Patna High Court – Orders
Mukesh Pal vs The State Of Bihar on 1 August, 2025
Author: Prabhat Kumar Singh
Bench: Prabhat Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.727 of 2019
Arising Out of PS. Case No.-59 Year-2015 Thana- BHAGWANPUR HAT District- Siwan
======================================================
MUKESH PAL SON OF MOKHTAR PAL RESIDENT OF VILLAGE-
CHORAULI, P.S.-BHAGWANPUR HAT, DISTRICT-SIWAN.
... ... Appellant/s
Versus
THE STATE OF BIHAR
... ... Respondent/s
======================================================
Appearance :
For the Appellant : Mr. Sheojee Mishra, Advocate
Mr. Pratik Mishra, Advocate
For the State : Mr. Satya Narayan Prasad, APP
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
11 01-08-2025
Re: I.A. No. 02 of 2025:-
Heard Mr. Sheo Jee Mishra, learned counsel
appearing for the applicant/appellant assisted by Mr. Pratik
Mishra and Mr. Satya Narayan Prasad, learned Additional
Public Prosecutor appearing for the respondent-State.
2. The present successive interlocutory application
has been filed by the applicant/appellant under Section 430(1)
of the B.N.S.S. with a prayer that the applicant/appellant be
released on bail and the sentence imposed by the learned trial
court be suspended during pendency of the present appeal.
3. Learned advocate for the applicant/appellant has
referred the order dated 19.07.024 passed by this Court in I.A.
Patna High Court CR. APP (DB) No.727 of 2019(11) dt.01-08-2025
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No. 01 of 2021 whereby this Court has directed the Office to
prepare the paper-book and list the appeal under the caption
“For Hearing” in the week commencing from 11th November,
2024 looking to the fact that the applicant/appellant is in
custody for last more than nine years. It is further submitted that
this Court had also granted liberty to the applicant/appellant to
file separate I.A. if the appeal is not heard before 10 th January,
2025. Pursuant to the aforesaid liberty granted by this Hon’ble
Court, the applicant/appellant has preferred the present I.A.
4. It is mainly contended that the appeal is already on
the list. However, the said appeal is not taken up for hearing and
as the applicant/appellant is in custody for last more than ten
years, the applicant/appellant be released on bail and the
sentence imposed by the learned trial court be suspended during
pendency of the present appeal.
5. Learned counsel for the applicant/appellant has
placed reliance upon the judgment rendered by the Hon’ble
Supreme Court in the case of Kashmira Singh versus The State
of Punjab reported in (1977) 4 SCC 291. Learned counsel has
also placed reliance on the order dated 05.10.2021 rendered by
the Hon’ble Supreme Court in the case of Saudan Singh versus
the State of Uttar Pradesh arising out of Special Leave to
Patna High Court CR. APP (DB) No.727 of 2019(11) dt.01-08-2025
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Appeal (Crl.) No. 4633 of 2021. After referring to the aforesaid
judgments, learned counsel for the applicant/appellant submits
that the applicant/appellant is in custody since last more than ten
years and only on this ground he may be released on bail.
6. On the other hand, learned A.P.P. submits that
applicant/appellant is convicted for committing the offence
punishable under Section 302 of the Indian Penal Code and has
been sentenced to suffer R.I. for life. This Court has, therefore,
not entertained the application submitted by the
applicant/appellant on merits. However, liberty was reserved to
file the I.A. It is further submitted by learned A.P.P. that the
appeal is already on the list and, therefore, the said appeal will
be taken up on its own merits. It is also submitted that this Court
cannot re-appreciate the evidence on merits and thereafter
consider the application filed by the applicant/appellant under
Section 430(1) of the B.N.S.S. at this stage. It is further
submitted that, recently, the Hon’ble Supreme Court vide order
dated 09.04.2025 passed in the case of Janardan Ray versus
the State of Bihar and another arising out of Cr. Appeal Nos.
1892-1893 of 2025 has specifically observed that in the case of
conviction under Section 302 of the Indian Penal Code, the
initial presumption available to the accused before conviction
Patna High Court CR. APP (DB) No.727 of 2019(11) dt.01-08-2025
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would not be available to him. The Hon’ble Supreme Court has
further observed that consideration of the High Court to the
submission made on behalf of the accused that he has not
misused the liberty during the trial or that the appeal was not
likely to be heard in near future could not be said to be proper
consideration for suspending the sentence of the accused who
have been convicted for the serious offence under Section 302
of the Indian Penal Code. It is only in rare and exceptional
circumstances that the benefit of suspension of sentence should
be granted by the appellate court to the accused convicted for
the serious offence under Section 302 of the Indian Penal Code.
Learned A.P.P., therefore, urgeed that prayer for grant of bail to
the applicant/appellant and suspension of sentence during
pendency of the appeal may not be entertained.
