Birsi Devi vs The State of Jharkhand

Rongon Mukhopadhyay, J.—Heard learned counsel for the appellant-Birsi Devi and learned counsel for the State on I.A. No. 5667 of 2014.

Learned counsel for the appellant submits that in the present case, the appellant has been convicted for the offence under section 304B of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for ten years. He further submits that the appellant is the mother in law and there are general and omnibus allegations against the appellant. He also submits that the main accused, who happens to be the husband of the deceased, during pendency of the appeal, has already been granted bail by this Court on 8.3.2013 in Cr. Appeal (S.J.) No. 363 of 2012. Lastly, he submits that out of sentence of 10 years, the appellant in totality has already remained for more than 5 years in custody.

Learned counsel for the State opposes the prayer for bail and submits that the complicity of the appellant with respect to the occurrence can be deduced from the evidence of the prosecution witnesses and therefore in such circumstances, she does not deserve to be released on bail.

In view of the order which I propose to pass, it would be necessary to refer to Section 389 of Cr.P.C., which reads as under:-

"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 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 satisfies 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 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".

Taking into consideration the proviso to section 389(1) of the Code of Criminal Procedure, the Hon''ble Supreme Court in the case of Atul Tripathi Vs. State of U.P., , has summed up the legal position, which is as under:-

"15.1 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.

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

15.3 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.

15.4 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."

In view of the fact that the appellant has already completed more than half of the sentence awarded to her and that the husband, who is main accused in the present case, has already been granted bail by this Court, during pendency of the appeal, the State is hereby directed to file a show cause within a period of two weeks as to why the appellant should not be released on bail. If no such show cause is filed within the time specified, it will be presumed that the State has no objection with respect to grant of bail to the appellant.

Put up this case on 5.12.2014.