IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.VINOD CHANDRAN ZIYAD RAHMAN A.A., JJ.
Crl.M.Appl. No. 1 of 2019 in Crl.Appeal No. 741 of 2019; 22nd day of June, 2021
ABDUL NAZER
v.
STATE OF KERALA
Petitioner Advocate : K.RAKESH RESPONDENT AND ADVOCATE; Respondent Advocate : PUBLIC PROSECUTOR
O R D E R
Ziyad Rahman A.A., J.
This is an application submitted under Section 389 of the Code of Criminal Procedure, 1973 seeking suspension of the sentence imposed by the Special Court for the Trial of Offences Against Children (Additional Sessions Court-1), Manjeri (hereinafter referred to as ‘Special Court/Judge’).
2. The petitioner/appellant is the accused in S.C.No.681 of 2014 which was tried for the offences under Section 376(2)(f)(i) of the Indian Penal Code (IPC) and under Section 5(l), (m) and (n) r/w. Section 6 of the Protection of Children From Sexual Offences Act (POCSO Act).
3. The prosecution case is that, the petitioner/appellant had sexually assaulted the victim, who is a girl aged 11 years. The allegation against the petitioner is that, the victim, who was studying in the Rajas School, Kottakkal, was taken by him in a car on 4.11.2014 and committed penetrative sexual assault. The said sexual assault repeated on subsequent days ie. on 5.11.2014 and 6.11.2014, with more intensity.
4. After the trial, the Special Court found the petitioner/appellant guilty of the offences punishable under Section 376 IPC and also under Section 4 r/w Section 3 of the POCSO Act.
Accordingly, he was sentenced to undergo imprisonment for life, which shall mean imprisonment for the reminder of his natural life and also for a fine of Rs.1,00,000/-. Now the petitioner/accused is in custody.
5. This appeal was admitted on 10.06.2019. Now the learned counsel for the petitioner/appellant prays for an order in the above application by seeking suspension of sentence.
6. We heard the learned Special Public Prosecutor also, who opposed the said prayer.
7. The Hon’ble Supreme Court in the judgment reported in Preet Pal Singh v. State of Uttar Pradesh and Another (2020(8) SCC 645), at paragraph 36, held as follows:
“36. There is a difference between grant of bail under S.439 of the CrPC in case of pre – trial arrest and suspension of sentence under S.389 of the 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 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. and Anr. (supra). 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 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 sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in S.389(1) of the Cr.P.C.”
8. Thus going by the principles set out by the Hon’ble Supreme Court in the above judgment, in order to grant bail to the petitioner during the pendency of the appeal, this Court has to consider whether there exists any strong compelling reasons for granting bail. We have anxiously gone through the findings of the learned Special Judge and also have perused the records, by keeping the above principles in mind.
9. It is discernible from the records that, the conviction of the petitioner was mainly relying upon the evidence of PW6. A bare perusal of the records would reveal that, victim had narrated categorically the incidents happened on the relevant dates. The evidence of PW6 is also corroborated by the other evidence, oral, documentary as well as scientific. It is evident that, the learned Special Judge had meticulously considered all the relevant materials and came to the conclusion as to the guilt of the petitioner/appellant and prima facie, we do not find any reason to ignore the same, for the purpose of this application . Thus, we find no compelling reasons to pass an order for suspending the sentence at the moment. It is also discernible from the contents of the application submitted by the petitioner that, no specific reasons are cited by the petitioner for supporting the prayer for his release, but on the other hand, he relied upon the contentions put forward in the memorandum of appeal. As mentioned above, on a perusal of the records, including the grounds raised in the above appeal, we find no reasons to pass an order suspending the sentence of the petitioner for the time being. Accordingly, the above Criminal Miscellaneous Application is dismissed. However, it is made clear that, this order shall not preclude the petitioner/appellant from approaching this Court again for interim bail upon specific contingencies, during the pendency of the appeal.