State v. Dhirendra and

11. Learned counsel for applicants/appellants submits that though applicants/appellants are named as well as convicted accused however in view of the facts as have now emerged on record they are liable to be enlarged on bail during the pendency of present appeal.

12. Mr. Ram Surat Patel, the learned counsel for applicants/appellants submits that applicants/appellants were enlarged on bail during the pendency of trial. However, there is nothing on record to show that applicants/appellants misused the liberty of bail. As such applicants/appellants are liable to be enlarged on bail during the pendency of present appeal also.

13. It is then contended by the learned counsel for applicants/appellants sentence awarded applicants/appellants by court below is a definite sentence punishment inasmuch as applicants/appellants have been sentenced for a maximum period of 1 year. However, in view of heavy pendency of criminal appeals before this Court, coupled with the fact that there is an acute shortage of Hon'ble Judges in this Court, therefore, there is no likelihood of the present appeal being heard in near future. It is thus urged that in view of aforementioned peculiar and precarious circumstance, applicants/appellants are liable to be enlarged on bail during the pendency of present appeal. Referring to the judgment of Supreme Court in Atul @ Ashutosh Vs. State of M.P., (2024) 3 SCC 663, it is urged by the learned counsel for applicants/appellants that Apex Court in aforementioned judgment has itself observed that where definite sentence, punishment has been awarded by Court below against a convict and there is no likelihood of the appeal being heard in near future, then in such a circumstance the Court of appeal must enlarge such a convict on bail during the pendency of appeal.

14. With reference to the record, the learned counsel for applicants/appellants submits that there is no such distinguishing feature on record on the basis of which the ratio laid down by Apex Court in aforementioned judgment could be so distinguished so as to deny bail to applicants/appellants.

15. Learned counsel for applicants/appellants has then taken the Court to the impugned judgment and order and has referred to paragraph-11 of the impugned judgment wherein court below has dealt with the deposition of the prosecutrix i.e. PW-2. With reference to above, the learned counsel for applicants/appellants contends that the case of present applicants/appellants is clearly distinguishable from co-accused Dhirendra which has also been convicted under Section 7/8 of the POCSO Act. It is then submitted by the learned counsel for applicants/appellants that no such act was committed by applicants/appellants which could cause breach of peace/public order, therefore, conviction and sentence of applicants/appellants under Section 504 IPC is per se illegal. It is lastly submitted by the learned counsel for applicants/appellants that there is no such evidence on record on the basis of which it could even be inferred that present applicants/appellants have even assaulted Chandrpal whose injuries have been noted by court below at internal page-12 of the impugned judgment. On the above premise, it is thus urged by the learned counsel for applicants/appellants that as per the evidence on record no offence under Section 323 IPC can be said to have been committed by applicants/appellants.

16. Even otherwise applicants/appellants are men of clean antecedents having no criminal history to their credit except the present one. Applicants/appellants have also been granted benefit of interim bail, therefore, in view of above, the nature and gravity of offence, the definite sentence awarded against applicants/appellants by court below and there being no such incriminating circumstance on record necessitating the custodial arrest of applicants/appellants during the pendency of present appeal, the learned counsel for applicants/appellants would submit that applicants/appellants are liable to be enlarged on bail during the pendency of present appeal. In case the interim bail granted by court below to applicants/appellants is made absolute by this Court, then in that eventuality applicants/appellants shall not misuse the liberty of bail and shall co-operate in the hearing of present appeal.

17. Per contra, the learned AGA representing State-opposite party- 1 has vehementally opposed the prayer for bail. He submits that since applicants/appellants are named and convicted accused, therefore, they do not deserve any indulgence by this Court. According to the learned AGA, interest of justice shall better be served in case the appeal itself is heard on merits by fixing a short date rather than enlarging the applicants/appellants on bail during the pendency of present appeal. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicants/appellants with reference to the record at this stage.

