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2025 Supreme(Online)(All) 867
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Rajeev Misra, J
Ankit Kumar – Appellant
Versus
State of U.P. – Respondent
CRIMINAL APPEAL No. - 4034 of 2025
Petitioner: Saurabh Kumar
Respondent: G.A.
An accused convicted under IPC sections may be granted bail during appeal if there is no misuse of bail during trial and the appeal is unlikely to be heard soon.
Headnote:(A) Indian Penal Code, 1860 - Sections 363 and 366 - Criminal appeal against conviction - Applicant convicted under Section 363 IPC and sentenced to three years rigorous imprisonment and under Section 366 IPC to five years rigorous imprisonment, both sentences to run concurrently - Application for suspension of sentence filed during appeal - Court considers the absence of misuse of bail during trial and the likelihood of appeal hearing delay due to heavy pendency of cases - Court finds prima facie that the conviction is not established based on prosecutrix's deposition. (Paras 6, 9, 13)
(B) Bail - Principles governing bail - An accused convicted and sentenced to a definite term may be granted bail if the appeal is unlikely to be heard soon, especially when there is no misuse of bail during trial. (Paras 6, 12)
Facts of the case:
The applicant was convicted for kidnapping and abduction under IPC sections, sentenced to a total of eight years imprisonment, and sought bail during the appeal process.
Findings of Court:
The court found that the applicant had not misused bail during trial and that the conviction was not established based on the evidence presented.
Issues: The main issues were whether the conviction was justified based on the evidence and the appropriateness of granting bail during the appeal.
Ratio Decidendi: The court ruled that the applicant's clean antecedents, lack of misuse of bail, and the likelihood of delayed appeal justified granting bail, emphasizing that the conviction was prima facie not established.
Result: Application for suspension of sentence is Allowed.
Order on Application for Suspension of Sentence
1. Heard Mr. Saurabh Kumar, the learned counsel for applicant/appellant and the learned A.G.A. for State/opposite party-1.
2. Perused the record.
3. Feeling aggrieved by the judgement and order dated 24.3.2025, passed by Additional District and Sesions Judge/Special Judge POCSO Act, Court No.2. Muzaffar Nagar arising out of Case Crime No. 654 of 2017, under sections 363, 366 IPC , Police Station- Purkazi, District- Muzaffar Nagar, applicant/appellant has approached this Court by filing aforementioned criminal appeal.
4. By means of the impugned judgement and order, applicant/appellant has been convicted under section 363 IPC and consequently, sentenced to three years rigorous imprisonment along with fine of Rs. 2,000 and in case of default in payment of fine, applicant/appellant is to undergo three months of additional incarceration, under section 366 IPC and therefore, sentenced to five years rigorous imprisonment along with fine of Rs. 5,000 and in case of default in payment of fine, applicant/appellant is to undergo three months of additional simple imprisonment. The impugned judgement and order further record that the both the sentences shall run concurrently.
4. Learned counsel for applicant/appellant submits that applicant/appellant was enlarged on bail during the pendency of trial. However, subsequent to the impugned judgment dated 24.3.2025, applicant/appellant was taken into custody by Court below. Accordingly, applicant/appellant has filed above mentioned application for suspension of sentence/grant of bail during pendency of present appeal.
5. The learned counsel for applicant/appellant, submits that even thought applicant/appellant is a convicted accused and undergoing incarceration, yet he is liable to be enlarged on bail during the pendency of present appeal. Applicant/appellant was enlarged on bail during the pendency of trial. However, there is nothing on record to show that applicant/appellant misused the liberty of bail.
6. It is then contended by the learned counsel for applicant/appellant that conviction and sentence awarded by Court below against applicant/appellant is a definite sentence/punishment, inasmuch as the maximum sentence awarded to applicant/appellant by Court below is seven years. In view of heavy pendency of appeals coupled with the fact that there is an acute shortage of Judges in this Court, therefore there is no likelihood of the present appeal being heard in near future. To buttress his submission he has referred to the judgement of Supreme Court in Atul @ Ashutosh Vs. State of M.P. , (2024) 3 SCC 663 wherein the Apex Court has itself observed that where definite sentence, punishment has been awarded by Court below against accused and there is no possibility of the appeal being heard in near future, the Court must enlarge such an accused on bail during the pendency of appeal.
7. Apart from above, the learned counsel for applicant has also assailed the findings returned by Court below in respect of the conclusion drawn. According to the learned counsel for applicant, upon perusal of deposition of the prosecutrix who deposed before Court below as P.W.-1, it is explicitly clear that the ingredients of the charging sections i.e. 363 and 366 IPC are not satisfied. He has then referred to ingredients of aforesaid charging sections which are reproduced herein under:
Section 363 IPC - Essential Ingredients- An offence under section 363 has following essentials:
(i) That the accused did
(a) Forceful compulsion or inducement by deceitful means;
(b) The object of such compulision or inducement must be the going to a person from any place;
(ii)That such kidnapping of any person was done from India or from the lawful guardianship.
Section 366 IPC - Essential Ingredients- An offence under this Section has following essential ingredients:
(i) Kidnapping or abducting of any woman;
(ii) Such kidnapping or abducting must be--
(i) with intent that she may be compelle
