Supreme Court of India
KANAKA REKHA NAIKversusMANOJ KUMAR PRADHAN & ANR.
- Citation
- 2011 INSC 72
- Decided
- 25 January 2011
- Disposal
- Appeal(s) allowed
- Bench
- B SUDERSHAN REDDY
Holding
A High Court cannot grant bail or suspend a sentence merely because the convict is a sitting MLA; it must consider the seriousness of the offence, the fact of multiple cases, and record specific reasons, and it may entertain interveners under s.482 CrPC.
Summary
Manoj Kumar Pradhan, a sitting MLA, was convicted under IPC sections 147, 326 read with 149 and sentenced to seven years' rigorous imprisonment. He and another convict appealed, and the Orissa High Court granted him bail on the same day, citing his status as an MLA. The appellant, Kanaka Rekha Naik, the wife of the deceased victim, challenged the High Court's order, arguing that the seriousness of the offences and the respondent's involvement in multiple similar cases required a careful assessment before suspending the sentence. The Supreme Court held that the High Court must consider the gravity of the allegations, record specific reasons for any suspension of sentence under s.389 CrPC, and cannot grant any privilege merely because the convict is an elected representative. It also clarified that the High Court, under s.482 CrPC, may entertain interveners in applications for suspension of sentence. Consequently, the order granting bail was set aside and the matter remitted to the High Court for fresh consideration. The appeal was allowed.
Issues considered
- The High Court may grant bail or suspend a sentence solely on the ground that the convict is a sitting MLA.
- Whether the High Court must record reasons when suspending a sentence under s.389 CrPC.
- The jurisdiction of the High Court to entertain interveners in applications for suspension of sentence under s.482 CrPC.
- Whether elected representatives enjoy any privilege in criminal proceedings.
Legislation cited
- Code of Criminal Procedure, 1973s. 389, s. 482
- Indian Penal Code, 1860s. 147, s. 149, s. 326
Subjects
suspension of sentencebail pending appealelected representative privilegeCrPC s.389CrPC s.482IPC sections 147 326 149equality before lawhigh court jurisdictioninterveners
Judgment
[2011) 1 S.C.R. 842
A•
KANAKA REKHA NAIK >- ~
v.
MANOJ KUMAR PRADHAN & ANR.
(Criminal Appeal No.225 of 2011)
B
JANUARY 25, 2011
[B. SUDERSHAN REDDY AblD SURINDER SINGH
NIJJAR, JJ.]
c Code of Criminal Procedure, 1973:
s.389 - Suspension of sentence pending appeal -
Respondent, a sitting ML.A. convicted ulss. 147, 326 r.w. s.
149 JPC and sentenced to seven years rigorous imprisonment
D - Appeal filed by respondent alongwith another convict befo_re
High Court - High Court granting bail to him on the ground y ,
that he was a sitting M.L.A. - Held: High Court ought to have
considered serious nature of allegations, the findings recorded
by trial court and alleged involvement of respondent in more
E than one case for deciding as to whether it was a fit case for
suspending the sentence awarded by trial court and his
F
release on bail during pendency of appeal - The High Court
was mainly impressed by the fact that respondent was a sitting
M.L.A. - High Court did not rec.ord even a si1:1gle reason
confining the relief of releasing on bail only to the respondent
-
through there was another convict who had preferred appeal
challenging the judgment of trial court - Law does not make
any distinction between representatives of the people and
others, accused of criminal offences - Neither they can claim
any privilege nor can it be granted by any court - Law treats
G
all equally - The order of High Court is set aside and matter T
remitted to it for afresh consideration - Penal Code, 1860 -
SS. 147, 326 r. W. S. 149.
s.482 - Scope of, while hearing the applications seeking
H 842
' KANAKA REKHA NAIK v. MANOJ KUMAR PRADHAN 843 .
&ANR.
suspension of sentence filed by the convicted person - Held: A
,_ ~ High Court in exercise of its power u/s.482 can always pass
order and may hear even an intervener while considering the
application seeking suspension of the sentence pending the
appeal.
