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Subhash Mandal vs The State Of Bihar on 15 May, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.2363 of 2017
Arising Out of PS. Case No.-47 Year-2009 Thana- PRANPUR District- Katihar

Subhash Mandal Son of Sudama Krishna Mandal, Resident of Village Parsa,
P.S. Pranpur, District- Katihar.

… … Appellant/s
Versus
The State Of Bihar

… … Respondent/s

with
CRIMINAL APPEAL (SJ) No. 2522 of 2017
Arising Out of PS. Case No.-47 Year-2009 Thana- PRANPUR District- Katihar

1. Shantosh Kumar Chaudhary and Anr S/o Late Ashok Kumar Chaudhary.

2. Satish Kumar Chaudhary, S/o Late Ashok Kumar Chaudhary. Both R/o
Village- Dogachhi, P.S.- Manihari, District- Katihar.

… … Appellant/s
Versus
The State Of Bihar

… … Respondent/s

Appearance :

(In CRIMINAL APPEAL (SJ) No. 2363 2522 of 2017)
For the Appellant/s : Mr. Y. V. Giri, Sr. Advocate
Mr.Md. Musowir, Advocate
Mr. Pranav Kumar, Advocate
Mr. Rajat Kumar Tiwari, Advocate
Mr. Sumit Kumar Jha, Advocate
Mr.Arvind Kumar Sinha, Advocate
For the Respondent/s : Mr.Sri Shyed Ashfaque Ahmad, APP
For the Respondent/s : Mr.Harish Chandra Patel, Advocate
Mr. Rajiv Ranjan, Advocate
Mr. Sharda Nand Mishra, Advocate

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER

9 15-05-2019 Heard learned counsel for the petitioners as well as

learned APP.

2. Against the judgment of conviction and sentence

dated 28/31-07-2017 relating to S.T. No. 351/2010 passed by
Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019
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Additional Sessions Judge-FTC-II, Katihar holding the accused

guilty for an offence punishable under Section 376, Section342 of the

IPC and directed to undergo RI for 8 years as well as to pay fine

along with default clause under Section 376 IPC, no separate

sentence was passed with regard to Section 342 IPC, the

convicts have preferred three Criminal Appeals (SJ) Nos.

2828/2017, 2663/2017 and 2522/2017. After admission of the

respective appeals, prayer for bail was made at their end asking

for suspension of sentence till pendency of the respective

appeals and, after considering the materials available on the

record, vide order dated 21.12.2017, the same was rejected.

3. It is apparent that on behalf of appellants of Cr.

Appeal (SJ) No. 2363/2017 an Interlocutory Application bearing

No. 02/2019 has been filed in order to stay of realization of fine

till pendency of the appeal under the garb of principle decided

by the Apex Court in the case of Satyendra Kumar Mehra v.

State of Jharkhand reported in 2018(2) PLJR 260 SC.

4. Heard.

5. Allowed. Accordingly, the realization of fine is

stayed till pendency of the appeal. Consequent thereupon, I.A

No. 02/2019 is allowed.

6. Prayer for bail has been renewed at the end of
Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019
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appellants of Cr. Appeal (SJ) No. 2522/2017 by way filing an

I.A. No. 01/2019. Furthermore, I.A. No. 02/2019 has also been

filed asking for stay of realization of fine till pendency of appeal

as the memo of appeal lacks the same. Seeing no impediment in

between, it is ordered that there should be stay of realization of

fine till pendency of instant appeal. Accordingly, I.A.

No.02/2019 stand allowed.

7. Learned senior counsel while stressing upon and

justifying the prayer of the appellants, namely, Santosh Kumar

Chaudhary, Satish Kumar Chaudhary, has submitted that

irrespective of rejection of the prayer for bail at an earlier

occasion, successive petitions are maintainable without any

restriction in the background of the fact that the order impugned

could not be said to be the final order rather, it happens to be out

and out an interlocutory order and further, guided by so many

intervening incidents. Furthermore, it has also been submitted

that prayer has been revived as is legally entertainable, more

particularly, when the appellants are under custody and there

happens to be no prospect on early hearing on account of over

burdened docket.

8. In order to properly assist the Bench, learned

senior counsel for the appellant has submitted that two
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judgments of the Hon’ble Apex Court is frequently

misinterpreted/misconstrued while rejecting the prayer for bail

at post conviction stage. Before coming to that judgment, it has

been submitted that different provisions for filing of an appeal

has to be considered and in likewise manner, the legal

implication relevant thereto.

9. Citing the case of SectionJumman ors v. State of

Punjab reported in AIR 1957 SC 469, it has been submitted at

the end of learned counsel for the appellants that First Appeal is

in continuation of trial which, the Hon’ble Apex Court in the

aforesaid decision has conclusively held, more particularly, in

the background of presence of so many provisions including

that of Section 391 CrPC which virtually, if allowed, identifies

the appellate court as a trial court. In the aforesaid background,

it has been submitted that mere pendency of first appeal against

the judgment of conviction would not spare rather, in its strict

sense irrespective of being convicted and sentenced, would not

allow the separate identity as Criminal Appeal though, in terms

of Section 374 of the CrPC could be and in likewise manner, the

prayer for bail is entertainable under Section 389(1) CrPC but

the carode of consideration will be akin to Section 439 CrPC

(pre-conviction stage) if the sentence happens to be beyond the
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parameter of Sub-Section-3 of the Section 389 CrPC. Under

the garb of aforesaid submission having been at the end of

learned senior counsel for the appellants, it has been submitted

that in a case SectionState of M.P. v. Kajad reported in (2001) 7 SCC

673 wherein some sort of embargo has been prescribed was in

the background of nature of the case relating to NDPS and more

particularly, Section 37 was very much there along with clutch

over consideration of prayer for bail.

