The High Court of Calcutta, while dismissing an appeal filed for suspension of sentence, held that if it appears to the court that the appellant is able to raise sufficient doubt in the mind of the appellate court with regard to the nature and existence of complicity of the appellant in the commission of the alleged offence, the appellate court may exercise such discretion in favour of the appellant.
Brief Facts:
An application for suspension of sentence was filed in 2017, and the said application was disposed of. However, subsequent applications were filed seeking self-same reliefs in which the coordinate Bench on 22nd February 2024, noticing that the lower court records had been remitted to the trial court for the trial of the absconding accused, directed the trial court to submit a report stating the time frame within which the trial court of absconding accused may be concluded. The charges against the said accused persons were framed and the trial court proceeded for de novo trial for these two accused persons.
Contentions of the Appellant:
The Learned Counsel for the Appellant submitted that in view of the long incarceration for more than 10 years and the appeal not being likely to be decided immediately, the appellants are entitled to bail on terms and conditions as may be imposed by this Court. He argued that they were on bail during the period of trial and they did not misuse the liberty. He contended that when the appeal of the accused could not be disposed of within a reasonable measure of time and keeping in mind that any prolongation of detention is likely to affect his right under Article 21 of the Constitution of India, ultimately if he is found to be innocent the period of incarceration for an unduly long period would not be justified.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that merely the fact of the appellants being in custody for over 10 years would not be the sole factor for suspension of sentence. The appellate court is required to take into consideration the gravity of the offence and the punishment it attracts. She argued that the conviction is based on the evidence of five eyewitnesses who saw the appellants/applicants physically assaulting the victims causing their deaths. The learned Counsel also referred to the post-mortem report to show the cause of injury.
Observations of the court:
The court noted that Section 389 of the Cr. P.C. confers a discretionary jurisdiction upon the appellant court to enlarge the accused during the pendency of the appeal on conviction of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years.
The Court observed that at the stage of suspension, it is not required for the appellate court to have a threadbare discussion on the evidence or a detailed scrutiny of the facts and evidence. It is sufficient if the court on the basis of the materials prima facie finds an arguable case on merit and likelihood of success in the appeal. Apart from the health conditions if it appears to the court that the appellant is able to raise sufficient doubt in the mind of the appellate court with regard to the nature and existence of complicity of the appellant in the commission of the alleged offence, the appellate court may exercise such discretion in favour of the appellant.
The decision of the Court:
The Calcutta High Court, dismissing the appeal, held that there had been no change of circumstances since the last order of rejection.
Case Title: Krishnendu Bhattacharya & Ors. vs. The State of West Bengal
Coram: Hon’ble Justice Soumen Sen and Hon’ble Justice Uday Kumar
Case No.: CRA 60 of 2017
Advocate for the Appellant: Mr. Fazlur Rahaman
Advocate for the Respondent: Mrs. Anusuya Sinha