Makraj Limboo vs State Of Sikkim

I. A. No. 01/2019

An application under section 389 (1) of the Code of Criminal Procedure, 1973 (for short ‘Cr.PC’) has been preferred by the appellant who

has filed the Criminal Appeal pursuant to his conviction by the learned Sessions Judge on 30.07.2019 for the offence of rape for which he has been

sentenced to undergo rigorous imprisonment for a term of 7 years.

Section 389 Cr.PC provides, 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.

Heard Mr. N. Rai, learned Senior Counsel for the appellant and Mr. S. K. Chettri learned Assistant Public Prosecutor for the State.

The application is sought on three grounds. Firstly, that the father of the appellant is 80 years old and is suffering from various ailments including

“scrub typhus†and he was recently admitted to the District Hospital, Mangan on 27.09.19 for six days and discharged thereafter on 02.10.2019.

Secondly, it is stated that the appellant’s wife has undergone cyst operation on 14.11.2019 at the Central Referral Hospital and presently on bed

rest. Thirdly, it is also stated that the appellant is a contractor holding the post of the President of Mangshila Men’s Educated Unemployed Co-

operative Society Limited who had undertaken Government work for construction of marketing centre and construction of washroom and

caretaker’s quarter. According to the applicant the said contract work is hampered due to his conviction and incarceration in the jail. In support of

the three contentions, documents in support have also been produced.

In the application it is also stated that the appellant is required to be present in his house as there is no one responsible to look after his bed ridden

wife and his aged father. However, on a query made by this Court to the learned Senior Counsel for the applicant, he fairly admits that the appellant

has a son who is 23 years old but studying outside the State.

Mr. N. Rai submits that the appellant was on bail throughout the trial without any complaint about misuse of the conditions of bail. He further took

the Court through the FIR as well as the deposition of the victim and argued that the FIR had been lodged after a considerable delay. Mr. N. Rai

relied upon the judgment of the Supreme Court in re: Sunil Kumar v. Vipin Kumar AIR 2014 SC 3400 and Kiran Kumar v. State of M. P (2001) 9

SCC 211.

Per contra Mr. S. K. Chettri learned Assistant Public Prosecutor submitted that the applicant has been convicted for a heinous offence and only in

exceptional cases, benefit of suspension of sentence can be granted. He also relied upon the reply filed on behalf of the respondent to the application

for suspension of sentence and bail. He relied upon the judgment of the Supreme Court in Kishori Lal v. Rupa and Others(2004) 7 SCC 638.

In re: Sunil Kumar (supra) the Supreme Court was considering the correctness of the judgment of the High Court enlarging the respondents therein

on bail. It was the contention of the State before the Supreme Court that the High Court had erred in granting bail to the respondents in exercise of the

power under section 389 Cr.PC without assigning any legal and acceptable reason. The two important considerations noticed by the Supreme Court

was that both the appeal and the revision filed by the parties were pending before the High Court which meant that the conviction of the respondents

therein were not confirmed by the Appellate Court and secondly that the respondent had been granted bail earlier and they had not misused the liberty.

The Supreme Court after hearing the rival contention concluded that the High Court had rightly applied its discretionary power under section 389

Cr.PC to enlarge the respondents on bail. The Supreme Court was of the view that the High Court had taken into consideration all the relevant facts

including the fact that the chance of the appeal being heard in the near future was extremely remote.

In re: Kiran Kumar (supra) the Supreme Court reiterated its earlier decision that when a person is convicted and sentenced to a short term

imprisonment the normal rule is that when his appeal is pending the sentence should be suspended and rejection is only by way of exception. It was

held that in such case every endeavour should be made to have the appeal posted for early hearing and disposal.

In re: Kishori Lal (supra) the Supreme Court held that one of the essential ingredients of section 389 is the requirement of the Appellate Court to

record reasons in writing for ordering suspension of execution of the sentence or order appeal against. It was held that the requirement of recording

reasons in writing clearly indicates that there has to be a careful consideration of the relevant aspects and the order directing suspension of sentence

and grant of bail should not be passed as a matter of routine. The Supreme Court also held that the mere fact that during the trial, they were granted

bail and there was no allegation of misuse of liberty is really not of much significance and the effect of bail granted during trial loses significance when

on completion of trial, the accused person have been found guilty. The principle in re: Vijay Kumar v. Narendra(2002) 9 SCC 364 was reiterated. In

the said judgment it was held that in considering the prayer for bail in a case involved in a serious offence like murder, the Court should consider the

relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity

of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder.

The applicant has been convicted for rape which is a heinous offence. That he was on bail throughout the period of trial has no relevance after his

conviction. The discharge slip of the District Hospital, Mangan reflects that the patient, Mangal Singh Limboo was admitted on 27.09.2019 and

discharged on 02.10.2019. The discharge summary of the Central Referral Hospital reflects that the patient, Dil Maya Limboo was admitted on

12.11.2019 and discharged on 18.11.2019. The applicant was convicted by the learned Sessions Judge on 30.07.2019 and sentenced on 31.07.2019.

The appeal was preferred on 16.09.2019. It is quite evident that during the period of the treatment of his father and his wife, the appellant was in

custody inspite of which they had been taken care of. In so far as the third ground is concerned it is the applicant’s case that he is a contractor. If

so, it would be difficult to presume that he does not have any help to pursue the contract work. The letter dated 28.11.2019 states that the date of

completion of work was 13.04.2019. This was much before the date of his conviction and subsequent incarceration. Admittedly, the applicant was on

bail during the period.

The appeal was admitted on 01.10.2019 and therefore, it is apparent that the conviction of the applicant has not been confirmed in appeal. The

applicant has been sentenced for 7 years and he has been in custody from 31.07.2019 for 4 months and 11 days. The order dated 01.10.2019 passed

by this Court reflects that the paper book have been prepared and the matter is posted on 20.02.2020 which is barely 2 months and 9 days away. The

learned Sessions Judge has come to the conclusion that the applicant is guilty of commission of rape on the victim after having taken advantage of his

dominant position. Considering the nature of accusation made against the applicant, the manner in which the crime is held to have been committed, the

gravity of the offence, and the desirability of releasing the applicant on bail after he has been convicted for committing the serious offence of rape this

Court is not inclined to suspend the sentence and grant the applicant, bail. Consequently the application is rejected.