The court considered the provisions of Section 389 Cr.P.C. and Section 436A Cr.P.C. in light of the appellant-applicant's incarceration period, previous court decisions, and the delay in the appeal process, leading to the grant of bail.

ORDER :

Order on Criminal Misc. 1st Bail Application No. 4 of 2022

1. Heard learned Amicus Curiae for the appellant-applicant, learned A.G.A. for the State and perused the record.

2. The instant application under Section 389 Cr.P.C. has been preferred with the prayer to suspend the sentence of conviction and to release the appellant-applicant on bail in S.T. No. 464 of 2014 (State Vs. Bhura Singh), arising out of Case Crime No. 722 of 2014, under Section 376 I.P.C. and Section 5(N)/6 of Protection of Children from Sexual Offences Act, 2012, Police Station Sector-49, District Gautambudh Nagar, during the pendency of the criminal appeal.

3. It is submitted by learned Amicus Curiae for the appellant-applicant that the appellant-applicant has been convicted for 10 years by the impugned judgment and as per custody certificate dated 7.6.2022 of Superintendent, District Jail, Gautam Budh Nagar, appellant-applicant has undergone incarceration with remission 8 years 8 months and 22 days. The appellant-applicant is languishing in jail since 27.3.2014.

4. It is submitted that the provisions of Section 436A Cr.P.C. have been made applicable to the pending appeals against the order of conviction and Section 389 Cr.P.C. is to be reckoned along with Section 436A Cr.PC.

5. It is submitted that the appellant-applicant has already undergone detention for a period more than half of maximum period of sentence specified in the impugned judgment. The appeal is not likely to be heard in near future and as such the aforesaid factor may be considered in favour of the appellant-applicant and the appellant-applicant may be released on bail.

6. The Hon'ble Apex Court in the case of Dinesh Kumar Sinha Vs. State of Jharkhand (2009) 6 SCC 628 has granted bail in pending appeal on the ground that the accused has undergone half of the sentence and there is no possibility of early hearing of the appeal.

7. In Bhagwan Rama Shinde Gosai and others Vs. State of Gujarat (1999) 4 SCC 421, the Apex Court has observed as under :-

"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 of 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 bestow special concern in the matter of suspending of sentence, so as to make the appeal right, meaningful and effective. Of course, appellate courts can impose similar conditions when bail is granted."

8. Similarly, the Supreme Court in Ramnik Singh Vs. Intelligence Officer, Directorate of Revenue Intelligence, 2013 SCC Online SC 1276 has released the convict considering the custody certificate and that the convict has already undergone half of the sentence imposed and the possibility of appeal being taken up in near future is remote and as such, has entitled the convict for suspension of sentence during pendency of appeal.

9. In Saudan Singh Vs. State of U.P. vide order dated 05.10.2021 in Special Leave to Appeal (Criminal) No.4633 of 2021, the Apex Court has observed :

"We may note that there may be even convicts in custody in cases other than life sentence cases and in those cases again the broad parameter of 50 per cent of the actual sentence undergone can be the basis for grant of bail."

10. The Hon'ble Apex Court in the cas