Shiv Kumar vs State Of Nct Of Delhi

Shiv Kumar ...Appellant

Versus

State of N.C.T. of Delhi ...Respondent

JUDGMENT

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.

2

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

3 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

4 on the 6th 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

5