8
The respondent was a sitting M.L.A. He was
convicted under Sections 147, 326 read with Section 149,
IPC · and sentenced to seven· years rigorous
"* imprisonment. The respondent along with another
·convict filed appeal in the High Court against the C
conviction and sentence passed by the trial court. The
appeal was taken up for admission by the High Court and
on the same day, the High Court granted bail to the
respondent holding that he was a sitting M.L.A.
In the instant appeal, it was contended· for the D
........ appellant that the High Court committed serious error in
directing the release of the respondent convicted for the
offences punishable under Sections 147, 326 read with
Section 149, IPC. purely on the ground that he was a
sitting M.L.A.; that the findings recorded by the trial court E /
against the convict were very serious in nature and the
- High Court failed to ~ke into consideration the fact that
......,_ the respondent was involved in more than one such
similar cases and being an influential person, there was
every likelihood of his tampering with the evidence in F-
those cases pending against him. On the other hand, it
was contended. for the respondent that the appellant had
no right to challenge the order directing the release of the
respondent on bail.
Allowing the appeal and remitting the matter to the G
High Court, the Court
HELD: 1. The High Court in exercise of its power
under Section 482 Cr.P.C. can alway_s__pass order and
may hear even an intervener while considering the H
844 SUPREME COURT REPORTS [2011) 1 S.C.R.
A application seeking suspension of the sentence pending
the appeal. It is for the High Court to decide as to the ~ ~
circumstances and the person who could be permitted
to intervene while hearing the applications seeking
suspension of sentence filed by the convicted person.
B [Para 11] [850-F-G]
2. It is true that 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
C are exceptional circumstances. But if for any reason, the
sentence of a limited duration cannot be suspended,
every en'deavour 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,
D the very valuable right of appeal would be an exercise in-
. futility by efflux of time. But, suspension of sentence, ~
pending any appeal by a convicted person and
consequential release on bail is not a matter of course.
The appellate court is required to record reasons in
E writing for suspending the sentence and release of a
convict on bail pending the appeal. [Para 12] [851-B-D]
3. No doubt, the respondent was involved in more ___
than one case of similar nature of rioting etc. This fact
was not taken into consideration at all by the High Court.
F The High Court did not even suspend the execution of
the sentence awarded by the trial Court but directed his
release on bail. The High Court was obviously impressed
by the singular fact that the respondent was a sitting
M.L.A. The High Court did not record even a single reason
G confining the relief of releasing on bail only to the .,....
respondent, though there was another convict who had
preferred appeal challenging the judgment of the trial
court. The law does not make any distinction between the
representatives of the people and others, accused of
H criminal offences, Neither they can claim any privilege nor
KANAKA REKHA NAIK v: MANOJ KUMAR PRADHAN 845
& ANR.
can it be granted by any court. The law treats all equally. A
•. -A;. The High Court ought to have taken the serious nature
of allegations, the findings recorded by the trial court and
the alleged involvement of the respondent in more than
one case, for deciding as to whether it is a fit case for
suspending the sentence awarded by the trial court and B
his release on bail during the pendency of the appeal. The
. impugned order does not record any reason whatsoever
~-except vague observation that nature of allegation have
been taken into consideration. The order clearly reflected
that the High Court was mainly impressed by the fact that c
the respondent was a sitting M.L.A. In the ~ircumstances,
the impugned order is set aside. [Paras 13, 14) [851-F-H;
852-A-D]
Case Law Reference:
• D
2004 Cri L.J. 3635 Referred to Para 11
(1999) 4 sec 421 Relied on Para 12
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 225 of 2011.
E
From the Judgment and Order dated 07.07.2010 of the
High Court of Orissa, Cuttack in Misc. Case No. 891 of 2010
..- in Criminal Appeal No. 312 of 2010.
Colin Gonsalves and P.S. Narasimha, Lansinglu Rongmei,
F
Dibya Pariccha, Jyoti Mendiratta, Sagar, S.S. Shamshery,
Bhupender Yadav, Bala Subrahmaniyam, Jyotika Kalra and
Suresh Chandra for the appearing parties.
