Court No. - 90

Case :- CRIMINAL APPEAL No. - 3155 of 2016

Appellant :- Chandra Dev Maurya

Respondent :- State of U.P.

Counsel for Appellant :- Rakesh Chandra,Anil Kumar

Verma,Ashok Kumar Mishra

Counsel for Respondent :- G.A.

Hon'ble Vikram D. Chauhan,J.

Order on Criminal Misc. IInd Bail Application No. 6 of

2018

Heard learned counsel for the appellant-applicant, learned

A.G.A. for the State and perused the record.

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. 368 of

2015 (State Vs. Chandra Dev Maurya), arising out of Case

Crime No. 251 of 2015, under Sections 376 and 506 I.P.C.,

Police Station Rohaniya, District Varanasi, during the pendency

of the criminal appeal.

It is submitted on behalf of the appellant-applicant that the

appellant-applicant has been convicted for 10 years by the

impugned judgment and he has already suffered incarceration

for more than 6 years. The appellant-applicant is languishing in

jail since 3.6.2015.

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.

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.

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.

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."

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.

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