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2013 Supreme(Raj) 205
RAJASTHAN HIGH COURT
Jaipur Bench
Mohd. Mohsin Khan @ Bhooria Vs. State (Rastogi, J.)
HON'BLE AJAY RASTOGI, J.
HON'BLE RAGHUVENDRA S. RATHORE, J.
HON'BLE V.K. MATHUR, J.
Mohd. Mohsin Khan @ Bhooria
Versus
State
D.B. Criminal Misc. 6th SOS Application No.155 of 2010 In D.B. Criminal Appeal No.1298 of 2004 with Six Other Connected matter, decided on 31.05.2013
Suresh Sahni, N.C. Choudhary, Vijay Choudhary, Abhay Jain, D.G. Chaturvedi, P.S. Sirohi, Anil Upman, Ravi Shankar Sharma & Kapil Gupta, for Appellants;
G.S. Rathore, Ms. Rekha Madnani, Govt. Advocates, for State
Headnote:Cr.P.C., 1973, Sec. 439 — Suspension of sentence — "Whether sentence of life imprisonment of a convict can be suspended solely on the ground of his having served five years or one half of the maximum sentence, inclusive of remission which would otherwise entitle him to release from jail" — Held — Reference answered in negative — Merely the convict has served five years or one half of the sentence including remission would not ipsi dixit make him/her entitle to be released on bail as a matter of right. (Para 29)
Reference answered.
na-iz-la-] 1973] /kkjk 439 & ltk fuyEcu & ^^D;k fdlh nks"kflf) ds vkthou dkjkokl dh ltk dks ,d ek= mlds a}kjk ifjgkj lfgr ikap o"kZ ;k vf/kdre ltk dk vk/kk Hkkx Hkqxrus ds vk/kkj ij fuyfEcr fd;k tk ldrk gS] tks vU;Fkk mls tsy ls NwVus gsrq gdnkj Bgjkrk gS** & vfHkfu/kkZfjr & jsQjsal dk udkjkRed esa mRrj fn;k & ek= blfy, fd nks"kfl) us ifjgkj lfgr ikap o"kZ ;k vk/kh ltk Hkqxr yh gS] ;g ckr Lo;aeso gh mls vf/kdkj Lo:i tekur ij NwVus dk gdnkj ugha cuk;sxhA ¼in la[;k 29½
jsQjsal dk mRrj fn;kA
“In view of aforesaid discussion, we have our own doubts about the correctness of the Division Bench judgment of this Court in Tahir Khan @ Shakkel, supra. For the sake of judicial propriety, however, we deem it appropriate to refer this question to a larger bench to be constituted by Hon'ble the Chief Justice of at least three judges, which may also consider correctness of the guidelines laid down by the Division Bench of this Court in Tahir Khan, supra, in the light of various Supreme Court judgments noted above.
Following question was therefore referred to the larger bench:-
“Whether sentence of life imprisonment of a convict can be suspended solely on the ground of his having served five years or one-half of the maximum sentence, inclusive of remission, which would otherwise entitle him to release from jail, and whether the judgment of a Division Bench of this Court in Tahir Khan @ Shakeel and Others vs. State of Rajasthan – 2005 (4) WLC (Raj.) 637 = RLW 2005(4) Raj. 2773, holding so, has been correctly decided?
2. This is how the matter has come up for consideration before us.
3. Counsel for appellants jointly submitted that the broad guidelines laid down by this Court in Tahir Khan @ Shakeel (supra) stands affirmed by the Apex Court in Surinder Singh @ Singhara reported in (2005 (7) SCC 387) and the question no more remains res integra at least to be examined by this Court and more so when the special leave to appeal (cr.) filed by the State of Raj. before the Apex Court arising from the judgment in the case of Tahir Khan has been dismissed.
4. Learned Public Prosecutor on the other hand is also unable to support the view of the reference court where the correctness of judgment of the division bench is being doubted.
5. The provision of Code of Criminal Procedure 1973 gives a right to an accused to file appeal against order of conviction u/S. 374 to this Court where sentence of imprisonment is for more than seven years and the convict person also have a right of filing an application for suspension of sentence, pending appeal, for his release on bail u/S. 389 of the Code. This Court can take judicial notice of the fact that DB Cr. Appeals which are pending in this Court where the accused are in jail and have rendered even more than 10 years of their incarceration but because of long pendency of cases they could not be taken up for hearing. We have taken details from the office of the registry and number of appeals awaiting hearing before the Court where the accused are incarceration for a period of more than seven years and could not be taken up for hearing by the Court even once and are lying in the archives of the High Court without having a touch of the hands of judges for number of years.
6. The report submitted by the office has been placed on record which reads ad infra:
At Jodhpur
Total Number of DB Cr. Appeals in the category of Hearing in which accused are in Jail for seven or more than seven years-
Total No. DB Cr. Appeals 114
Total Number of DB Cr. Appeals in the category of Hearing in which accused are in Jail for five or more than five years-
Total No. of DB Cr. Appeals 207
Total Number of SB Cr. Appeals in the category of Hearing in which accused are in Jail for seven or more than seven years-
Total No. of SB Cr. Appeals 08.
Total Number of SB Cr. Appeals in the category of Hearing in which accused are in Jail for five or more than five years-
Total No. of SB Cr. Appeals 24
Jaipur Bench
Total Number of DB Cr. Appeals in the category of Hearing in which accused are in Jail for more than seven years-