7. We have considered the submissions canvassed by
learned advocates. We have also perused the materials available
on record and the decisions of the Hon’ble Supreme Court upon
which reliance has been placed by learned counsel for the
parties. It is not in dispute that the present is the third
successive application filed by the applicant/appellant with the
same prayer for grant of bail and suspension of the sentence
during pendency of the appeal. It is true that this Court vide
Patna High Court CR. APP (DB) No.727 of 2019(11) dt.01-08-2025
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order dated 19.07.2024 had directed the Office to list the matter
under the caption “For Hearing” in the week commencing from
11th November, 2024 while granting liberty to the
applicant/appellant to file separate I.A., if the appeal is not
heard within the stipulated time. Now, learned counsel for the
applicant/appellant has fairly submitted that pursuant to the
aforesaid direction of this Court, the appeal has already been
listed before the concerned Court, however, because of the
pendency of other old appeals, the present appeal has not been
heard.
8. We are, therefore, of this view that pursuant to the
order passed by this Court, the appeal has already been listed
before the concerned Division Bench.
9. Further, in the case of Janardan Ray (supra),
recently, the Hon’ble Supreme Court has observed in Paragraph
No. 7 as under:-
“7. Having regard to the aforestated settled legal
position, we are of the opinion that the High Court
has committed gross error in appreciating the
evidence already appreciated by the Trial Court at the
time of considering the applications seeking
suspension of sentence pending the appeal. Since this
was a case of conviction under Section 302 IPC, the
initial presumption available to the accused before
conviction, would not be available to him. The High
Court could not have suspended the sentence,
reappreciating the evidence at the stage of Section
389 and trying to pick up a few lacunae or loopholes
Patna High Court CR. APP (DB) No.727 of 2019(11) dt.01-08-2025
6/11here or there in the case of prosecution. The
consideration of High Court to the submission made
on behalf of the accused that he had not misused the
liberty during the trial or that the appeal was not
likely to be heard in near future, could not be said to
be the proper consideration for suspending the
sentence of the accused, who have been convicted for
the serious offence under Section 302, IPC. It is only
in rare and exceptional circumstances, the benefit of
suspension of sentence should be granted by the
appellate court to the accused convicted for the
serious offence under Section 302, IPC.”
10. It is not in dispute that the applicant/appellant
herein is convicted for the offence punishable under Section 302
of the I.P.C. and has been sentenced to suffer rigorous
imprisonment for life. Further, this Court has rejected the prayer
for grant of bail to the applicant/appellant on more than two
occasions. Therefore, the only contention taken by the
applicant/appellant is that he is in custody for more than 10
years and, therefore, he may be released on bail. However, we
are of the view that in the aforesaid paragraph, recently, the
Hon’ble Supreme Court has specifically observed that the
appeal is not likely to be heard in near future could not be said
to be proper consideration for suspending the sentence of the
accused who have been convicted for the serious offence under
Section 302 of the I.P.C. It is only in rare and exceptional
circumstances, the benefit of suspension of sentence should be
granted by the appellate court to the accused convicted for
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serious offence under Section 302 of the I.P.C..
11. At this stage, we would also like to refer the
decision rendered by the Hon’ble Supreme Court in the case of
Sidhartha Vashisht @ Manu Sharma versus State (N.C.T. of
Delhi) reported in (2008) 5 SCC 230, wherein the Hon’ble
Supreme Court has considered the decision rendered by the
Hon’ble Supreme Court in the case of Kashmira Singh (supra)
and other decisions and thereafter observed in Paragraph Nos.
