REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     225       OF 2011   ARISING OUT OF

SPECIAL LEAVE PETITION (CRL.) NO. 8173 OF 2010

KANAKA REKHA NAIK … APPELLANT

VERSUS

MANOJ KUMAR PRADHAN & ANR. … RESPONDENTS

JUDGMENT

B. SUDERSHAN REDDY, J.

1. Leave granted.

2. This appeal impugns the order dated 7th July, 2010 passed  

by the High Court of Orissa in Miscellaneous Case No. 891  

of 2010 in Criminal Appeal No. 312 of 2010, whereby the

High  Court  has  granted  bail  to  the  respondent  Manoj  

Kumar Pradhan, a sitting M.L.A., who has been convicted  

under Sections 147, 326 read with Section 149, IPC and  

sentenced to seven years rigorous imprisonment.

3. The appellant herein is the wife of the deceased who was  

killed and burnt during the Kandhamal riots in Orissa in  

the year 2008.

4. The trial Court found that at the time of occurrence, the  

present  respondent  along  with  others  obstructed  the  

deceased  and  his  family  members  at  Barepanga.  

Thereafter, the rioters arrived there being called by them.  

The trial Court observed:

“They became part of the unlawful assembly after  the arrival of the rioters.

…

At  that  time  the  members  of  the  unlawful  assembly  were  armed with  deadly  weapons  like  tangia (axe), knife etc. which, used as weapons of  offence is likely to cause death. Some members of  the  unlawful  assembly  started  assaulting  the  deceased  brutally  and  mercilessly  immediately  arriving there. Thereafter, some members of the  mob burnt him there. Arrival of several persons of  ore than five at the place of  occurrence,  armed  

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with deadly weapons, being called by the accused  persons and assaulting the deceased with various  weapons clearly indicate that the common object  of such unlawful  assembly was to show criminal  force or to cause violence and to commit hurt to  the  deceased  with  such  weapons  which  endangered  his  life  which  amounts  to  cause  grievous hurt. From their behaviour and conduct  at the spot the same is apparent.

…

While assaulting the deceased, some members of  the unlawful assembly exceeded their power and  brutally killed the deceased at the spot beyond the  common  object  of  the  unlawful  assembly.  Thereafter,  some  members  of  such  unlawful  assembly set fire to him.  After killing him, some  members  of  the  unlawful  assembly  thought  it  prudent to wipe out the evidence of murder and  accordingly they buried the burnt dead body of the  deceased…

All  the  members  of  the  unlawful  assembly  including the present two accused persons … can  be  held  guilty  for  commission  of  the  offence  punishable  under  Section  326 read with  Section  149, IPC as they shared the common object of the  unlawful assembly to cause grievous hurt to the  deceased…

After critical evaluation of the entire materials and  the  position  of  law,  it  is  found  that  both  the  accused  were  involved  for  commission  of  the  offence of  rioting punishable under Section 147,  IPC on the day of occurrence at the spot.

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…with the same materials they are found guilty for  commission  of  the  offences  punishable  under  Section 147 and 326/149, IPC not under Section  302/149, IPC and I convict them there under”.

5. The trial  Court also made a separate order of sentence  

which is as under:

“Convict  Manoj  Ku.  Pradhan  is  a  responsible  person  of  the  locality  and  he  is  also  a  public  representative.  Commission  of  riot  by  him  with  others  can  not  be  considered  lightly.  The  crime  committed by the convicts  was not only against  the  individual  victim  but  also  the  same  was  against the society at large. It is required under  the law that punishment to be awarded for a crime  must not be irrelevant but it should be conformed  to  and  being  consisted  with  the  atrocity  and  brutality  with  which  the  crime  has  been  perpetrated.

Keeping  in  view  such  principle  and  the  circumstances  under  which  the  offence  was  committed  if  the  convicts  are  sentenced  to  undergo  rigorous  imprisonment  of  seven  years  and to pay fine of Rs.5000/- each for the offence  under Section 326/149, IPC and undergo rigorous  imprisonment  of  one  year  and  to  pay  fine  of  Rs.1000/- each for the offence under Section 147,  IPC it will meet the ends of justice.

Both  the  convicts  are  hereby  sentenced  to  undergo  rigorous  imprisonment  of  seven  years  and  to  pay  fine  of  Rs.5000/-  (Rupees  five  thousand) in default  to undergo further rigorous  imprisonment of six months for the offence under  Section  326/149  and  to  undergo  rigorous  

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imprisonment  of  one  year  and  to  pay  fine  of  Rs.1000/-  (Rupees  one  thousand)  in  default  to  undergo  further  rigorous  imprisonment  of  three  months  for  the  offence under  Section  147,  IPC.  Substantive sentences are to run concurrently”.

