- (1.) HEARD Sri Arvind Srivastava, learned counsel for the appellants and learned AGA in opposition in support and opposition of bail prayers of the two appellants, Smt. Tara Devi and her husband Shivdan Gaur, who were in-laws of the deceased Sona Devi, and who have been convicted for offences U/Ss 306, 498A,201 I.P.C., in S.T. No. 147 of 2008, State of U.P. versus Brajnandan and others, by Additional Session's Judge, Court No. 3 , Mau.
(2.) DURING course of argument the neat question of law which has been mooted for consideration and judicial determination by appellant's counsel is as to whether pending consideration of final relief of bail U/S 389 Cr.P.C., in short code, can an appellant be released on short term bail inspite of newly added proviso to the said section? Submission of appellant's counsel is that requirement of granting time to State counsel to file an objection on the bail prayer of an appellant, who has been convicted and sentenced to ten years or more of imprisonment is restricted only to grant of final relief for bail and not for granting interim bail pending consideration of final relief of bail. According to appellant's contention proviso attached to section 389 of the code does not curtail or abridge power of appellant court to grant interim bail pending consideration final relief of bail. Considered in right prospective said proviso cannot scuttle power of high court to grant interim bail nor it can put an embargo on such a power of this court to grant interim bail to deserving appellants submitted appellant counsel. Before deliberating and dilating on the harangued question a brief resume of preceding facts are noted below. Deceased Sona Devi, daughter of informant Keshav Prasad Gaur, a clerk in Life Insurance Corporation of India, Bokaro, Jharkhand, tied her nuptial knot with Brajnandan Prasad @ Lallan, son of appellants, on 4.2.2001, according to Hindu customs and rites. In the marriage dowry was offered according to fiscal and economic conditions by the informant but that had not satisfied the rapacious psyche of the bride groom, his parents and relatives, who were further demanding one and half lacs of rupees and a two wheeler. None fulfilment of dowry demand resulted in inflicting torture on the wife Sona Devi. On 30.12.2007 at 8.45.a.m. appellant Shivdan Gaur, father-in-law of Sona Devi, telephoned informant and told him that she is not keeping well. Ten minutes thereafter, one Mohammad Ali, husband of village Pradhan, made a second telephone call to the informant to intimate him that his daughter expired. Subsequently body of Sona Devi was also cremated without waiting for the informant. Since informant sensed that his daughter was poisoned to death by her husband Brajnandan Prasad @ Lallan, father-in-law Shivdan Gaur and mother-in- law Smt. Tara Devi and without waiting for him they, to conceal their crime and obliterate evidences of murder, had cremated corpse of the deceased, that the informant scribed written FIR, Ext. Ka 1 and lodged it on 2.1.2008 at 12.30 p.m. at PS Mohammadabad Gohana, as Crime No.4 of 2008, U/Ss 498A, 304B, 201 IPC and 3/4 D.P. Act. vide Ext. Ka 5, the GD of registration of crime being Ext. ka 6. PW7 Ram Bhawan Chaurasia, Circle Officer, commenced investigation into the crime and after conducting routine investigation and observing all the investigatory formalities, charge sheeted the accused for the aforesaid offences. Committal Magistrate registered the case against the accused and summoned them to stand trial and finding their case triable by Session's Court committed it to Session's Court for trial where it was registered as S.T.No. 147 of 2008, State versus Brajnandan and others. Additional Session's Judge, Court NO. 3 Mau, who conducted the trial found the case of the prosecution established for offences U/Ss 306,498A, 201 I.P.C. only to the hilt and therefore convicted the accused for those offences and sentenced them to ten years R.I. with fine of Rs.5000/-, the default sentence being 1 year further imprisonment for the first charge, three years SI with fine of Rs. 2000/- the default sentence being six months additional imprisonment on the second count, and for the last offence one year SI with fine of Rs. 1000/-, the default sentence being additional one month imprisonment vide it's impugned judgement and order dated 23.12.2010. All the sentences were ordered to run concurrently. Against the said conviction and sentence accused persons filed two separate appeals. Present appeal is by Smt. Tara devi and her husband Shivdan Gaur, mother-in-law and father-in-law, which has been admitted and now their interim and final bail prayer is being decided by this order. Since, during course of argument mooted question noted in the opening paragraph of this order has been harangued that it is now being decided.
(3.) BAIL of a convicted accused and suspension of his sentence during pendency of appeal by that convicted accused is governed by section 389 of the code and consequently that section is reproduced below:- "389.Suspension of sentence pending the appeal; release on appellant on bail.- (1) Pending any appeal by a convicted person, the Appellant 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 Appellant Court shall, before releasing on bail or on his own bond a 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.) (2)The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (3)Where the convicted person satisfied the Court by which he is convicted that he intends to present an appeal, the Court shall,- (i)where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii)where the offence of which such person has been convicted is a bailable one, and he is on bail, Order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4)When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced." From a perusal of the aforesaid section it is evident that pending disposal of an appeal by a convicted accused, appellate court can suspend execution of his sentence or order under challenge and can release accused appellant on bail or on his own bond. By Amending Act of 2005, which came into force on 23.6.2006, now a proviso has been attached to the parent section in the following terms: "Provided that the Appellant Court shall, before releasing on bail or on his own bond a 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." Perusal of this newly added proviso ordains that in those appeals where conviction of an accused is for death or life imprisonment or imprisonment for not less than ten years accused appellants shall not be released on bail or on his own bond unless public prosecutor is afforded an opportunity to show cause, in writing, against such release on bail or on bond. Aforesaid proviso further conferred power on public prosecutor to move for cancellation of bail granted to an accused convict. Now, the question to be determined is as to whether, pending consideration of final bail, ie: during period allowed to the public prosecutor to file written objection, can an appellant be released on interim bail?;