IMPORTANT POINT
The court reaffirmed that the discretionary power to suspend a sentence under Section 389 of the Cr.P.C. requires a prima facie case and consideration of the gravity of the offense.

JUDGMENT :

(Soumen Sen, J.) :

1. This is an application for suspension of sentence. The petitioners are in custody for nearly 10 years 8 months and 6 days as on 9th August, 2024 as revealed from the report filed by the jail Superintendent.

2. Their behavior was ‘good’ and they do not have any criminal antecedent. All of them are accused of murder of two persons Sujit and Shambhu. The learned Trial Court on the basis of the evidence of PW1 to PW5 along with other evidence has convicted them and sentenced them to life imprisonment.

3. The said accused persons are the appellants.

4. The appeal was filed in the year 2017.

5. Mr. Fazlur Rahman learned Counsel appearing on behalf of the appellant/applicant has submitted that in view of the long incarceration for more than 10 years and the appeal not being likely to be decided immediately in view of the decision of the Hon’ble Supreme Court in Saudan Singh v. State of U.P., 2022 SCC Online SC 697 the appellants are entitled to bail on terms and conditions as may be imposed by this Court. It is submitted that they were on bail during the period of trial and they did not misuse the liberty. Mr. Rahman has referred to paragraph 12 and 13 of the decision of the Hon’ble Supreme Court in Sunil Kumar v. Vipin Kumar, 2014 (8) SCC 868 in which it is stated:

“12. 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. 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.

13. 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 Code of Criminal Procedure 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.

6. It is further submitted that in Kashmira Singh v. The State of Punjab, 1977 (4) SCC 291, the Hon’ble Supreme Court has reiterated that when the appeal of the accused could not be disposed of within a reasonable measure of time and keeping in mind that any prolongation of detention is likely to affect his right under Article 21 of the Constitution of India as ultimately if he is found to be innocent the period of incarceration for an unduly long period would not be justified.

7. Mr. Rahaman has referred to two orders passed by the Hon’ble Supreme Court in Mahidul Molla v. State of West Bengal in Criminal Appeal No. 122 of 2019 dated 8th April, 2014 and Khokon Sardar & Anr. v. The State of West Bengal in Special Leave Petition Appeal (Criminal) 9262 of 2022, dated 6th July, 2023 on the same breath that in the event the Court is unable to dispose of the appeal within a reasonable time and the conduct of the appellant is good, the court may grant bail on such terms and conditions as the court may deem fit and proper.

8. Mr. Rahaman submitted that if the court is of the view that at this stage the appellant is required to make out a prima facie case for grant of bail there are glaring inconsistencies in the evidence of the witnesses of the prosecution which would establish absence of the appellants at the place of occurrence. It is submitted that the letter of the Municipal Corporation Dumdum dated 19th January, 2010 and 16th June, 2010 marked as Exbt. A and B respectively on admission and a certificate issued by Sudip Kumar Banerje