6. The  respondent  along  with  another  convict  preferred  

Criminal  Appeal  No.  312 of  2010 in  the  High  Court  of  

Orissa against the conviction and sentence passed by the  

trial  Court.  The appeal  was  taken up for  admission  on  

7.7.2010 by the High Court and on the same day the High  

Court directed release of the respondent herein. The said  

order reads as under:

“Considering the nature of allegation and the fact  that  the  petitioner  No.1  is  a  sitting  M.L.A.  of  G.Udayagiri  constituency,  I  directed  that  on  petitioner’s  furnishing  bail  bond  of  Rs.20,000/-  (Rupees twenty thousand) with two sureties each  for  the  like  amount  to  the  satisfaction  of  the  learned  Ad  hoc  Addl.  Sessions  Judge,  FTC-I,  Phulbani,  Kandhamal,  they  shall  be  released  on  bail. It is further directed that the petitioners shall  not threaten the witnesses examined. Mr. Patnaik,  learned  Senior  Advocate  appearing  for  the  informant states that since the petitioner No. 1 is  an  influential  person,  he  may  tamper  with  the  evidence in other cases pending against him. He  further states that security may be given to the  informant Kanak Rekha Naik.

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Considering  the  above  submission,  I  direct  the  Superintendent  of  Police,  Kandhamal  to  provide  adequate protection to her, if she applies for the  same”.

7. The above order is challenged on various grounds in this  

appeal.

8. Shri Colin Gonsalves, learned senior counsel appearing for  

the appellant  submitted that  the High Court  committed  

serious error  in directing the release of  the respondent  

who has been convicted for the offences punishable under  

Sections 147, 326 read with Section 149, IPC. purely on  

the  ground  that  he  is  a  sitting  M.L.A.  The  findings  

recorded by the trial Court against the convict are very  

serious in their  nature. The learned senior counsel  also  

submitted  that  the  High  Court  failed  to  take  into  

consideration the fact that the respondent is involved in  

more than one such similar cases and being an influential  

person, there is every likelihood of his tampering with the  

evidence in those cases pending against him.

9. Shri  P.S.  Narasimha,  learned  senior  counsel  for  the  

respondent,  on  the  other  hand,  submitted  that  the  

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appellant has no right to challenge the order directing the  

release  of  the  respondent  on  bail.  The  learned  senior  

counsel further submitted that the respondent had made  

a clear case for the suspension of his sentence pending  

the  appeal  preferred  by  him  which  may  come  up  for  

hearing only after a considerable time and not in the near  

future.  It  was  also  submitted  that  during  the trial,  the  

appellant was on bail which is one of the important aspect  

to be taken into consideration.

10.We have  heard  both  the  learned  senior  counsel  at  a  

considerable length. For the purposes of disposal of this  

appeal, it is not necessary to recapitulate all the findings  

recorded by the trial Court as against the respondent for  

his conviction under Section 326 read with Section 149,  

IPC. Suffice it to note that there is a clear finding that he  

was involved in the commission of the offences punishable  

under Sections 147, 326/149, IPC. Of course, the same is  

under challenge in the criminal appeal preferred by him  

before the High Court. Precisely for that reason, we wish  

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to make no comment whatsoever on the findings recorded  

by the trial Court against the respondent.

11. We are unable  to accept  the submission made by Shri  

P.S. Narasimha, learned senior counsel for the respondent  

as to the maintainability of the present appeal preferred  

by the wife of the deceased for more than one reason.  

Firstly,  it  is  evident  from the  impugned order  that  the  

appellant was heard by the High Court while considering  

the  application  filed  by  the  respondent  herein  seeking  

suspension of the sentence pending the appeal. Secondly,  

we have granted permission to the appellant to file the  

appeal  challenging  the  impugned  order  passed  by  the  

High Court. In the circumstances, it is not necessary to go  

into  the  correctness  of  the  observations  made  by  the  

Madras High Court in  Srinath Prasad Vs. State1 upon  

which  reliance  has  been  placed  by  the  learned  senior  

counsel. They are too broadly stated and it does not deal  

with jurisdiction of the High Court. In that case, the High  

Court took the view that the intervener has no right to be  1 2004 Cri L.J. 3635

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heard while deciding the petition to suspend the execution  