28, 30 and 33 as under:-
“28. In Kashmira Singh [(1977) 4 SCC 291 :
1977 SCC (Cri) 559] this Court stated : (SCC pp. 292-
93, para 2)
“2. … Now, the practice in this Court as also in
many of the High Court has been not to release on
bail a person who has been sentenced to life
imprisonment for an offence under Section 302 of
the Penal Code, 1860. The question is whether this
practice should be departed from and if so, in what
circumstances. It is obvious that no practice
howsoever sanctified by usage and hallowed by time
can be allowed to prevail if it operates to cause
injustice. Every practice of the Court must find its
ultimate justification in the interest of justice. The
practice not to release on bail a person who has
been sentenced to life imprisonment was evolved in
the High Courts and in this Court on the basis that
once a person has been found guilty and sentenced
to life imprisonment, he should not be let loose, so
long as his conviction and sentence are not set
aside, but the underlying postulate of this practice
was that the appeal of such person would be
disposed of within a measurable distance of time, so
that if he is ultimately found to be innocent, he
would not have to remain in jail for an unduly long
period. The rationale of this practice can have no
Patna High Court CR. APP (DB) No.727 of 2019(11) dt.01-08-2025
8/11application where the Court is not in a position to
dispose of the appeal for five or six years. It would
indeed be a travesty of justice to keep a person in
jail for a period of five or six years for an offence
which is ultimately found not to have been
committed by him. Can the Court ever compensate
him for his incarceration which is found to be
unjustified? Would it be just at all for the Court to
tell a person:’We have admitted your appeal
because we think you have a prima facie case, but
unfortunately we have no time to hear your appeal
for quite a few years and, therefore, until we hear
your appeal, you must remain in jail, even though
you may be innocent?’ What confidence would such
administration of justice inspire in the mind of the
public? It may quite conceivably happen, and it has
in fact happened in a few cases in this Court, that a
person may serve out his full term of imprisonment
before his appeal is taken up for hearing. Would a
judge not be overwhelmed with a feeling of
contrition while acquitting such a person after
hearing the appeal? Would it not be an affront to his
sense of justice? Of what avail would the acquittal
be to such a person who has already served out his
term of imprisonment or at any rate a major part of
it? It is therefore, absolutely essential that the
practice which this Court has been following in the
past must be reconsidered and so long as this Court
is not in a position to hear the appeal of an accused
within a reasonable period of time, the Court should
ordinarily, unless there are cogent grounds for
acting otherwise, release the accused on bail in
cases where special leave has been granted to the
accused to appeal against his conviction and
sentence.”
30. Mr Gopal Subramanium, learned Addl.
Solicitor General invited our attention to Akhilesh
Kumar Sinha v. State of Bihar [(2000) 6 SCC 461 :
2000 SCC (Cri) 1126] , Vijay Kumar v. Narendra
[(2002) 9 SCC 364 : 2003 SCC (Cri) 1195 : JT 2002
Supp (1) SC 60] , Ramji Prasad v. Rattan Kumar
Jaiswal [(2002) 9 SCC 366 : 2003 SCC (Cri) 1197 : JT
Patna High Court CR. APP (DB) No.727 of 2019(11) dt.01-08-2025
9/11(2000) 7 SC 477] , State of Haryana v. Hasmat [(2004)
6 SCC 175 : 2004 SCC (Cri) 1757 : JT (2004) 6 SC
6] , Kishori Lal v. Rupa [(2004) 7 SCC 638 : 2004 SCC
(Cri) 2021 : JT (2004) 8 SC 317] and State of
Maharashtra v. Madhukar Wamanrao Smarth [(2008)
5 SCC 721 : (2008) 4 Scale 412 : JT (2008) 4 SC
461] . In the above cases, it has been observed that
once a person has been convicted, normally, an
appellate court will proceed on the basis that such
person is guilty. It is no doubt true that even thereafter,
it is open to the appellate court to suspend the sentence
in a given case by recording reasons. But it is well
settled, as observed in Vijay Kumar [(2002) 9 SCC 364
: 2003 SCC (Cri) 1195 : JT 2002 Supp (1) SC 60] that
in considering the prayer for bail in a case involving a
serious offence like murder punishable under Section
302 IPC, the Court should consider all 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, the
desirability of releasing the accused on bail after he
has been convicted for committing serious offence of
murder, etc. It has also been observed in some of the
cases that normal practice in such cases is not to
suspend the sentence and it is only in exceptional cases
that the benefit of suspension of sentence can be
granted.
33. 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 offences with which he was charged,
Patna High Court CR. APP (DB) No.727 of 2019(11) dt.01-08-2025
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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.”
12. At this stage, it is required to be observed that
Hon’ble Supreme Court, in the case of Saudan Singh (supra),
has carved out an exception. However, it is submitted by learned
counsel appearing on behalf of the applicant/appellant that the
case of the applicant/appellant does not fall in the said
exception.
13. However, the Hon’ble Supreme Court in its recent
order dated 09.04.2025 passed in the case of Janardan Ray
(supra) has specifically made the aforesaid observation that the
appeal is not likely to be heard in near future could not be said
to be a proper consideration for suspending the sentence of the
accused who have been convicted for the serious offence under
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Section 302 of the I.P.C. and, therefore, we are of the view that
the request made by the applicant/appellant cannot be
entertained at this stage. More particularly, it is not in dispute
that the appeal filed by the applicant/appellant has already been
listed before the concerned Division Bench and, therefore, it is
always open for the learned counsel appearing on behalf of the
applicant/appellant before the said Bench to make request for
the appeal to be taken up for final disposal looking to the fact
that the applicant/appellant is in custody for last more than ten
years.
14. In view of the aforesaid discussions, we are not
inclined to entertain the present interlocutory application.
15. Accordingly, this interlocutory application is
dismissed.
(Vipul M. Pancholi, CJ)
( Prabhat Kumar Singh, J)
shashank/K.C.
U T