JEETU KHATIKversusSTATE OF CHHATTISGARH

128                       [2022]
               SUPREME COURT     3 S.C.R. 128
                              REPORTS                       [2022] 3 S.C.R.


A                               JEETU KHATIK
                                        v.
                         STATE OF CHHATTISGARH
                        (Criminal Appeal No.603 of 2022)
B                                 April 11, 2022
        [DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]
             Sentence / Sentencing – Suspension of execution of sentence
      – Trial Court had convicted and sentenced appellant u/ss.363 and
C     354 IPC and s.8 of the Protection of Children from Sexual Offences
      (POCSO) Act, 2012 – Prayer of appellant for suspension of
      execution of sentence declined by High Court –Appellant pleaded
      before Supreme Court that the High Court had taken too strict and
      stern view of the matter and failed to appreciate that the maximum
      sentence of imprisonment awarded in the matter was of three years
D     – Held: The High Court, while referring to the basis of conviction
      of the appellant, did not make any comment as regards the fact that
      the maximum sentence of imprisonment is of three years and that
      the hearing of appeal is likely to take time – On the contrary, in the
      concluding part of the order impugned, the High Court ordered
E     that the appeal be listed for hearing ‘in due course’ – If the appeal
      remains pending in due course and the appellant by that time serves
      out the sentence of imprisonment, and then, if there be any possibility
      of his acquittal or any modification of the conviction/sentence, the
      injury suffered by him would be practically irreparable – These
      aspects, in the given set of facts and circumstances of the present
F     case, are themselves compelling reasons for suspension of execution
      of sentence during the pendency of appeal – There does not appear
      any other adverse reason to deny the relief to the appellant, like
      any criminal antecedents before the incident in question or any
      blame in the jail conduct – In the overall circumstances, execution
G     of the remaining part of the sentence awarded to the appellant is
      ordered to be suspended during the pendency of appeal in the High
      Court; and he is ordered to be released on bail on such terms and
      conditions as may be imposed by the Trial Court – Bail – IPC –
      ss.363 and 354 – Protection of Children from Sexual Offences
      (POCSO) Act, 2012 – s.8.
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                                       128
         JEETU KHATIK v. STATE OF CHHATTISGARH                               129


      Preet Pal Singh v. State of U.P. & Anr., (2020) 8 SCC                  A
      645 – referred to.
                        Case Law Reference
(2020) 8 SCC 645                  referred to              Para 9
                                                                             B
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.603 of 2022.
      From the Judgment and Order dated 09.11.2021 of the High Court
of Chhattisgarh at Bilaspur in I.A. No.01 of 2021 in Criminal Appeal
No.1219 of 2021.
                                                                             C
      Dr. Sangeeta Verma, Sameer Shrivastava, Advs. for the Appellant.
      Ms. Asmtia Singh, Gautam Narayan, Advs. for the Respondent.
      The following Order of the Court was passed:
                                                                             D
                                ORDER
      Leave granted.
      The challenge herein is to the order dated 09.11.2021, whereby
the High Court of Chhattisgarh at Bilaspur has declined the prayer for
suspension of execution of sentence during the pendency of Criminal          E
Appeal No. 1219 of 2021.
      The appeal aforesaid has been filed by the petitioner-appellant
against the judgment and order dated 24.09.2021 passed by the Additional
Sessions Judge (F.T.C.), Manendragarh, District Koriya, Chhattisgarh
                                                                             F
in Special Criminal Case No. 15 of 2019.
       The substance of the accusation against the appellant had been
that he kidnapped the 9-year-old victim from the custody of her legal
guardian and with intention to outrage her modesty, used criminal force
and with sexual intention, held her hand so as to forcefully take her to a   G
place away from road. It had been the prosecution’s case that the victim
got released her hand and ran while shouting. The Trial Court found the
appellant guilty and after recording conviction awarded sentences as
follows: -

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130             SUPREME COURT REPORTS                             [2022] 3 S.C.R.


A




B




C




             The submissions on behalf of the appellant before the Appellate
D     Court seeking suspension of execution of sentence had been that the
      Trial Court had overlooked major contradictions and omissions in the
      statements of witnesses; and that he was on bail during the trial but did
      not misuse his liberty and even after pronouncement of judgment, he
      was granted bail for a limited period. It was also submitted that the
      disposal of the appeal was likely to take some time and, therefore, the
E
      appellant may be released on bail.
            The High Court has proceeded to reject the prayer for suspension
      of execution of sentence with reference to the deposition of the
      prosecutrix, who was nine years of age, with its corroboration from the
F     medical evidence. The High Court, of course, made no comments on
      the merits of the case but then, ordered that the appeal be listed for
      hearing in due course.
            Learned counsel for the appellant has submitted that the High
      Court has taken too strict and stern view of the matter and has failed to
      appreciate that the maximum sentence of imprisonment awarded in this
G
      matter is of three years and all the sentences are to run concurrently;
      and the appellant had already served two months of imprisonment until
      consideration of the prayer for suspension by the High Court.
            It is submitted that if further execution of sentence is denied, the
      appellant is likely to serve out the entire or substantial part of the sentence
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         JEETU KHATIK v. STATE OF CHHATTISGARH                                 131