10. It has also been submitted that in SectionSidhartha

Vashisht @ Manu Sharma v. State of (NCT of Delhi) reported

in (2008) 5 SCC 230, popularly known as Jessica Lal’s murder

case, whatsoever embargo was prescribed, that was on account

of concurrent findings of the trial court as well as appellate

court, that means to say, from the court of first appellate court,

the judgment of conviction and sentence has been affirmed. So,

the restrictions so imposed in the aforesaid judgment was

relating to second appeal and so, it was not of universal

application. So, it has been submitted that even though there

happens to be basic difference, the aforesaid judgments are

being frequently mis-interpreted.

11. It has also been submitted that Section 389(1)

CrPC deals with two kinds of eventualities. The first one is
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grant of bail after staying sentence till pendency of appeal,

while the another part deals with stay of conviction till

pendency of the appeal. So far stay of conviction is concerned,

there happens to be consistency that in ordinary course of

nature, it would not be unless and until there happens to be

exceptional circumstance and for that, certain criterion have

been laid down. With regard to suspension of sentence, again

there happens to be uniformity with consistency that whenever

there happens to be delay in disposal of the appeal and appellant

has remained in custody for sufficient time irrespective of

nature of the offence whereunder appellant has been convicted,

should be released on bail under the garb of SectionArticle 21 of the

Constitution of India. The procedure for consideration of the

prayer has been laid down by the Hon’ble Apex Court

identifying the gravity of the offence as well as tenure of the

sentence in SectionAtul Tripathi v. State of U.P reported in (2014) 9

SCC 177 but, it did not speak with regard to presence of any

kind of hurdle in releasing the appellant on bail in case, he

remained under custody for sufficient time and there happens to

be no prospect of appeal being heard in near future.

12. However, learned Senior Counsel fairly

submitted that no yardstick has been framed by the Apex Court,
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though, certainly it should have been in consonance with the

gravity of the offence. The learned Senior Counsel also

submitted that after prescribing the mode of consideration in

Atul Tripathi’s case (supra) the Hon’ble Apex Court has

bifurcated the issue in two parts, sentence having more than 10

years and , upto 10 years. Certainly, there would be gravity

where sentence is more than 10 years and so, during course of

consideration certain guideline has been prescribed while upto

10 years, no such abdulent is visible. That means to say,

impliedly, the Hon’ble Apex Court has prescribed two kinds of

yardstick for consideration of prayer for bail in terms of Section

389(1) of the CrPC in consonance with the infliction of sentence

up to 10 years, more than 10 years, that means to say, the

question has been positively settled at rest.

13. Furthermore, it has also been submitted that while

the matter was considered in Kashmira Singh’s Case reported

in (1977) 4 SCC 291, the same was decided having fragrance of

SectionArticle 21 of the Constitution which has been followed by the

Full Bench of our own High Court in Anurag Baitha’s case

reported in AIR 1987 Pat 274. In its continuity learned counsel

for the appellant also referred the case of SectionAngana v. State of

Rajasthan reported in (2009) 3 SCC 767, Bhagwan Rama
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Shinde Gosai v. State of Gujarat (1999) 4 SCC 421, SectionChandra

Shekhar Bharti v. State of Bihar, 2014 (2) PLJR 756.

14. On the other hand, learned APP though

controverted the submissions made on behalf of learned senior

counsel for the appellants but has submitted that an order under

Section 389(1) CrPC on no stretch of imagination could be

considered as final order, on account thereof, prayer could be

revived/renewed without any clutch. Even in the case of State

of MP v. Kajad reported in (2001)7 SCC 673 on the basis of

which a Division Bench decision of this Court in Satendra

Singh v . The State of Bihar reported in 2019 (1) PLJR 608, is

based, also did not prohibit, however, inferred that it should be

in exceptional circumstance as well as in the background of

perversity in the judgment impugned.

15. Furthermore, it has also been submitted that mere

custody of a convict could not be considered as bench mark

though, it may be one of the grounds, more particularly, in

consonance with the length of sentence coupled with gravity of

the offence. Furthermore, it has also been submitted that during

consideration of the aforesaid theme in proportionate way over

inadequacy of infliction of proper sentence in consonance with

the gravity of the offence is also be considered in the
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background of the fact that now-a-days, there happens to be

complete disregard of the sentencing policy properly explained

times without number by the Hon’ble Apex Court and so, the

overall situation is to be properly perceived at post conviction

stage, more particularly, in the background of erosion of basic

jurisprudence of the criminal law that accused is innocent till he

is convicted. In the aforesaid background, it has been submitted

that being the culprit of gang rape, appellants did not deserve

bail after suspending the sentence till pendency of appeal.

16. After patient hearing over sagital issue, two

points have been identified requiring properly answered. The

first one whether renewal of prayer is permissible or not and the

second one that period of custody be a sole yardstick for grant

of bail at post conviction stage in accordance with Section

389(1) CrPC. In order to properly appreciate the point no.1,

Section 389(1) is to be quoted which is as follows:-

13. “S.- 389. Suspension of sentence pending
the appeal; release of appellant on bail.-

(1) Pending any appeal by a convicted
person, the Appellate Court may, for reasons to be
recorded by it in writing, order that the execution of
the sentence or order appealed against be suspended
and, also, if he is in confinement, that he be released
on bail, or on his own bond.

[Provided that the Appellate Court shall,
before releasing on bail or on his own bond a
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convicted person who is convicted of an offence
punishable with death or imprisonment for life or
imprisonment for a term of not less than ten years,
shall give opportunity to the Public Prosecutor for
showing cause in writing against such release:

Provided further that in cases where a
convicted person is released on bail it shall be open to
the Public Prosecutor to file an application for the
cancellation of the bail.

17. SectionIn State of Rajasthan v. Salman Salim Khan

reported in (2015) 15 SCC 666, it has been observed as

follows:-

“17. In State of Tamil Nadu v. A.

Jaganathan (1996) 5 SCC 329 this Court held
that power to suspend conviction and sentence
pending appeal/revision can be exercised only
when damage caused to the Appellant/revisionist
cannot be undone if he ultimately succeeds.