The Judgment of the Court was delivered by
. I G
B. SUDERSHAN REDDY, J. 1. Leave granted .
2. This appeal impugns the order dated 7th July, 2010
passed by the High Court of Orissa in Miscellaneous Case No.
891 of 2010 in Criminal Appeal No. 312 of 2010, whereby the
High Court ~as granted bail to the respondent Manoj Kumar H
846 SUPREME COURT REPORTS [2011] 1 S.C.R.
A Pradhan, a sitting M.L.A., who has been convicted under
Sections 147, 326 read with Section 149, IPC and sentenced ~~
to seven years rigorous imprisonment.
3. The appellant herein is the wife of the deceased who
was killed and burnt during the Kandhamal riots in Orissa in
B
the year 2008.
4. The trial Court found that at the time of occurrence, the
present respondent along with others obstructed the deceased ~
and his family members at Barepanga. Thereafter, the rioters
c arrived there being called by them. The trial Court observed:
"They became part of the unlawful assembly after the
arrival of the rioters.
D
At that time the members of the unlawful assembly were ..,...- ~
armed with deadly weapons like tangia (axe}, knife etc.
which, used as weapons of offence is likely to cause death.
Some members of the unlawful assembly started
assaulting the deceased brutally and mercilessly
E
immediately arriving there. Thereafter, some members of
the mob burnt him there. Arrival of several persons of ore
than five at the place of occurrence, armed with deadly
weapons, being called by the accused persons and
assaulting the deceased with various weapons clearly
F indicate that the common object of such unlawful assembly
was to show criminal force or to cause violence and to
commit hurt to the deceased with such weapons which
endangered his life which amounts to cause grievous hurt.
From their behaviour and conduct at the spot the same is
G apparent. T
While assaulting the deceased, some members of the
unlawful assembly exceeded their power and brutally killed
H
KANAKA REKHA NAIK v. MANOJ KUMAR PRADHAN 84 7
& ANR. [B. SUDERSHAN REDDY, J.]
the deceased at the spot beyond the common object of A
•- -4( the unlawful assembly. Thereafter, some members of such
unlawful assembly set fire to him. After killing him, some
members of the unlawful assembly thought it prudent to
wipe out the evidence of murder and accordingly they
buried the burnt dead body of the deceased ... B
All the members of the unlawful assembly including the
present two accused persons ... ·can be· held guilty for
commission of the offence punishable under Section 326
read with Section 149, IPC as they shared the common
object of the unlawful assembly to cause grievous hurt to c
the deceased ...
After critical evaluation of the entire materials and the
position of law, it is found that both the accused were
involved for commission of the offence of rioting punishable D
under Section 147, IPC on the day of occurrence at the
Spot.
... with the same materials they are found guilty for
commission of the offences punishable under Section 147
and 326/149, IPC not under Section 302/149, IPC and I E
convict them there under".
5. The trial Court also made a separate order of sentence
which is as under:
F
"Convict Manoj Ku. Pradhan is a responsible person of the
locality and he is also a public representative. Commission
of riot by him with others can not be considered lightly. The
crime committed by the convicts was not only against the
- 't
individual victim but also the same was against the society
at large. It is required under the law that punishment to be
awarded for a crime must not be irrelevant but it should
G
be conformed to and being consisted with the atrocity and
brutality with which the crime has been perpetrated.
' H
848 SUPREME COURT REPORTS [2011] 1 S.C.R. .
A Keeping in view such principle and the circumstances
under which the offence was committed if the convicts are »-
sentenced to undergo rigorous imprisonment of seven
years and to pay fine of Rs.5000/- each for the offence
under Section 326/149, IPC and undergo rigorous
B imprisonment of one year and to pay fine of Rs.1000/- each
for the offence under Section 147, IPC it will meet the ends
of justice.
