Sidhartha Vashisht @ Manu Sharma vs State (Nct Of Delhi)

3. Shortly stated, the case of the prosecution was that on April 29-30, 1999, a party was organized at `Tamarind Cafi' inside Qutub Colonnade. It was a private party where certain persons were invited and liquor was served. Jessica Lal (since deceased) and one Shyan Munshi were in charge of the bar. It was the allegation of the prosecution that appellant Sidhartha Vashisht @ Manu Sharma along with his friends came there and asked for liquor. Jessica Lal and Shyan Munshi did not oblige him by providing liquor since the bar was closed. According to the prosecution, the appellant got enraged on refusal to serve liquor, took out his .22 pistol and fired two 3 rounds, first into the ceiling and the second at Jessica Lal. Jessica Lal fell down as a result of the shot which proved fatal and she died. According to the assertion of the prosecution, several persons witnessed the incident. Beena Ramani, who was present, stopped the appellant and questioned him as to why he had shot Jessica Lal. She also demanded weapon from the accused but the accused did not handover pistol and fled away.

4. FIR was lodged, a case was registered and investigation was carried out. At the trial, more than 100 witnesses had been examined. The trial Court acquitted the accused holding that it was not proved by the prosecution that the accused had committed the offence with which he, along with other accused, was charged.

5. The State preferred an appeal against an order of acquittal recorded by the trial Court. The High Court of Delhi held that the trial Court was wrong in acquitting the accused 4 and the prosecution was successful in proving the guilt against the appellant (as well as two other accused) and accordingly recorded conviction inter alia for an offence punishable under Section 302, Indian Penal Code (IPC) and imposed sentence of imprisonment for life.

6. The High Court observed that it has "no hesitation in holding" that the appellant was guilty of an offence punishable under Section 302 read with Sections 201 and 120B, IPC and also under Section 27 of the Arms Act, 1959 for having committed murder of Jessica Lal on April 29-30, 1999 at `Tamarind Cafi' and ordered him to undergo rigorous imprisonment for life and also imposed sentence for other offences.

8. The appellant-applicant approached this Court by instituting an appeal under 5 Section 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 as also under Section 379 of the Code. The appeal was placed for admission. On March 7, 2007, the appeal was admitted and notice was issued on application for bail. Counsel appeared on behalf of the respondent and accepted the notice. It was ordered to be listed in the first week of April, 2007, meanwhile, counter affidavit, if any, was to be filed.

9. On April 2, 2007 when the matter appeared on Board, the Court passed orders of bail in respect of other accused, but in the instant case (Crl.M.P. No. 1775 of 2007), the Court fixed final hearing of the matter. It, however, appears that the appeal could not be heard. On January 24, 2008, the Court ordered listing of appeals along with bail applications "before any other appropriate Bench" on 12th February, 2008. The matter was thus placed before this Bench.

20. It is premature to express any opinion, one way or the other at this stage but the fact remains that the order of acquittal recorded by the trial Court has been set aside and the applicant-accused has been convicted for an offence punishable under Section 302, IPC and ordered to undergo imprisonment for life.

24. The above principle has been reiterated from time to time thereafter.

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.

(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 the 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.

26. Bare reading of the above provision makes it clear that during the pendency of appeal, an appellate Court is empowered to suspend sentence on the appellant by releasing him on bail. Such action, however, can be taken only after affording opportunity to the Public Prosecutor in case of offence punishable with death or imprisonment for life or imprisonment for ten years or more and after recording reasons in writing.

28. As observed in those cases, the practice of not releasing a person on bail who had been sentenced for imprisonment for life under Section 302, IPC was that the appeal was likely to be heard in near future. But if such appeal would not be heard for long and not disposed of within a `measurable distance of time', it would not be in the interest of justice to keep such person in jail for a number of years and it would be appropriate if the power under Section 389 of the Code is exercised in favour the applicant.

(emphasis supplied)

34. The mere fact that during the period of trial, the accused was on bail and there was no misuse of liberty, does not per se warrant suspension of execution of sentence and grant of bail. What really necessary is to consider whether reasons exist to suspend execution of the sentence and grant of bail.

35. On the facts and in the circumstances of the case, in our considered opinion, this is not a fit case to exercise power under Section 389 of the Code. Though the trial Court has acquitted the applicant-accused for the 2 offences with which he was charged, the High Court reversed the order of acquittal and convicted him under Section 302, IPC and ordered him to undergo rigorous imprisonment for life. Being aggrieved by the said order, he has filed an appeal which has been admitted, is already on board and awaits final hearing. Hence, within `measurable distance of time' the appeal is likely to be heard. Keeping in view the seriousness of offence, the manner in which the crime was said to have been committed and the gravity of offence, we are of the view that no case has been made out by the applicant- appellant for suspension of sentence and grant of bail. The application deserves to be dismissed and is accordingly dismissed.

36. Before parting with the matter, we may clarify that we may not be understood to have expressed any opinion on merits of the matter one way or the other and all the observations made by us hereinabove should be taken as confined to dealing with the prayer of the 2 applicant-appellant under Section 389 of the Code. As and when the main matter i.e. criminal appeal will come up for hearing, it will be decided on its own merits without being inhibited or influenced by the observations in this order.

37. The application is accordingly disposed of.