18. Similar observation was made by this
Court in SectionRavikant S. Patil v. Sarvabhouma S.
Bagali (2007) 1 SCC 673. In the said case, this
Court held:

“15. It deserves to be clarified that an
order granting stay of conviction is not the
rule but is’ an exception to be resorted to in
rare cases depending upon the facts of a
case. Where the execution of the sentence is
stayed, the conviction continues to operate.
But where the conviction itself is stayed, the
effect is that the conviction will not be
operative from the date of stay. An order of
stay, of course, does not render the
conviction non-existent, but only non-

operative. Be that as it may. Insofar as the
present case is concerned, an application
was filed specifically seeking stay of the
order of conviction specifying the
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consequences if conviction was not stayed,
that is, the Appellant would incur
disqualification to contest the election. The
High Court after considering the special
reason, granted the order staying the
conviction. As the conviction itself is stayed
in contrast to a stay of execution of the
sentence, it is not possible to accept the
contention of the Respondent that the
disqualification arising out of conviction
continues to operate even after stay of
conviction”.

19. Referring to other decisions of this
Court, in Ravikant S. Patil this Court further
observed:

‘16.5. All these decisions, while
recognising the power to stay
conviction, have cautioned and
clarified that such power should be
exercised only in exceptional
circumstances where failure to stay the
conviction, would lead to injustice and
irreversible consequences.’

18. As referred hereinabove, from plain reading of

Section 389(1) CrPC, there happens to be no visibility of any

kind of embargo over availing the liberty. Had there been an

intention at the end of legislature, certainly there would have

been restriction as, SectionCrPC itself possesses relevant provisions

whereunder such kind of prohibition has been prescribed, such

as no appeal against petty nature of sentence, no second appeal

before the High Court, no revision against an interlocutory order

etc.

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19. That being so, it could not be said that once

rejected, it ultimately dooms the fate of the appellant in

renewing the prayer under Section 389(1) CrPC. Even in

Satendra Singh v . The State of Bihar reported in 2019 (1)

PLJR 608 wherein para-Section8 of State of MP v. Kajad (supra) has

been referred, finally concluded under para-14 as follows:-

“14. ……… The Hon’ble Supreme Court
has already observed that such power should be
exercised in exceptional cases. Meaning thereby
that in appeal, grant of suspension of sentence is
“Exception”, whereas, rejection of prayer for
suspension of sentence is “Rule”. Accordingly, in
normal course, in appeal, there is no reason to
entertain the prayer for suspension of sentence or
granting bail, unless the case is of exceptional
nature and also there is perversity in the judgment
of conviction and sentence.”

20. SectionIn Babu Singh Ors v. State of U.P. reported in

(1978) 1 SCC 579, it has been held as follows:-

” 17. The significance and sweep of SectionArticle
21 make the deprivation of liberty a matter of
grave concern and permissible only when the law
authorising it is reasonable, even-handed and
geared to the goals of community good and State
necessity spelt out in Art- 19. Indeed, the
considerations I have set out as criteria are
germane to the constitutional proposition I have
deduced. Reasonableness postulates intelligent
care and predicates that deprivation of freedom
by refusal of bail is not for punitive purpose but
for the bifocal interests of justice-to the
individual involved and society affected.

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18. We must weigh the contrary factors to
answer the test of reasonableness, subject to the
need for securing the presence of the bail
applicant. It makes sense to assume that a man
on bail has a batter chance to prepare or present
his case than one remanded in custody. And if
public justice is to be promoted, mechanical
detention should be demoted. In the United
States, which has a constitutional perspective
close to ours, the function of bail is limited,
‘community roots’ of the applicant are stressed
and, after the Vera Foundation’s Manhattan Bail
Project, monetary suretyship is losing ground.
The considerable public expense in keeping in
custody where no danger of disappearance or
disturbance can arise, is not a negligible
consideration. Equally important is the
deplorable condition, verging on the inhuman, of
our sub-jails, that the unrewarding cruelty and
expensive custody of avoidable incarceration
makes refusal of bail unreasonable and a policy
favouring release justly sensible.

19. A few other weighty factors deserve
reference. All deprivation of liberty is validated
by social defense and individual correction along
an anti-criminal direction, public justice is
central to the whole scheme of bail law. Fleeing
justice must be forbidden but punitive harshness
should be minimised. Restorative devices to
redeem the man, even through community
service, meditative drill, study classes or other
resources should be innovated, and playing foul
with public peace by tampering with evidence,
intimidating witnesses or committing offences
while on judicially sanctioned ‘free enterprise’,
should be provided against. No seeker of justice
shall play confidence tricks on the court or
community. Thus, conditions may be hung
around bail orders, not to cripple but to protect.
Such is the holistic jurisdiction and humanistic
orientation invoked by the judicial discretion
correlated to the values of our constitution.
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21. The second questionnaire is the backbone of the

issue and needs extra attention. In Atul Tripathi’s case (supra)

under para-15, criteria has been laid down but that relates to

where the sentence is 10 years and above, and so, goes out of

consideration as the matter in hand relates with sentence upto 10

years .

22. Before coming over citations having at the end of

the appellants, the submissions of the learned senior counsel for

the appellant that SectionSidhartha Vashisht @ Manu Sharma v. State

of (NCT of Delhi) reported in (2008) 5 SCC 230 has laid down

the principle in the background of stage of the appeal/second

appeal having concurrence of judgment of conviction and

sentence to the Supreme Court and in the aforesaid background,

in para-16 certain observations detrimental to the interest of the

appellant has been passed, could not be applicable in the present

circumstance. It is needless to say that though, the matter was

before the Apex Court relating to murder, that too under second

appeal, special principle so laid down deals with the method as

to how to consider the prayer after post conviction stage and for

better appreciation, the same is quoted below:-

“32. In the above cases, it has been
observed that once a person has been convicted,
normally, an appellate Court will proceed on the
basis that such person is guilty. It is no doubt true
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that even thereafter, it is open to the appellate
Court to suspend the sentence in a given case by
recording reasons. But it is well settled, as
observed in Vijay Kumar that in considering the
prayer for bail in a case involving a serious
offence like murder punishable under Section
302, SectionIPC, the Court should consider all the
relevant factors like the nature of accusation
made against the accused, the manner in which
the crime is alleged to have been committed, the
gravity of the offence, the desirability of
releasing the accused on bail after he has been
convicted for committing serious offence of
murder, etc. It has also been observed in some of
the cases that normal practice in such cases is not
to suspend the sentence and it is only in
exceptional cases that the benefit of suspension
of sentence can be granted.

