- (1.) BY THE COURT: Aggrieved by the order dated 02nd February, 2011, passed by the learned Sessions Judge, Jaipur District, Jaipur, whereby the learned Judge has denied the application for suspension of sentence to the petitioner, the petitioner has approached this Court.
(2.) ADMITTEDLY vide order dated 17.01.2011, the petitioner, along with other co-accused persons, was convicted for offences under Section 407 read with Section 120B IPC. Meanwhile, he was acquitted for offence under Section 420 IPC. The petitioner filed an appeal against the said judgment as well as filed an application for suspension of sentence under Section 389 Cr.P.C. However, vide order dated 02nd February, 2011, the learned Judge has dismissed the application for suspension of sentence. Mr. Anshuman Saxena, the learned counsel for the petitioner, has contended that the reasoning given by the learned Judge is unsustainable in law. According to the learned Judge, since the petitioner was denied bail both by the Session Court as well as by the High Court during the course of trial, his sentence cannot be suspended at the appellate stage. However, if this reasoning were to be accepted, it would make the denial of bail during the appellate stage, a rule in cases where the accused offender may not have been granted bail during the trial. Such a reasoning would reduce Section 389 Cr.P.C. to a nullity. Therefore, the reasoning given by the learned Judge is misplaced. On the other hand, Mr. Javed Chaudhary, the learned Public Prosecutor, has contended that the learned Judge has validly applied his discretion and has denied the suspension of sentence to the petitioner. Therefore, he has supported the impugned order. To say the least, the reasoning given by the learned Judge is rather curious. Merely because an offender has been denied bail during the course of trial, it does not, ipso facto, imply that he should not be granted bail during the pendency of the appeal. If the reasoning of the learned Judge were to be accepted, it would make Section 389 Cr.P.C. redundant. A reasoning, which reduces a provision of law to a nullity, can never be accepted. Instead, the learned Judge should have considered the merit of the case and should have considered the fact whether it would be possibly to hear the appeal within the period of sentence or not ? In number of cases, the Hon'ble Supreme Court has held that in case the appeal cannot be heard within the period of sentence, then ordinarily the sentence should be suspended. Moreover, in the present case, the petitioner has been convicted only for offences under Section 407 read with Section 120B IPC and has been sentenced only to three years of imprisonment. Lastly, interestingly while the other co-accused persons have been granted the benefit of bail, the same has not been extended to the present petitioner. Since there is no difference between the cases of those co-accused persons who have been granted bail, and the petitioner, the denial of bail to the petitioner obviously violates the very concept of equality. Therefore, this Court has no other option, but to set aside the order dated 02.02.2011, passed by the learned Sessions Judge, Jaipur District, Jaipur and directs that the sentence of the accused-petitioner, namely Subhash Chand S/o Shri Hanuman Singh, shall remain suspended till the final decision of the appeal before the appellate court and he shall be released on bail, provided he furnishes a personal bond in the sum of Rs.30,000/- with two sureties of the same amount to the satisfaction of the appellate court to the effect that he shall appear before the appellate court on 07.04.2011 and as and when called upon to do so. With these observations, this petition is, hereby, allowed. ;