18. Having heard the learned counsel for applicants/appellants, the learned AGA for State-opposite party-1, upon perusal of record, evidence, nature and gravity of offence as well as complicity of applicants/appellants, accusation made, this Court finds that applicants/appellants are named and convicted accused, the conviction and sentence awarded to applicants/appellants by court below is for a maximum period of 1 year, applicants/appellants were enlarged on bail during the pendency of trial, however, there is nothing on record to show that applicants/appellants misused the liberty of bail, the case of the present applicants/appellants is clearly distinguishable from that of co-accused Dhirendra, applicants/appellants have been awarded the definite sentence punishment by court below inasmuch as the maximum sentence awarded by court below against applicants/appellants is 1 year, in view of heavy pendency of criminal appeals before this Court and also an acute shortage of Hon'ble Judges in this Court, there is no likelihood of the present appeal being heard in near future, therefore in view of aforementioned peculiar and precarious circumstance, applicants/appellants are prima facie liable to enlarged on bail, the Apex Court in the case of Atul @ Ashutosh (supra) has itself observed that where definite sentence punishment has been awarded by court below and there are no chances of the appeal being heard in near future then in such a circumstance the appellate court must enlarge such an accused on bail, the learned AGA could not point out any such distinguishing feature from the record so as to distinguish aforementioned judgment of the Supreme Court and deny bail to applicants/appellants during the pendency of appeal, as per the material on record no such evidence has emerged on record on the basis of which act of applicants/appellants could have caused breach of peace/public order, therefore, conviction of applicants/appellants under Section 504 IPC is against the record, the clean antecedents of applicants/appellants inasmuch as they have no criminal history to their credit except the present one, therefore, irrespective of the objections raised by the learned AGA in opposition to present application for suspension of sentence but without making any comment on the merits of appeal, this Court finds that applicants/appellants have made out a case for bail.

19. In view of the discussion made above, the application for suspension of sentence succeeds and is liable to be allowed.

20. It is, accordingly, allowed.

21. The interim bail granted to applicants/appellants vide order dated 24.03.2025 passed by court below is hereby made absolute.

22. It is however provided that the amount of fine awarded against applicants/appellants by Court below shall be deposited by applicants/appellants with the court below, within a period of one month from today, failing which the bail granted to applicants/appellants under this order shall stand cancelled and they shall be taken into custody at once to serve out the sentence awarded by Court below. Order Date :- 30.7.2025 R.S. Tiwari

11. Learned counsel for applicants/appellants submits that though applicants/appellants are named as well as convicted accused however in view of the facts as have now emerged on record they are liable to be enlarged on bail during the pendency of present appeal.

12. Mr. Ram Surat Patel, the learned counsel for applicants/appellants submits that applicants/appellants were enlarged on bail during the pendency of trial. However, there is nothing on record to show that applicants/appellants misused the liberty of bail. As such applicants/appellants are liable to be enlarged on bail during the pendency of present appeal also.

13. It is then contended by the learned counsel for applicants/appellants sentence awarded applicants/appellants by court below is a definite sentence punishment inasmuch as applicants/appellants have been sentenced for a maximum period of 1 year. However, in view of heavy pendency of criminal appeals before this Court, coupled with the fact that there is an acute shortage of Hon'ble Judges in this Court, therefore, there is no likelihood of the present appeal being heard in near future. It is thus urged that in view of aforementioned peculiar and precarious circumstance, applicants/appellants are liable to be enlarged on bail during the pendency of present appeal. Referring to the judgment of Supreme Court in Atul @ Ashutosh Vs. State of M.P., (2024) 3 SCC 663, it is urged by the learned counsel for applicants/appellants that Apex Court in aforementioned judgment has itself observed that where definite sentence, punishment has been awarded by Court below against a convict and there is no likelihood of the appeal being heard in near future, then in such a circumstance the Court of appeal must enlarge such a convict on bail during the pendency of appeal.

14. With reference to the record, the learned counsel for applicants/appellants submits that there is no such distinguishing feature on record on the basis of which the ratio laid down by Apex Court in aforementioned judgment could be so distinguished so as to deny bail to applicants/appellants.

