the respondent is a sitting M.L.A. The law does

not make any distinction between the representatives of

the people and others, accused of criminal offences.

Neither they can claim any privilege nor can it be granted

by any Court. The law treats all equally.

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14.In our considered opinion, the High Court ought to have

taken the serious nature of allegations, the findings

recorded by the trial Court and the alleged involvement of

the respondent in more than one case, for deciding as to

whether it is a fit case for suspending the sentence

awarded by the trial Court and his release on bail during

the pendency of the appeal. The impugned order does not

record any reason whatsoever except vague observation

that nature of allegations have been taken into

consideration. The order clearly reflects that the High

Court was mainly impressed by the fact that the

respondent is a sitting M.L.A. In the circumstances, we

find it difficult to sustain the order.

15.For the aforesaid reasons, the impugned order is set

aside and the matter is remitted to the High Court for its

fresh consideration in accordance with law. We make it

clear that we have not expressed any opinion whatsoever

as to whether it is a fit case for the suspension of

sentence of the respondent No. 1 during the pendency of

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the appeal and for release on bail. It is for the High Court

to arrive at a proper conclusion for which purpose,

reasons are required to be recorded.

16.The appeal is allowed accordingly.

...........................................J

(B. SUDERSHAN REDDY)

NEW DELHI, ..........................................J.

JANUARY 25, 2011. (SURINDER SINGH NIJJAR)