33. In Hasmat, this Court stated;

6. Section 389 of the Code deals with
suspension of execution of sentence pending the
appeal and release of the applicant on bail. There
is a distinction between bail and suspension of
sentence. One of the essential ingredients of
Section 389 is the requirement for the Appellate
Court to record reasons in writing for ordering
suspension of execution of the sentence or order
appealed. If he is in confinement, the said Court
can direct that he be released on bail or on his
own bond. The requirement of recording
reasons in writing clearly indicates that there
has to be careful consideration of the relevant,
aspects and the order directing suspension of
sentence and grant of bail should not be passed
as a matter of routine.

(emphasis supplied)

34. The mere fact that during the period of
trial, the accused was on bail and there was no
misuse of liberty, does not per se warrant
suspension of execution of sentence and grant of
bail. What really necessary is to consider
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whether reasons exist to suspend execution of the
sentence and grant of bail.”

23. SectionIn Bhagwan Rama Shinde Gosai v. State of

Gujarat reported in AIR 1999 SC 1859, it has been held as

follows:-

“3. When a convicted person is
sentenced to fixed period of sentence and when
he files 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 limited duration cannot be suspended
every endeavour should be made to dispose of
the appeal on merits more so when motion for
expeditious hearing the appeal is made in such
cases. Otherwise the very valuable right of appeal
would be an exercise in 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 must bestow
special concern in the matter suspending the
sentence, so as to make the appeal right
meaningful and effective. Of course appellate
courts can impose similar conditions when bail is
granted.

24. SectionIn Kashmira Singh v. State of Punjab reported in

(1977) 4 SCC 291 which happens to be the sheet anchor of the

present theme wherein during course of consideration of the

prayer entitlement of a convict in terms of SectionArticle 21 has been
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properly acknowledged the Apex Court has observed as

follows:-

” 2. The appellant contends in this
application that pending the hearing of the appeal
he should be released on bail. Now, the practice
in this Court as also in many of the High Courts
has been not to release on bail a person who has
been sentenced to life imprisonment for an
offence under Section 302 of the Indian Penal
Code. The question is whether this practice
should be departed from and if so, in what
circumstances. It is obvious that no practice
howsoever sanctified by usage and hallowed by
time can be allowed to prevail if it operates to
cause injustice. Every practice of the Court must
find its ultimate justification in the interest of
justice. The practice not to release on bail a
person who has been sentenced to life
imprisonment was evolved in the High Courts
and in this Court on the basis that, once a person
has been found guilty and sentenced to life
imprisonment-, he should not be let loose, so long
as his conviction and sentence are not set aside,
but the underlying postulate of this practice was
that the appeal of such person would be disposed
of within a measurable distance of time, so that if
he is ultimately found to be innocent, he would
not have to remain in jail for an unduly long
period. The rationale of this practice can have no
application where the Court is not in a position to
dispose of the appeal for five or six years.

It would indeed be a travesty of justice to
keep a person in jail for a period of five or six
years for an offence which is ultimately found not
to have been committed by him. Can the Court
ever compensate him for his incarceration which
is found to unjustified ? Would it be just at all for
the Court to tell a person: “We have admitted
your appeal because we think you have a prima
facie case, but unfortunately we have no time to
hear your appeal for quite a few years and,
therefore, until we hear your appeal, you must
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remain in jail, even though you may be
innocent ?” What confidence would such
administration of justice inspire in the mind of
the public ? It may quite conceivably happen and
it has in fact happened in a few cases in this
Court, that a person may serve out his full term of
imprisonment before his appeal is taken up for
hearing. Would a judge not be overwhelmed with
a feeling of contrition while acquitting such a
person after hearing the appeal ? Would it not be
an affront to his sense of justice ? Of what avail
would the acquittal be to such a person who has
already served out his term of imprisonment or at
any rate a major part of it ? It is, therefore,
absolutely essential that the practice which this
Court has been following in the past must be
reconsidered and so long as this Court is not in a
position to hear the appeal of an accused within a
reasonable period of time, the Court should
ordinarily, unless there are cogent grounds for
acting otherwise, release the accused on bail in
cases where special leave has been granted to the
accused to appeal against his conviction and
sentence.

25. SectionIn Kishori Lal v. Rupa, (2004) 7 SCC 638 : It

has been observed as follows:-

6. The mere fact that during the trial, they were
granted bail and there was no allegation of
misuse of liberty, is really not of much
significance. The effect of bail granted during
trial loses significance when on completion of
trial, the accused persons have been found guilty.

The mere fact that during the period when the
accused persons were on bail during trial there
was no misuse of liberties, does not per se
warrant suspension of execution of sentence and
grant of bail. What really was necessary to be
considered by the High Court is whether reasons
existed to suspend the execution of sentence and
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thereafter grant bail. The High Court does not
seem to have kept the correct principle in view

7. A similar question was examined in State of
Haryana v. Hasmat [(2004) 6 SCC

8. SectionIn Vijay Kumar v. Narendra [(2002) 9 SCC
364 : 2003 SCC (Cri) 1195] and SectionRamji Prasad v.
Rattan Kumar Jaiswal [(2002) 9 SCC 366 : 2003
SCC (Cri) 1197] it was held by this Court that in
cases involving conviction under Section 302
IPC, it is only in exceptional cases that the
benefit of suspension of sentence can be granted.
The impugned order of the High Court does not
meet the requirement. In Vijay Kumar case
[(2002) 9 SCC 364 : 2003 SCC (Cri) 1195] it was
held that in considering the prayer for bail in a
case involving a serious offence like murder
punishable under Section 302 IPC, the court
should consider the relevant factors like the
nature of accusation made against the accused,
the manner in which the crime is alleged to have
been committed, the gravity of the offence, and
the desirability of releasing the accused on bail
after they have been convicted for committing the
serious offence of murder. These aspects have not
been considered by the High Court, while passing
the impugned order.

