2013 Supreme(Raj) 527
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Ajay Rastogi, Bela M.Trivedi, JJ.
Mohammad Arif - Appellant
Versus
State of Rajasthan and Anr. - Respondent
D.B. Criminal Misc. Bail Cancellation Appli. No. 231 of 2012 In D.B. Criminal Appeal No. 1111 of 2008.
Decided On : 2-01-2013
For the Complainant:Nawab Ali Rathore, Advocate.
For the Accused:V.S. Shekhawat and Deepak Soni, Advocates.
For the State: Rekha Madnani, Public Prosecutor.
Material concealment of facts by the accused dis-entitled him to seek indulgence for the suspension of sentence granted to him.
Headnote:
Criminal Procedure - Bail Cancellation - Material Concealment
Fact of the Case:
The complainant filed an application seeking cancellation of bail granted to the accused under Section 389 read with 439(2) of the Code of Criminal Procedure. The accused had filed multiple applications for suspension of sentence, and the complainant alleged material concealment of facts in the accused's second application.
Finding of the Court:
The court found that the accused had failed to disclose his approach to the Hon'ble Supreme Court after the rejection of his first application for suspension of sentence. The court held that this material concealment dis-entitled the accused to seek indulgence for the suspension of sentence granted to him.
Issues: The primary issue was the material concealment of facts by the accused in his second application for suspension of sentence.
Ratio Decidendi: The court emphasized that the accused's failure to disclose his approach to the Hon'ble Supreme Court after the rejection of his first application for suspension of sentence constituted material concealment, which dis-entitled him to seek indulgence for the suspension of sentence.
Final Decision: The court allowed the application for cancellation of suspension of sentence, recalling the order granting suspension of sentence to the accused. The accused was directed to surrender and be taken into judicial custody.
JUDGMENT
1. - Instant criminal misc. application has been filed at the behest of the complainant U/s 389 read with 439(2) of the Code of Criminal Procedure seeking cancellation of bail/suspension of sentence granted by the Court vide order dated 10.02.2012 in D.B. Criminal Misc. Second Suspension of Sentence Application No. 1382/2011 arising out of D.B. Criminal Appeal No. 1111/2008.
2. As it reveals from the record that present accused Abrar S/o Gosh Mohd. filed first application for suspension of sentence in D.B. Criminal Appeal No. 1111/2008 against the judgment dated 30.06.2008 convicting him for offence U/s 302 read with 34 IPC and his first application for suspension of sentence came to be rejected by the Court vide order dated 10.12.2008 and that was assailed by the present accused by filing Special Leave to Appeal (Crl) CRLMP.No(s).22570/2009 and that came to be rejected on 18.12.2009 and after its rejection the accused preferred second application for suspension of sentence (No.1382/2011). At the outset it will be appropriate to refer that this fact was not mentioned in the application that he approached to the Hon'ble Supreme Court and his Special Leave Petition came to be rejected on 18.12.2009 nor this fact was mentioned at the time when submissions were made. However, this Court while examining his second application for suspension of sentence took note of the fact that other co-accused Vakil Ahmed who too was convicted for offence U/s 302 read with 34 IPC, his application for suspension of sentence was allowed by this Court on 29.12.2008 and the present accused also deserves parity & indulgence for grant of suspension of sentence and that appears to be the primary reason granting indulgence to the present accused Abrar for suspension of his sentence by the Court while passing order dated 10.02.2012.
3. After grant of second application for suspension of sentence on 10.02.2012, the complainant moved instant application for cancellation of suspension of sentence primarily on the premise that this fact was not brought to the notice of the Court that after rejection of his first application for suspension of sentence on 10.12.2008 he approached to the Hon'ble Supreme Court and his petition came to be rejected on 18.12.2009 and if this fact would have been brought to the notice of the Court what would be its effect could not be visualised and this being a material concealment the present application filed by the complainant for cancellation of suspension of sentence as regards present accused Abrar deserves acceptance.
4. Counsel for accused Abrar is unable to submit as regards the fact not being mentioned that he approached to the Hon'ble Supreme Court after rejection of his first application for suspension of sentence by the Court vide order dated 10.12.2008 and his Special Leave to Petition came to be rejected on 18.12.2009. However, further submits that this fact may not be that material which could affect rights of the accused when he too is entitled to claim parity with that of other co-accused Vakil Ahmed who was convicted along with him for offence U/s 302 read with 34 IPC and if this fact remained undisputed that both were convicted with the aid of Sec.34 IPC he too is entitled to parity.
5. We are not at this stage supposed to examine merits as regards grant of second application for suspension of sentence by this Court on 10.02.2012 and there may be some merit in what is being contended by the accused appellant but here we are of the view that once this fact remain on record that he approached to the Hon'ble Supreme Court after rejection of his first application on 10.12.2008 and his Special Leave to Petition was rejected on 18.12.2009 it was his boundan duty to mention this fact in his second application for suspension of sentence and in our considered view it is certainly a material concealment which dis-entitles the accused to seek indulgence of this Court for liberty of suspension of sentence as granted to
Click Here to Read the rest of this document
Back
