Des Raj @APPELLANT@Hash State Of Jammu & Kashmir

Gita Mitital, CJ

IA No.1/2018

Pursuant to order dated 26th September, 2018, a report has been received under the signatures of Mr. Harish Kotwal, Superintendent, District Jail, Udhampur placing the details of the imprisonment of the appellant and answer to other queries raised by us.

We have heard learned counsel for the parties and also perused the available record.

The appellant by way of present application has sought suspension of the sentence imposed upon him by the Court of Principal District and Sessions Judge, Udhampur by order dated 28th Septemer, 2012 imposing rigorous imprisonment for life for his conviction for offence under Section 302 RPC and also imposing fine of Rs.10,000/-. Further rigorous imprisonment for five years and a fine of Rs.2,000/- stands imposed for his conviction for offence under Section 307 RPC.

It appears that the appellant was implicated in FIR No.50/2002 registered in Police Station, Chenani with regard to an incident alleged to have occurred on 19th August, 2002. The appellant was tried and was convicted and sentenced by judgment dated 28th September, 2012 for the commission of offence for which he has been charged.

So far as the period of incarceration is concerned, the report received from the Superintendent, District Jail, Udhampur would show that the appellant was arrested on 23rd August, 2002 and has never been released, either on bail or parole and still in custody and even he has not been granted suspension of sentence after his conviction. As per the report of the Superintendent, District Jail, Udhampur, as on 5th October, 2018, the appellant is in continuous and uninterrupted rigorous imprisonment of 16 years and 29 days.

As per the warrant of commitment dated 28th September, 2012, the appellant is 43 years aged as on date.

We are informed by Mr. Anmol Sharma, learned counsel for the appellant that the appellant is permanent resident of the State of J&K and was farmer by profession. Mr. Sharma has drawn our attention to the several reports available on the record of this appeal suggesting that during his trial, the appellant was being subjected to psychiatric treatment.

One of the grounds pressed by learned counsel for the appellant in his support to assail the conviction is that there is no evidence at all to show that the appellant had the capacity to form an intention to murder the deceased persons, giving his state of mental health.

Be that as it may, the present appeal is of the year 2012 and is yet to be heard. There is no material on record that the appellant/applicant has been guilty of protracting the Trial. The appellant, as stated above, is in continuous incarceration over 16 years. The available record and the narration of facts noted herein above, suggest that there is little possibility of the appellant absconding from justice.

We have considered the submissions made by learned counsel for the parties. The Supreme Court in the case reported as AIR 2001 SC 1528 Akhtari Bi v. State of M.P., has held that if the appeal is pending for five years and there is no chance of appeal being heard in near future then in such a case the applicant/appellant should be enlarged on bail. In this regard, reference may also be made to the principles laid down in AIR 2017 SC 1568 Sandeep alias Raja Acharya v. State of Orissa. It is also not in dispute that the appellant/applicant has served the jail sentence for a period of more than 16 years. There appears to be little possibility of present appeal being heard immediately.

The period of continuous incarceration would be a relevant factor for grant of bail. In view of the above, we allow the application and direct as follows:-

i) the sentence imposed upon the appellant by order dated 28.09.2012 shall be suspended till further orders of this Court.

ii) Subject to appellant's furnishing the bail bond in the sum of Rs.50,000/- with one surety of the like amount to the satisfaction of the trial Court, the appellant shall be released from custody.

iii) Upon release, the appellant shall report to the Station House Officer of the Police Station, Chenani at any time during the day light once in every month.

This application is allowed in the above terms.