26. SectionIn Vijay Kumar vs. Narendra, : (2002) 9 SCC 364, it

has been observed as follows:

“10. … ……. The principle is well settled that in
considering the prayer for bail in a case involving
a serious offence like murder punishable under
Section 302 IPC, the court should consider the
relevant factors like the nature of the accusation
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made against the accused, the manner in which
the crime is alleged to have been committed, the
gravity of the offence, and the desirability of
releasing the accused on bail after they have been
convicted for committing the serious offence of
murder.”

27. In the background of principle laid down by

the Hon’ble Apex Court in Kashmira Singh’s case (supra) the

matter has come up for consideration before the Full Bench in

Anurag Baitha’s case and even thereafter, the matter has been

found to some relevance on account of absence of uniformity of

the scale and that happens to be reason behind that once again

the matter has come up before the Division Bench in the case of

SectionChandra Shekhar Bharti v. State of Bihar reported in 2014(2)

PLJR 756. After discussing the matter in detail, ultimately, it

has been concluded under para-111, concurred by another

member of the Bench which is as follows:-

“111. The discussion, undertaken hereinbefore,
may be summarized as follows:–

a. While considering an application for
suspension of sentence, the Appellate Court has to
record reasons, in writing. The requirement of
recording of reasons must be preceded by careful
consideration of the relevant aspects of the case at
hand including issues of human rights or other relevant
aspects as envisaged under SectionArticle 21 of the
Constitution of India.

b. The mere fact that during the period, when
an accused person was on bail during trial, there was
no misuse of liberty does not per se warrant
suspension of execution of sentence and grant of bail.

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What really is necessary to be considered by the Court
is whether reasons exist, on the merits of the case, to
suspend the execution of sentence and, thereafter,
grant bail to the appellant.

c. During pendency of an appeal against
conviction or sentence or both, temporary or interim or
provisional suspension of sentence, on some extremely
rare circumstances, is inherent in the jurisdiction of the
Appellate Court, under Sec. 389 SectionCr.P.C, by the
doctrine of implied power. Such a recourse must be
taken only when pressing circumstances are shown to
exist and when the Court is of the opinion that further
inquiry would be required before finally disposing of
the application for suspension of sentence pending
decision on the convict’s appeal.

d. it may be equally necessary to mention that
circumstances, which show existence of a right within
the ambit SectionArticle 21 of the Constitution of India, may
be considered as valid circumstances, while granting
interim suspension pending disposal of an appellant’s
application seeking suspension of sentence and bail.

e. Notwithstanding the fact that a prisoner’s
application for suspension of sentence and his
consequent release on bail cannot be allowed on merit
or has been rejected on merit, the Appellate Court still
retains the power to suspend sentence for such period
as the Court may consider imperative, particularly,
when the Court finds that such suspension of sentence
would make the right to life, guaranteed by SectionArticle 21,
meaningful. Thus, inordinate delay, in disposal of
appeal, terminal ailments, marriage of daughter,
performing last rites, etc., are circumstances falling in
the broader definition of “right to life” and can become
valid grounds for suspension of sentence of a prisoner
and his. release on bail for a temporary period or until
disposal of his substantive appeal.”

28. SectionIn Suddu Kumar v. State of Bihar as reported in

2017 (3) BLJ 47 (HC), again same question cropped up for

consideration, that means to say entitlement of a convict to be

released on bail after suspending the sentence in accordance
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22/35

with Section 389(1) CrPC and during course of consideration

the Division Bench considered the criteria having been laid

down by single judge in connection with Cr. Appeal (SJ) No.

167/2015 (Ubed, son of SectionLatifur Rahman v. The State of Bihar)

and amulet the same in following manner:-

“15. Considering the Supreme Court
decision in the case of Surinder Singh (Supra), a Full
Bench decision of this Court in the case of SectionAnurag
Baitha v. The State of Bihar, reported in 1987 PLJR
485, and taking note of observations made by Supreme
Court in the case of SectionKashmira Singh v. The State of Punjab ,
reported in (1977) 4 SCC 291, a Single Bench of this
Court, dealing with the issue of suspension of sentence
during the pendency of appeal on the ground of the
Court’s inability to take up final hearing of criminal
appeals, recently in an order, dated 30.01.2017, in
Criminal Appeal (S.J.) 167 of 2015 (Ubed, son of
SectionLatifur Rahman v. The State of Bihar ), has concluded that
inordinate delay in hearing on substantive appeals
because of Court’s inability to do so would be
extremely relevant factor for grant of bail, and
undoubtedly, it would be a good reason to state that
there is no practicable possibility of expeditious
hearing of the appeal. The Single Bench has held in
paragraph nos. 23 and 24 as follows:-

“23. I am further of the view, taking cue from the law
laid down by the Full Bench of this Court, in case of
Anurag Baitha (supra), and the Supreme Court
decision, in case of Surinder Singh Alias Shingara
Singh (supra), that in case where the sentence of
imprisonment for a term of 10 years, if the appellant
has remained in custody post-conviction for a period
of 2 years and has remained in custody for a period of
5 years altogether, his application for suspension of
sentence and release on bail will be required to be
considered favourably except in exceptional
circumstance. If the sentence is for a term less than 10
Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019
23/35

years and if the appeal is not taken up within a period
of 1 years of presentation of the appeal and the
convict has remained in custody half the period of
sentence, his case for suspension of sentence will be
required to be considered favourably.