Both the convicts are hereby sentenced to undergo
_.
rigorous imprisonment of seven years and to pay fine of
c Rs.5000/- (Rupees five thousand) in default to undergo
further rigorous imprisonment of six months for the offence
under Section 326/149 and to undergo rigorous
imprisonment of one year and to pay fine of Rs.1000/-
(Rupees one thousand) in default to undergo further
D rigorous imprisonment of three months for the offence
under Section 147, IPC. Substantive sentences are to run
concurrently".
6. The respondent along with another convict preferred
E Criminal Appeal No. 312 of 2010 in the High Court of Orissa
against the conviction and sentence passed by the trial Court.
The appeal was taken up for admission on 7.7.2010 by the
High Court and on the same day the High Court directed
release of the respondent herein. The said order reads as ---
under:
.F
"Considering the nature of allegation and the fact that the
petitioner No.1 is a sitting M.L.A. of G.Udayagiri
constituency, I directed that on petitioner's furnishing bail
bond of Rs.20,000/- (Rupees twenty thousand} with twp
G sureties each for the like amount to the satisfaction of the T"
learned Ad hoc Addi. Sessions Judge, FTC-I, Phulbani,
Kandhamal, they shall be released on bail. It is further
directed that the petitioners shall not threaten the witnesses
examined. Mr. Patnaik, learned Senior Advocate
H appearing for the informant states that since the petitioner
KANAKA REKHA NAIK v. MANOJ KUMAR PRADHAN 849
& ANR. [B. SUDERSHAN REDDY, J.]
No. 1 is an influential person, he may tamper with the A
evidence in other cases pending against him. He further
states that security'may be given to the informant Kanak
Rekha Naik. ·
Considering the above submission, I direct the Superintendent 8
of Police, Kandhamal to provide adequate protection to her, if
she applies for the same". - · -
7. The above order is challenged on various grounds in
. ~his appeal.
c
. 8. Shri Colin Gonsalves, leqrned senior counsel appearing
for the appellant submitted ttTat the High Court committed
serious error in directing the reiease of the respondent who has
been convicted for the offences punishable under Sections 147,
326 r~ad with Section 149, IPC. purely on the grbund that he D
is a sitting M.L.A. The findings recorded by the trial Court
against the convict are very serious in their nature. The learned
·senior counsel also submitted that the High Court failed to take
into consideration the fact that the respondent is involved in
· · more than one such similar cases and being an influential E
person, there is every likelihood of his tampering with the
evidence in those cases pending against him. ·~ .. J,
~ Shri P.S. Narasimha, I.earned senior counsel for the
respondent, on the other hand, submitted that the appellant has
no right to challenge the order directing the release of the F
respondent on bail. The learned senior counsel further submitted
that the respondent had made a clear case for the suspension
of his sentE!hce pending the appeal preferred by him which may
come up lor hearing only after a considerable time and not in
the near future. It was also submitted that during the trial, the G
appellant was on bail which is one of the important aspect to
be taken into consideration.
10. We have heard both the learned senior counsel at a
-eonsiderable length. For the purposes of disposal of this H
850 SUPREME COURT REPORTS [2011] 1 S.C.R.
A appeal, it is not necessary to recapitulate all the findings
rec.orded by the trial Court as against the respondent for his ' )L -
conviction under Section 326 read with Section 149, IPC.
Suffice it to note that there is a clear finding that he was involved
in the commission of the offences punishable under Sections
B 147, 326/149, IPC. Of course, the same is under challenge in
the criminal appeal preferred by him before the High Court.
Precisely for that reason, we wish to make no comment
whatsoever on the findings recorded by the trial Court against
the reSJ)Ondent.
c 11. We are unable to accept the submission made by Shri
P .S. Narasimha, learned senior counsel for the respondent as
to the maintainability of the present appeal preferred by the
wife'Offne deceased for more than one reason. Firstly, it is
evident from the impugned order that the appellant was heard
D by the High Court while considering the application filed by the
respondent herein seeking suspension of the sentence pending
the appeal. Secondly, we have granted permission to tbe
appellant to file the appeal challenging the impugned order
passed by the High Court. In the circumstances, it is not
E necessary to go into the correctness of the observations made
by the Madras High Court in Srinath Prasad Vs. State 1 upon
which reliance has been placed by the learned senior counsel.
