Ashutosh v. State of M.P

Appellant :- Chandrapal Respondent :- State of U.P. Counsel for Appellant :- Manoj Kumar Srivastava Counsel for Respondent :- G.A. Hon'ble Rajeev Misra,J. Ref: On Appeal Admit. Summon the lower court record. Notice on behalf of opposite party-1 has been accepted by the learned AGA. List for hearing in due course. Ref: Order on the Application for Suspension of Sentence Heard Mr. Manoj Kumar Srivastava, the learned counsel for applicant/appellant and the learned A.G.A. for State. Perused the record. Feeling aggrieved by the judgement and order dated 04.02.2025, passed by Additional District and Sessions Judge, Court No.9, Aligarh, in Sessions Trial No.617 of 2011 (State Vs. Chandra Pal), under sections 363, 366 IPC, arising out of Case Crime No.223 of 2010, Police Station- Jawan, District- Aligarh, applicant-appellant has approached this Court by means of aforementioned criminal appeal. By means of and order, impugned applicant/appellant has been convicted under section 366 IPC and consequently, sentenced to five years imprisonment along with fine of Rs. 7,000/- and in case of default, applicant/appellant is to undergo six months additional imprisonment. judgment Learned counsel for applicant submits that applicant-appellant was initially enlarged on bail but since he absconded from the proceedings, therefore, after his arrest he was not enlarged on bail. Accordingly, applicant/appellant has filed aforesaid application for suspension of sentence/enlargement on bail during the pendency of present appeal. Learned counsel for applicant/appellant contends that thugh applicant/appellant is a convicted accused yet he is liable to be enlarged on bail. Appellant is in jail since 19.9.2024. As such, he has undergone more than one year and five months of incarceration. Referring to the judgement of Supreme Court in Atul @ Ashutosh Vs. State of M.P., (2024) 3 SCC 663 it is urged by the learned counsel for applicant/appellant that Apex Court has itself observed that where definite sentence, punishment has been awarded by Court below against accused appellant and there is no likelihood of the appeal being heard in near future, the High Court must enlarge such an accused on bail. According to the learned counsel for applicant/appellant, in view of heavy pendency of appeals before this Court, coupled with the fact that there is an acute shortage of Judges in High Court, there is no likelihood of the present appeal being heard in near future. Learned counsel for applicant submits then that applicant has solemnized marriage with prosecutrix and consequently, the prosecutrix is now the legally wedded wife of applicant. As such, applicant and the prosecutrix are living together as husband and wife. On the above premises, he, therefore, submits that criminality if any committed by appellant stands washed off therefore the criminal prosecution of applicant cannot be sustained. To buttress his submission, he has referred to the judgments of Supreme Court in the case of K. Dhandapani Vs. State by the Inspector of Police 2022 SCC Online SC 1056 and Mafat Lal and Another Vs. State of Rajasthan 2022 SCC Online SC 433, even otherwise applicant/appellant is a man of clean antecedents and inasmuch as he has no criminal liability to his credit except the present one. It is thus urged by the learned counsel for applicant/appellant that applicant/appellant is liable to be enlarged on bail. In case the applicant/appellant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate in the hearing of present appeal. Per contra, the learned A.G.A. representing State/opposite party-1 has opposed the prayer for bail. He submits that since applicant/appellant is a named as well as convicted accused, therefore he does not deserve any indulgence by this Court. According to the learned A.G.A. interest of justice shall better be served in case the appeal itself is heard on merits by fixing a short date instead of enlarging the applicant/appellant on bail. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant/appellant in support of the prayer for bail, with reference to the record at this stage. Having heard the learned counsel for applicant/appellant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant/appellant, accusation made coupled with the fact that this Court finds that the applicant-appellant is a named and convicted accused. However, subsequent to the FIR dated 09.06.2010 lodged by the first informant, applicant-appellant solemnized marriage with prosecutrix on 17.06.2010. As such, the prosecutrix is now the legally wedded wife of applicant. By reason of above, applicant-appellant and the prosecutrix are living together as husband and wife. In view of heavy pendency of appeals, coupled with the fact that there is acute shortage of Hon'ble judges, there is no likelihood of the present appeal being heard in near future. Applicant is in jail since 19.09.2024. As such, he has undergone one year and five months of incarceration. In view of the facts as noted above, the criminal prosecution of applicant itself cannot be sustained in view of the law laid by the Apex Court in the case of K. Dhandapani (Supra) and Mafat Lal (supra). In view of the subsequent developments that have been taken place, the criminality, if any, committed by applicant-appellant stands washed off. The sentence awarded against applicant- appellant by court below is a definite sentence, therefore, by reason of law laid by the Apex Court in the case of Atul @ Ashutosh (Supra), applicant-appellant is liable to be enlarged on bail during the pendency of present appeal. No exceptions to be same can be carved out in the case of applicant/appellant. Therefore irrespective of the objections raised by the learned A.G.A. to the present application for bail but without making any comment on the merits of the case, applicant/appellant has made out a case for bail. The application for suspension of sentence is liable to be allowed. It is , accordingly, allowed. Let the applicant/appellant- Chandrapal be released on bail in aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned. It is however provided that the amount of fine awarded against applicant/appellant by Court below shall be deposited by applicant/appellant with the court below, within a period of one month from today, failing which the bail granted to applicant/appellant under this order shall stand cancelled and he shall be taken into custody at once to serve out the sentence, awarded by court below. Order Date :- 5.3.2025 S.A.