24. I sum up my discussions as follows:

(i) An appellant convicted of a criminal offence,
whose appeal is ending, shall be entitled to a
favourable consideration for his liberty and grant of
bail on suspension of sentence on the ground of
inordinate delay in hearing of the substantive appeals
because of the Court’s own inability to hear the
appeals. There cannot be any straightjacket formula
and hard and fast rule of universal application for
consideration of bail in such situation. The discretion
always lies with the Court to allow or reject any plea
for grant of bail during the pendency of appeal, in the
background of nature of the case and other attending
circumstances.

(ii) Ordinarily, if the appellant has spent half of the
term of sentence in custody, in connection with a case,
before conviction and after conviction taken together
and his appeal is not likely to be heard on merits in
near future, he should be released on bail on the
ground of possible delay in disposal of the appeal.

(iii) In any event, if the appellant has remained in
custody for two (2) years or more after conviction and
awaiting for turn of his appeal to come for final
hearing and there is no likelihood of the appeal being
taken up in near future, his case for release on bail
would need favourable consideration on that ground.

(iv) Barring in peculiar and exceptional circumstance,
when conviction is for a period of five (5) years or
less, the appellant should be admitted to bail at the
stage of admission.

(v) This will, however, not apply in case of peculiar
and exceptionally heinous crimes.

(vi) In order to make out a case for suspension of
sentence, on the ground of delay in hearing of
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24/35

substantive appeals, a party will have to establish that
despite effective steps having been taken by him/her
for getting the appeal heard, his prayer for expeditious
hearing could not be acceded to.”

29. From plain reading of the Section, it is apparent

that neither it speaks about its finality nor being an interlocutory

one or inter-mediary one as the exercise of power, up to 10 years

of sentence is not at all found to be barricaded one, though

exceeding 10 years contains mechanism to be followed during

course of consideration. Moreover, the activities are found duly

influenced with either suspension of conviction or suspension of

sentence. It is needless to say that both has got independent

identity and have got different yardstick for consideration. So

far issue in hand is concerned, it is with regard to suspension of

sentence till pendency of an appeal followed with grant of bail,

hence, another fact of Section 389(1) regarding suspensions of

conviction is being left henceforth.

30. In Hussain v. Union of India with Aasu v.

State of Rajasthan reported in (2017) 5 SCC 702, it has been

held as follows:-

12. Timely, delivery of justice is a part of
human rights. Denial of speedy justice is a threat
to public confidence in the administration of
justice. Directions of this Court in Noor
Mohammed v. Jethanand and Anr. : (2013) 5
SCC 202 are as follows:

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“34. …Therefore, we request the
learned Chief Justice of the High Court of
Rajasthan as well as the other learned Chief
Justices to conceive and adopt a
mechanism, regard being had to the priority
of cases, to avoid such inordinate delays in
matters which can really be dealt with in an
expeditious manner. Putting a step forward
is a step towards the destination. A sensible
individual inspiration and a committed
collective endeavour would indubitably
help in this regard. Neither less, nor more”.

13. SectionIn Thana Singh v. Central Bureau of
Narcotics : (2013) 2 SCC 590 this Court directed
that liberal adjournments must be avoided and
witnesses once produced must be examined on
consecutive dates. Directions were also issued
for setting up of sufficient laboratories, for
disposal of seized narcotics drugs and for
providing charge-sheets and other documents in
electronic form in addition to hard copies of
same to avoid delay.

14. In Akhtari Bi (supra) this Court observed as
under:

“5. …it is incumbent upon the High
Courts to find ways and means by taking steps to
ensure the disposal of criminal appeals,
particularly such appeals where the Accused are
in jails, that the matters are disposed of within
the specified period not exceeding 5 years in any
case. Regular Benches to deal with the criminal
cases can be set up where such appeals be listed
for final disposal. We feel that if an appeal is not
disposed of within the aforesaid period of 5
years, for no fault of the convicts, such convicts
may be released on bail on such conditions as
may be deemed fit and proper by the court. In
computing the period of 5 years, the delay for
any period, which is requisite in preparation of
the record and the delay attributable to the
convict or his counsel can be deducted. There
Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019
26/35

may be cases where even after the lapse of 5
years the convicts may, under the special
circumstances of the case, be held not entitled to
bail pending the disposal of the appeals filed by
them. We request the Chief Justices of the High
Courts, where the criminal cases are pending for
more than 5 years to take immediate effective
steps for their disposal by constituting regular
and special Benches for that purpose.

15. Again in SectionImtiyaz Ahmad v. State of Uttar
Pradesh and Ors. : (2012) 2 SCC 688 it was observed
that long delay has the effect of blatant violation of
Rule of law and adverse impact on access to justice
which is a fundamental right. Denial of this right
undermines public confidence in justice delivery.
These observations have been reiterated in recent
Constitution Bench judgment in Anita Kushwaha etc.
etc. v. Pushap Sudan etc. etc. : (2016) 8 SCC 509-
para(s) 31-36. In the said judgment it was noticed that
providing effective adjudicatory mechanism,
reasonably accessible and speedy, was part of access
to justice.