15. Learned counsel for applicants/appellants has then taken the Court to the impugned judgment and order and has referred to paragraph-11 of the impugned judgment wherein court below has dealt with the deposition of the prosecutrix i.e. PW-2. With reference to above, the learned counsel for applicants/appellants contends that the case of present applicants/appellants is clearly distinguishable from co-accused Dhirendra which has also been convicted under Section 7/8 of the POCSO Act. It is then submitted by the learned counsel for applicants/appellants that no such act was committed by applicants/appellants which could cause breach of peace/public order, therefore, conviction and sentence of applicants/appellants under Section 504 IPC is per se illegal. It is lastly submitted by the learned counsel for applicants/appellants that there is no such evidence on record on the basis of which it could even be inferred that present applicants/appellants have even assaulted Chandrpal whose injuries have been noted by court below at internal page-12 of the impugned judgment. On the above premise, it is thus urged by the learned counsel for applicants/appellants that as per the evidence on record no offence under Section 323 IPC can be said to have been committed by applicants/appellants.

16. Even otherwise applicants/appellants are men of clean antecedents having no criminal history to their credit except the present one. Applicants/appellants have also been granted benefit of interim bail, therefore, in view of above, the nature and gravity of offence, the definite sentence awarded against applicants/appellants by court below and there being no such incriminating circumstance on record necessitating the custodial arrest of applicants/appellants during the pendency of present appeal, the learned counsel for applicants/appellants would submit that applicants/appellants are liable to be enlarged on bail during the pendency of present appeal. In case the interim bail granted by court below to applicants/appellants is made absolute by this Court, then in that eventuality applicants/appellants shall not misuse the liberty of bail and shall co-operate in the hearing of present appeal.

17. Per contra, the learned AGA representing State-opposite party- 1 has vehementally opposed the prayer for bail. He submits that since applicants/appellants are named and convicted accused, therefore, they do not deserve any indulgence by this Court. According to the learned AGA, interest of justice shall better be served in case the appeal itself is heard on merits by fixing a short date rather than enlarging the applicants/appellants on bail during the pendency of present appeal. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicants/appellants with reference to the record at this stage.

18. Having heard the learned counsel for applicants/appellants, the learned AGA for State-opposite party-1, upon perusal of record, evidence, nature and gravity of offence as well as complicity of applicants/appellants, accusation made, this Court finds that applicants/appellants are named and convicted accused, the conviction and sentence awarded to applicants/appellants by court below is for a maximum period of 1 year, applicants/appellants were enlarged on bail during the pendency of trial, however, there is nothing on record to show that applicants/appellants misused the liberty of bail, the case of the present applicants/appellants is clearly distinguishable from that of co-accused Dhirendra, applicants/appellants have been awarded the definite sentence punishment by court below inasmuch as the maximum sentence awarded by court below against applicants/appellants is 1 year, in view of heavy pendency of criminal appeals before this Court and also an acute shortage of Hon'ble Judges in this Court, there is no likelihood of the present appeal being heard in near future, therefore in view of aforementioned peculiar and precarious circumstance, applicants/appellants are prima facie liable to enlarged on bail, the Apex Court in the case of Atul @ Ashutosh (supra) has itself observed that where definite sentence punishment has been awarded by court below and there are no chances of the appeal being heard in near future then in such a circumstance the appellate court must enlarge such an accused on bail, the learned AGA could not point out any such distinguishing feature from the record so as to distinguish aforementioned judgment of the Supreme Court and deny bail to applicants/appellants during the pendency of appeal, as per the material on record no such evidence has emerged on record on the basis of which act of applicants/appellants could have caused breach of peace/public order, therefore, conviction of applicants/appellants under Section 504 IPC is against the record, the clean antecedents of applicants/appellants inasmuch as they have no criminal history to their credit except the present one, therefore, irrespective of the objections raised by the learned AGA in opposition to present application for suspension of sentence but without making any comment on the merits of appeal, this Court finds that applicants/appellants have made out a case for bail.

19. In view of the discussion made above, the application for suspension of sentence succeeds and is liable to be allowed.

20. It is, accordingly, allowed.

21. The interim bail granted to applicants/appellants vide order dated 24.03.2025 passed by court below is hereby made absolute.

22. It is however provided that the amount of fine awarded against applicants/appellants by Court below shall be deposited by applicants/appellants with the court below, within a period of one month from today, failing which the bail granted to applicants/appellants under this order shall stand cancelled and they shall be taken into custody at once to serve out the sentence awarded by Court below. Order Date :- 30.7.2025 R.S. Tiwari