They are too broadly stated and it does not deal with jurisdiction
of the High Court. In that case, the High Court took the view
F that the intervener has no right to, be heard while deciding the
petition to suspend the execution of sentence pending appeal.
In our view, the High Court in exercise of its power under
Section 482 of the Code of Criminal Procedure can always
pass order and may hear even an intervener while considering
G the application seeking suspension of the sentence pending the
appeal. It is for the High Court to decide as to the
circumstances and the person who could be permitted to
intervene while hearing.the applications seeking suspension of
sentence filed by the convicted person. It is a matter of exercise
H 1. 2004 Cri L.J. 3635.
KANAKA REKHA NAIK v. MANOJ KUMAR PRADHAN 851
& ANR. [B. SUDERSHAN REDDY, J.]
of jurisdiction by the High Court. But it cannot be said that the A
..-, High Court has no jurisdiction to permit any intervener opposing
the suspension of sentence and grant of bail by it in exercise
of its power under Section 389 of the Code.
12. It is true that when a convicted person is sentenced to
B
a fixed period of sentence and when he· files an appeal u~der
any statutory right, suspension of sentence can be considered
~
by the appellate Court liberally unless there are exceptional
circumstances. 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 c
motion for expeditious hearing of the appeal is made in such
cases. Otherwise, the very valuable right of appeal would be
an exercise in futility by efflux of time [see Bhagwan Rama
Shinde Gosai & Ors. Vs. State of Gujarat2]. But, suspension
of sentence, pending any appeal by a convicted person and D
consequential release on bail is not a matter of course. The
appellate Court is required to record reasons in writing for
suspending the sentence and release of a convict on bail
pending the appeal. Therefore, the only question that falls for
our consideration in the instant case· is whether the High Court E
has taken into consideration all the facts and recorded any
reason directing the release of the respondent pending the
appeal preferred by him challenging his conviction by the trial
Court?
F
13. There is no dispute that the respondent herein is
involved in more than one case of similar nature of rioting etc.
This fact has not been taken into consideration at all by the Higtl
Court. The High Court did not even suspend the execution of
the sentence awarded by the trial Court but directed his release
t on bail. The High .Court was obviously impressed by the G
singular fact that the respondent is a sitting M.LA. The High
Court did not record even a single reason confining the relief
of releasing on bail only to the respondent, though there are two
2. <1999) 4 sec 421. H·
852 · SUPREME COURT REPORTS
A appella'f1ts in the appeal preferred challenging the judgment of
the trial Court. What are the reasons for confining the relief only
to the respondent herein and directing his release? The only
reason appears to be the fad that the respondent is a sitting
M.L.A. The law does not make any distinction between the
8 representatives of the people and others, accused of criminal
offences. Neither they can claim any privilege nor can it be
granted by any Court. The law treats all equally;
14. In our considered opinion, the High Court ought to have
taken the serious nature .of allegations, the findings recorded
C by the trial Court and the alleged involvement of the respondent
in more than one case, for deciding as to whether it is a fit case
for suspending the sentence awarded by the trial Court and his
release on bail during the pendency of the appeal. The
impugned order does not record any reason whatsoever except_
D vague observation that nature of allegations have been taken
l
into consideration. The order clearly reflects that the High Court
was mainly impressed by the fact that the respondent is a
sitting M.L.A. In the circumstances, we find it difficult to sustain
the order.
E
15. For the aforesaid reasons, the impugned order is set
aside and the matter is remitted to the High Court for its fi:-esh
consideration in accordance with law. We make it clear that we
have not expressed any opinion whatsoever as to whether it is
a fit case for the suspension of sentence of the respondent No.
F 1 during the pendency of the appeal and for release on bail. It
is for the High Court to arrive at a proper conclusion for whh:;h
purpose, reasons are required to be recorded.
16. The appeal is allowed accordingly.
G
D.G. Appeal allowed.
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