31. During course of consideration, the Apex Court

consistently dealt with other issue including upward mode of

crime graph, Law Commission report on that score coupled with

the basic concept of judicial service as well as legal service, and

then propagated as follows:-

29. To sum up: (29.1) The High Courts may
issue directions to subordinate courts that-

(29.1.1) Bail applications be disposed of
normally within one week;

(29.1.2) Magisterial trials, where Accused are
in custody, be normally concluded within six months and
sessions trials where Accused are in custody be normally
Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019
27/35

concluded within two years;

(29.1.3) Efforts be made to dispose of all cases
which are five years old by the end of the year;

(29.1.4) As a supplement to Section 436A, but
consistent with the spirit thereof, if an undertrial has
completed period of custody in excess of the sentence
likely to be awarded if conviction is recorded such
undertrial must be released on personal bond. Such an
assessment must be made by the concerned trial courts
from time to time;

(29.1.5) The above timelines may be the
touchstone for assessment of judicial performance in
annual confidential reports. (emphasis added)
(29.2) The High Courts are requested to ensure
that bail applications filed before them are decided as far as
possible within one month and criminal appeals where
Accused are in custody for more than five years are
concluded at the earliest;

(29.3.) The High Courts may prepare, issue and
monitor appropriate action plans for the subordinate courts;

(29.4.) The High Courts may monitor steps for
speedy investigation and trials on administrative and
judicial side from time to time;

(29.5.) The High Courts may take such
stringent measures as may be found necessary in the light
of judgment of this Court in Ex. Captain Harish Uppal
(supra).

32. However, bail was rejected with a direction to

the High Court to hear the appeal expeditiously.

33. SectionIn Mithu Pasi v. State of Jharkhand reported in

(2018) 11 SCC 196, considering the appellants having been

convicted under Section 326 IPC for causing knife injury

measuring 1.5″ x 3.4″ over the victim and for that, they were
Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019
28/35

under custody for six years against the sentence inflicted for 10

years coupled with the fact that at the time of occurrence,

appellants were aged about 19-20 years, the Hon’ble Apex

Court observed as follows:-

“2 It is common ground that the Appellants were
about 20 years of age on the date of the incident
which occurred some 19 years ago. Appellant No. 2-
Bhithan Pasi is alleged to have inflicted a knife injury
measuring 1.5″ x 3.4” inches on the victim. The
Appellants have already undergone nearly 6 years of
imprisonment without remission out of the 10 years
awarded to them by the trial court Under Section 326
of the Indian Penal Code The hearing of the appeal is
likely to take some time. In the circumstances we
deem it just and proper to direct suspension of the
remainder of the sentence awarded to the Appellants.
We accordingly direct that in case the Appellants
furnish bail bonds in a sum of ` 20,000/- each with
two sureties of the like amount to the satisfaction of
the trial court, they shall be enlarged from custody
pending the disposal of this case.

34. In the circumstances, we deem it just and proper

to direct the suspension of remainder of the sentence awarded to

the appellants.

35. SectionIn Sandeep @ Raja Acharya v. State of Orissa

reported in (2018) 11 SCC 715, wherein appellant having been

convicted under Section 302/Section34 IPC and sentenced to undergo

RI for life and further, while rejecting the prayer for bail after

suspending the sentence at the end of the Apex Court previously
Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019
29/35

directing the High Court to hear the appeal expeditiously which

could not materialized and on account thereof, appellant

remained under custody for nine years and further, having no

forciveness in getting the appeal disposed of in near future,

appellant was released on bail after suspending sentence.

36. SectionIn Ash Mohammad v. Shiv Raj Singh as

reported in (2012) 9 SCC 446, it has been observed as follows:-

“30. We may usefully state that when the
citizens are scared to lead a peaceful life and this kind
of offences usher in an impediment in establishment of
orderly society, the duty of the court becomes more
pronounced and the burden is heavy. There should
have been proper analysis of the criminal antecedents.
Needless to say, imposition of conditions is subsequent
to the order admitting an accused to bail. The question
should be posed whether the accused deserves to be
enlarged on bail or not and only thereafter issue of
imposing conditions would arise. We do not deny for a
moment that period of custody is a relevant factor but
simultaneously the totality of circumstances and the
criminal antecedents are also to be weighed. They are
to be weighed in the scale of collective cry and desire.
The societal concern has to be kept in view in
juxtaposition of individual liberty. Regard being had to
the said parameter we are inclined to think that the
social concern in the case at hand deserves to be given
priority over lifting the restriction of liberty of the
accused.

37. The principle so decided in Kashmira Singh, Smt.

Akhtari Bi and Babu Singh’s case has been considered by the

Apex Court in the case of Surinder Singh @ Shingara Singh v.

State of Punjab as reported in AIR 2005 SC 3669, wherein it
Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019
30/35

has been observed as follows:-

“9 Similar observations are found in some
of the other decisions of this Court which have
been brought to our notice. But however, it is
significant to note that all these decisions only lay
down broad guidelines which the Courts must
bear in mind while dealing with an application
for grant of bail to an appellant before the Court.
None of the decisions lay down any invariable
rule for grant of bail on completion of a specified
period of detention in custody. Indeed in a
discretionary matter, like grant or refusal of bail it
would be impossible to lay down any invariable
rule or evolve a strait jacket formula. The Court
must exercise its discretion having regard to all
the relevant facts and circumstances. What the
relevant facts and circumstances are, which the
Court must keep in mind, has been laid down
over the years by the Courts in this country in
large number of decisions which are well known.
It is, therefore, futile to attempt to lay down any
invariable rule or formula in such matters.

38. In the case of SectionKishori Lal v. Rupa: (2004)7 SCC

638, it has been held as follows:-

“4. Section 389 of the Code deals with
suspension of execution of sentence pending the
appeal and release of the appellant on bail. There is a
distinction between bail and suspension of sentence.

One of the essential ingredients of Section 389 is the
requirement for the appellate court to record reasons
in writing for ordering suspension of execution of the
sentence or order appealed against. If he is in
confinement, the said court can direct that he be
released on bail or on his own bond. The requirement
of recording reasons in writing clearly indicates that
there has to be careful consideration of the relevant
aspects and the order directing suspension of
sentence and grant of bail should not be passed as a
Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019
31/35

matter of routine.

5. The appellate court is duty-bound to
objectively assess the matter and to record reasons for
the conclusion that the case warrants suspension of
execution of sentence and grant of bail. In the instant
case, the only factor which seems to have weighed
with the High Court for directing suspension of
sentence and grant of bail is the absence of allegation
of misuse of liberty during the earlier period when the
accused-respondents were on bail.