of imprisonment and, thereafter, even if the Appellate Court would be          A
persuaded to reverse the order of conviction, the deprivation of liberty
for all this time could never be undone.
      Learned counsel for the respondent, on the other hand, has
strenuously argued that for grant of suspension of execution of sentence,
special reasons were indeed required in this case; and, with reference to      B
the decision of this Court in the case of Preet Pal Singh v. State of
       U.P. & Anr.:(2020) 8 SCC 645 (particularly paragraphs 35 and 38
thereof), has argued that for no special and compelling reason forthcoming
in this case, the prayer for suspension of execution of sentence has
rightly been rejected.                                                         C
       Having given anxious consideration to the rival submissions and
having examined the material placed on record with reference to the
law applicable, we are unable to agree with the submissions made on
behalf of the respondent that, in this matter, where the maximum sentence
of imprisonment is of three years, the appellant ought to be denied the        D
concession of bail during the pendency of appeal.
       The observations in paragraphs 35 and 38 of the decision in Preet
Pal Singh (supra), as sought to be relied upon by the learned counsel
for the respondent, read as under: -
      “35. There is a difference between grant of bail under Section           E
      439 CrPC in case of pre-trial arrest and suspension of sentence
      under Section 389 CrPC and grant of bail, post conviction. In the
      earlier case, there may be presumption of innocence, which is a
      fundamental postulate of criminal jurisprudence, and the courts
      may be liberal, depending on the facts and circumstances of the          F
      case, on the principle that bail is the rule and jail is an exception,
      as held by this Court in Dataram Singh v. State of U.P.(2018) 3
      SCC 22. However, in case of post-conviction bail, by suspension
      of operation of the sentence, there is a finding of guilt and the
      question of presumption of innocence does not arise. Nor is the
      principle of bail being the rule and jail an exception attracted, once   G
      there is conviction upon trial. Rather, the court considering an
      application for suspension of sentence and grant of bail, is to
      consider the prima facie merits of the appeal, coupled with other
      factors. There should be strong compelling reasons for grant of
      bail, notwithstanding an order of conviction, by suspension of
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132             SUPREME COURT REPORTS                            [2022] 3 S.C.R.


A           sentence, and this strong and compelling reason must be recorded
            in the order granting bail, as mandated in Section 389(1) CrPC.
            ***                           ***                     ***
            38. In considering an application for suspension of sentence, the
            appellate court is only to examine if there is such patent infirmity
B           in the order of conviction that renders the order of conviction
            prima facie erroneous. Where there is evidence that has been
            considered by the trial court, it is not open to a court considering
            application under Section 389 to reassess and/or re-analyse the
            same evidence and take a different view, to suspend the execution
C           of the sentence and release the convict on bail.”
             Significant aspect of the matter is that the observations aforesaid
      have been made by the Court in relation to a case where the accused
      was convicted, inter alia, of the offence under Section 304-B IPC and
      was awarded varying sentences, including that of life imprisonment.
D     Obviously, the observations aforesaid have to be read with reference to
      the factual background and context.
             The relevant aspects of the present case are that the maximum
      sentence awarded is of three years’ imprisonment. As regards the
      requirement of special or compelling reasons, noteworthy it is that one
E     of the grounds urged before the High Court on behalf of the appellant
      was that looking to the term of sentence awarded, when the disposal of
      the appeal is likely to take time, he may be ordered to be released on
      bail.
              The High Court, while referring to the basis of conviction of the
F     appellant, did not make any comment as regards the fact that the maximum
      sentence of imprisonment is of three years and that the hearing of appeal
      is likely to take time. On the contrary, in the concluding part of the order
      impugned, the High Court ordered that the appeal be listed for hearing
      ‘in due course’.
             Obviously, the High Court has not found the appeal worth assigning
G
      a priority for hearing. That being the position, if the appeal is to be heard
      only on its turn, the likely scenario is that it would not be taken up for
      hearing immediately by the High Court. If the appeal remains pending in
      due course and the appellant by that time serves out the sentence of
      imprisonment, and then, if there be any possibility of his acquittal or any
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          JEETU KHATIK v. STATE OF CHHATTISGARH                               133


modification of the conviction/sentence, the injury suffered by him would     A
be practically irreparable.
        In our view, these aspects, in the given set of facts and
circumstances of the present case, are themselves of the compelling
reasons for suspension of execution of sentence during the pendency of
appeal. There does not appear any other adverse reason to deny the            B
relief to the appellant, like any criminal antecedents before the incident
in question or any blame in the jail conduct.
      In the overall circumstances, we are inclined to order suspension
of execution of the remaining part of the sentence awarded to the
appellant.                                                                    C
       Accordingly, the appeal is allowed; execution of the remaining
part of the sentence awarded to the appellant is ordered to be suspended
during the pendency of appeal in the High Court; and he is ordered to be
released on bail on such terms and conditions as may be imposed by the
Trial Court.                                                                  D

Bibhuti Bhushan Bose                                        Appeal allowed.




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                                                                              F




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