A convict sentenced to a fixed term who has served over 50% of the sentence is entitled to suspension of sentence and bail if the appeal is unlikely to be heard before the sentence expires, to prevent violation of Article 21 of the Constitution.

IA ORDER

1. RULE

. Learned Additional Public Prosecutor appears and waives service of notice of rule on behalf of the respondent-State.

2. By way of the present application under Section 430 of the Bharatiya Nagarik Surakhsha Sanhita, 2023 , the applicant - accused is seeking suspension of sentence and release on regular bail during pendency of the present appeal against the judgment and order passed in Sessions Case No. 17/2016 by the learned 2nd Additional Sessions Judge, Kalol, Gandhinagar on 19.09.2020, whereby, the present applicant - accused was sentenced to rigorous imprisonment for 07 years for the offence under Section 326 of the Indian Penal Code and rigorous imprisonment for 10 and fine of Rs.25,000/- for the offence under Section 307 of the Indian Penal Code. Both the sentences were ordered to run concurrently.

3. Heard learned advocate Mr. Janak Parmar for learned advocate Mr. A.M. Shaikh for the applicant and learned APP Mr. Aditya Jadeja for the respondent State.

4. Learned Advocate Mr. Janak Parmar for the applicant submits that the applicant has been sentenced for a fixed period of 10 years and the applicant has already completed more than half of the awarded sentence i.e. substantial period of 5 years, 7 months and 7 days in jail and the application may be considered in light of the decisions of the Apex Court in the case of Saudan Singh Vs. State of Chhatisgarh passed in Special Leave to Appeal (Crl) No. 4633 of 2021 and also in the case of Atul @ Ashutosh V. State of Madhya Pradesh in Criminal Appeal No. 579 of 2024 on 02.02.2024. Learned advocate submits that the present appeal is not likely to be heard in near future and hearing of the same would take some long time and hence, no purpose would be served by keeping the applicant in jail for indefinite period with hardened criminals. The applicant has a good case on merits and hence, the suspension may be allowed and the applicant be enlarged on bail pending the hearing and final disposal of the captioned Criminal Appeal.

5. Learned APP for the respondent – State has strongly objected to the submissions made by the learned advocate for the applicant and has submitted the jail remarks which shows that the applicant has undergone 5 years, 7 months and 7 days in jail and that learned Trial Court has rightly convicted the present applicant as he has been involved in a very serious offence and has requested this Court to dismiss the present application.

6. The Apex Court in the case of Atul @ Ashutosh (Supra), has observed as under:

“Heard learned counsel for the parties.

Leave granted.

Out of fixed term sentence of five years, the appellant- accused has already undergone half of the sentence. The appeal against conviction of the year 2022 is not likely to reach before he completes the entire sentence. Hence, a case is made out for grant of suspension of sentence pending the appeal and grant of bail. For that purpose, the appellant shall be produced before the Trial Court within a period of one week from today. The Trial Court shall enlarge the appellant on bail on appropriate terms and conditions till the final disposal of the appeal before the High Court. Before parting with order, we must note here that notwithstanding several decisions of this Court holding that when there is a fixed term sentence and especially when the appeal is not likely to be heard before completing entire period of sentence, normally suspension of sentence and bail should be granted. We find that in several deserving cases, bail is being denied. Such cases should never be required