6. The mere fact that during the trial, they
were granted bail and there was no allegation of
misuse of liberty, is really not of much significance.
The effect of bail granted during trial loses
significance when on completion of trial, the accused
persons have been found guilty. The mere fact that
during the period when the accused persons were on
bail during trial there was no misuse of liberties, does
not per se warrant suspension of execution of sentence
and grant of bail. What really was necessary to be
considered by the High Court is whether reasons
existed to suspend the execution of sentence and
thereafter grant bail. The High Court does not seem to
have kept the correct principle in view.” (Emphasis
supplied)

39. Reiterating the aforesaid theme in the case of

SectionAnil Ari v. State of West Bengal : (2009) 11 SCC 363, it has

been held as under:-

“11. SectionIn Vijay Kumar V. Narendra and
others,: (2002) 9 SCC 364 and Ramji Prasad V.

Rattan Kumar Jaiswal and another : (2002) 9
SCC 366, it was held by this Court that in cases
involving conviction under Section 302 IPC, it is
only in exceptional cases that the benefit of
suspension of sentence can be granted. In Vijay
Kumar’s case (supra) it was held that in
considering the prayer for bail in a case involving
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32/35

a serious offence like murder punishable under
Section 302 IPC, the Court should consider the
relevant factors like the nature of accusation
made against the accused, the manner in which
the crime is alleged to have been committed, the
gravity of the offence, and the desirability of
releasing the accused on bail after they have been
convicted for committing the serious offence of
murder.

12. The above position was highlighted in
SectionKishori Lal v. Rupa and Others 2004 : 2004 (7)
SCC 638], SectionVasant Tukaram Pawar v. State of
Maharashtra : 2005 (5) SCC 281] and SectionGomti v.
Thakurdas and Ors : 2007 (11) SCC 160).”

40. In the case of Atul Tripathi v. State of UP:

(2014) 9 SCC 177, it has been held as follows:

“15. To sum up the legal position,
a. The appellate court, if inclined to
consider the release of a convict sentenced to
punishment for death or imprisonment for life or for a
period of ten years or more, shall first give an
opportunity to the public prosecutor to show cause in
writing against such release.

b. On such opportunity being given, the
State is required to file its objections, if any, in
writing.

c. In case the public prosecutor does not
file the objections in writing, the appellate court shall,
in its order, specify that no objection had been filed
despite the opportunity granted by the court.

d. The Court shall judiciously consider
all the relevant factors whether specified in the
objections or not, like gravity of offence, nature of
the crime, age, criminal antecedents of the convict,
impact on public confidence in court, etc. before
passing an order for release.”

(Emphasis supplied)

41. In the case of SectionState of Punjab v. Deepak Mattu:

Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019
33/35

(2007) 11 SCC 319, it has been observed that “possible delay in

disposal of the appeal and the fact that there are arguable

points may not by itself be sufficient ground to grant

suspension of sentence.”

42. SectionIn Akhilesh Kumar Sinha v. State of Bihar:

(2000) 6 SCC 461, it has been held as follows:-

“2. ……….. A convicted person being kept in jail
pending appeal for such a long period is not a
desirable course, but it is only one side of the picture.
As the petitioner is found guilty by a trial court of the
offence under Section 302, the appellate court can
normally presume that he is prima facie guilty of the
offence as for suspending the sentence despite the
pendency of the appeal. Of course it is open to the
appellate court, even at that stage to consider whether
it is a fit case for suspending sentence despite such
presumption……….”

43. SectionIn Vijay Kumar v. Narendra: (2002) 9 SCC

364, it has been held as follows:-

“10. ………… The principle is well settled that
in considering the prayer for bail in a case involving a
serious offence like murder punishable under Section
302 IPC, the court should consider the relevant factors
like the nature of the accusation made against the
accused, the manner in which the crime is alleged to
have been committed, the gravity of the offence, and
the desirability of releasing the accused on bail after
they have been convicted for committing the serious
offence of murder.”

44. SectionIn State of Maharashtra v. Madhukar

Wamanrao Smarth : (2008) 5 SCC 721, it has been held as
Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019
34/35

follows:-

“10. The parameters to be observed by the High Court
while dealing with an application for suspension of
sentence and grant of bail have been highlighted by this
Court in many cases. SectionIn Kishori Lal v. Rupa it was observed
as follows:

“4. Section 389 of the Code deals with
suspension of execution of sentence pending the
appeal and release of the appellant on bail. There
is a distinction between bail and suspension of
sentence. One of the essential ingredients of
Section 389 is the requirement for the appellate
court to record reasons in writing for ordering
suspension of execution of the sentence or order
appealed against. If he is in confinement, the said
court can direct that he be released on bail or on
his own bond. The requirement of recording
reasons in writing clearly indicates that there has
to be careful consideration of the relevant aspects
and the order directing suspension of sentence
and grant of bail should not be passed as a matter
of routine.”

45. After going through the relevant judicial

pronouncements referred hereinabove, irrespective of the fact

that confinement of a convict at post conviction stage though,

attracts influence of SectionArticle 21 of the Constitution of India

during pendency of appeal having no prospect of early hearing

but, its consideration as sole ground for grant of bail is not at all

found rather, it may be having cumulative effect if the the facts

so warrant. On the other hand, it has been settled at rest that

during consideration of the same, all the relevant factors, that
Patna High Court CR. APP (SJ) No.2363 of 2017(9) dt. -05-2019
35/35

means to say, gravity of the offence, nature of the crime, manner

in which it was committed, age, antecedent and lastly, but

having a pivotal role during course of appreciation of public

confidence in court. Side by side, it has also been directed that a

plausible way be traced out facilitating way of early hearing of

the appeal.

46. In the aforesaid background, when the materials

having been placed during trial been gone through, restraining

to discuss the same, suggests active involvement of the

appellants, hence, did not deserve bail. Hence, rejected.

Consequent thereupon, I.A No. 2/2019 is rejected.

(Aditya Kumar Trivedi, J)
perwez

U T

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