of sentence pending appeal. In our view, the High Court  

in exercise of its power under Section 482 of the Code of  

Criminal Procedure can always pass order and may hear  

even  an  intervener  while  considering  the  application  

seeking suspension of the sentence pending the appeal. It  

is for the High Court to decide as to the circumstances  

and the person who could be permitted to intervene while  

hearing the applications seeking suspension of sentence  

filed by the convicted person. It is a matter of exercise of  

jurisdiction by the High Court. But it cannot be said that  

the  High  Court  has  no  jurisdiction  to  permit  any  

intervener opposing the suspension of sentence and grant  

of bail by it in exercise of its power under Section 389 of  

the Code.

12. It is true that when a convicted person is sentenced to a  

fixed  period  of  sentence  and  when  he  files  an  appeal  

under any statutory right, suspension of sentence can be  

considered by the appellate Court  liberally  unless  there  

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are exceptional circumstances. But if for any reason, the  

sentence  of  a  limited  duration  cannot  be  suspended,  

every endeavour should be made to dispose of the appeal  

on merits more so when a motion for expeditious hearing  

of the appeal is made in such cases. Otherwise, the very  

valuable right of appeal would be an exercise in futility by  

efflux  of  time  [see  Bhagwan Rama Shinde Gosai  &  

Ors.  Vs.  State  of  Gujarat2].  But,  suspension  of  

sentence, pending any appeal by a convicted person and  

consequential release on bail is not a matter of course.  

The  appellate  Court  is  required  to  record  reasons  in  

writing  for  suspending  the  sentence  and  release  of  a  

convict  on bail  pending the appeal.  Therefore,  the only  

question that falls for our consideration in the instant case  

is whether the High Court has taken into consideration all  

the facts and recorded any reason directing the release of  

the  respondent  pending  the  appeal  preferred  by  him  

challenging his conviction by the trial Court?

2 (1999) 4 SCC 421

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13.There  is  no  dispute  that  the  respondent  herein  is  

involved in more than one case of similar nature of rioting  

etc. This fact has not been taken into consideration at all  

by the High Court. The High Court did not even suspend  

the execution of the sentence awarded by the trial Court  

but  directed  his  release  on  bail.  The  High  Court  was  

obviously  impressed  by  the  singular  fact  that  the  

respondent  is  a  sitting  M.L.A.  The  High  Court  did  not  

record  even  a  single  reason  confining  the  relief  of  

releasing on bail only to the respondent, though there are  

two  appellants  in  the  appeal  preferred  challenging  the  

judgment  of  the  trial  Court.  What  are  the  reasons  for  

confining  the  relief  only  to  the  respondent  herein  and  

directing his release? The only reason appears to be the  

fact that the respondent is a sitting M.L.A. The law does  

not make any distinction between the representatives of  

the  people  and  others,  accused  of  criminal  offences.  

Neither they can claim any privilege nor can it be granted  

by any Court. The law treats all equally.

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14.In our considered opinion, the High Court ought to have  

taken  the  serious  nature  of  allegations,  the  findings  

recorded by the trial Court and the alleged involvement of  

the respondent in more than one case, for deciding as to  

whether  it  is  a  fit  case  for  suspending  the  sentence  

awarded by the trial Court and his release on bail during  

the pendency of the appeal. The impugned order does not  

record any reason whatsoever except vague observation  

that  nature  of  allegations  have  been  taken  into  

consideration.  The  order  clearly  reflects  that  the  High  

Court  was  mainly  impressed  by  the  fact  that  the  

respondent is a sitting M.L.A. In the circumstances,  we  

find it difficult to sustain the order.

15.For  the  aforesaid  reasons,  the  impugned  order  is  set  

aside and the matter is remitted to the High Court for its  

fresh consideration in accordance with law. We make it  

clear that we have not expressed any opinion whatsoever  

as  to  whether  it  is  a  fit  case  for  the  suspension  of  

sentence of the respondent No. 1 during the pendency of  

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the appeal and for release on bail. It is for the High Court  

to  arrive  at  a  proper  conclusion  for  which  purpose,  

reasons are required to be recorded.

16.The appeal is allowed accordingly.

     ..…………………………………..J                                             (B. SUDERSHAN REDDY)

NEW DELHI,      .…………………………………..J. JANUARY  25, 2011.       (SURINDER SINGH NIJJAR)

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