Appellant :- Chandrapal Respondent :- State of U.P. Counsel for Appellant :- Manoj Kumar Srivastava Counsel for Respondent :- G.A. Hon'ble Rajeev Misra,J. Ref: On Appeal Admit. Summon the lower court record. Notice on behalf of opposite party-1 has been accepted by the learned AGA. List for hearing in due course. Ref: Order on the Application for Suspension of Sentence Heard Mr. Manoj Kumar Srivastava, the learned counsel for applicant/appellant and the learned A.G.A. for State. Perused the record. Feeling aggrieved by the judgement and order dated 04.02.2025, passed by Additional District and Sessions Judge, Court No.9, Aligarh, in Sessions Trial No.617 of 2011 (State Vs. Chandra Pal), under sections 363, 366 IPC, arising out of Case Crime No.223 of 2010, Police Station- Jawan, District- Aligarh, applicant-appellant has approached this Court by means of aforementioned criminal appeal. By means of and order, impugned applicant/appellant has been convicted under section 366 IPC and consequently, sentenced to five years imprisonment along with fine of Rs. 7,000/- and in case of default, applicant/appellant is to undergo six months additional imprisonment. judgment Learned counsel for applicant submits that applicant-appellant was initially enlarged on bail but since he absconded from the proceedings, therefore, after his arrest he was not enlarged on bail. Accordingly, applicant/appellant has filed aforesaid application for suspension of sentence/enlargement on bail during the pendency of present appeal. Learned counsel for applicant/appellant contends that thugh applicant/appellant is a convicted accused yet he is liable to be enlarged on bail. Appellant is in jail since 19.9.2024. As such, he has undergone more than one year and five months of incarceration. Referring to the judgement of Supreme Court in Atul @ Ashutosh Vs. State of M.P., (2024) 3 SCC 663 it is urged by the learned counsel for applicant/appellant that Apex Court has itself observed that where definite sentence, punishment has been awarded by Court below against accused appellant and there is no likelihood of the appeal being heard in near future, the High Court must enlarge such an accused on bail. According to the learned counsel for applicant/appellant, in view of heavy pendency of appeals before this Court, coupled with the fact that there is an acute shortage of Judges in High Court, there is no likelihood of the present appeal being heard in near future. Learned counsel for applicant submits then that applicant has solemnized marriage with prosecutrix and consequently, the prosecutrix is now the legally wedded wife of applicant. As such, applicant and the prosecutrix are living together as husband and wife. On the above premises, he, therefore, submits that criminality if any committed by appellant stands washed off therefore the criminal prosecution of applicant cannot be sustained. To buttress his submission, he has referred to the judgments of Supreme Court in the case of K. Dhandapani Vs. State by the Inspector of Police 2022 SCC Online SC 1056 and Mafat Lal and Another Vs. State of Rajasthan 2022 SCC Online SC 433, even otherwise applicant/appellant is a man of clean antecedents and inasmuch as he has no criminal liability to his credit except the present one. It is thus urged by the learned counsel for applicant/appellant that applicant/appellant is liable to be enlarged on bail. In case the applicant/appellant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate in the hearing of present appeal. Per contra, the learned A.G.A. representing State/opposite party-1 has opposed the prayer for bail. He submits that since applicant/appellant is a named as well as convicted accused, therefore he does not deserve any indulgence by this Court. According to the learned A.G.A. interest of justice shall better be served in case the appeal itself is heard on merits by fixing a short date instead of enlarging the applicant/appellant on bail. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant/appellant in support of the prayer for bail, with reference to the record at this stage. Having heard the learned counsel for applicant/appellant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant/appellant, accusation made coupled with the fact that this Court finds that the applicant-appellant is a named and convicted accused. However, subsequent to the FIR dated 09.06.2010 lodged by the first informant, applicant-appellant solemnized marriage with prosecutrix on 17.06.2010. As such, the prosecutrix is now the legally wedded wife of applicant. By reason of above, applicant-appellant and the prosecutrix are living together as husband and wife. In view of heavy pendency of appeals, coupled with the fact that there is acute shortage of Hon'ble judges, there is no likelihood of the present appeal being heard in near future. Applicant is in jail since 19.09.2024. As such, he has undergone one year and five months of incarceration. In view of the facts as noted above, the criminal prosecution of applicant itself cannot be sustained in view of the law laid by the Apex Court in the case of K. Dhandapani (Supra) and Mafat Lal (supra). In view of the subsequent developments that have been taken place, the criminality, if any, committed by applicant-appellant stands washed off. The sentence awarded against applicant- appellant by court below is a definite sentence, therefore, by reason of law laid by the Apex Court in the case of Atul @ Ashutosh (Supra), applicant-appellant is liable to be enlarged on bail during the pendency of present appeal. No exceptions to be same can be carved out in the case of applicant/appellant. Therefore irrespective of the objections raised by the learned A.G.A. to the present application for bail but without making any comment on the merits of the case, applicant/appellant has made out a case for bail. The application for suspension of sentence is liable to be allowed. It is , accordingly, allowed. Let the applicant/appellant- Chandrapal be released on bail in aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned. It is however provided that the amount of fine awarded against applicant/appellant by Court below shall be deposited by applicant/appellant with the court below, within a period of one month from today, failing which the bail granted to applicant/appellant under this order shall stand cancelled and he shall be taken into custody at once to serve out the sentence, awarded by court below. Order Date :- 5.3.2025 S.A.