Supreme Court "disappointed" with another Allahabad HC order, remands case for fresh hearing

The Supreme Court on August 6 expressed disappointment at an order passed by the Allahabad High Court in a case under the Protection of Children from Sexual Offences Act (POCSO Act) and said that the reasoning adopted by the High Court failed to apply binding legal principles [Aasif Pasha vs State of UP]

The Court said that this was yet another instance of an order from the Allahabad High Court with which the top court was "disappointed".

“The impugned order is one more from the High Court of Judicature at Allahabad with which we are disappointed,” the Bench of Justices JB Pardiwala and R Mahadevan said.

The same Bench had recently taken strong exception to another order passed by Justice Prashant Kumar of the Allahabad High Court and had gone to extent of ordering that Justice Kumar be de-rostered from hearing criminal matters.

In the present case, the Court was dealing with a plea filed by one Aasif alias Pasha, who had been convicted by the special court in Meerut and sentenced to four years of rigorous imprisonment for offences under Sections 7 and 8 of the POCSO Act and under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

He was also sentenced under Sections 354, 354-Kha, 323, and 504 of the Indian Penal Code. All sentences were ordered to run concurrently.

The conviction was challenged before the Allahabad High Court. While that appeal is still pending, the High Court on May 29 declined the appellant’s application under Section 389 CrPC seeking suspension of sentence. It held:

“This Court does not find any good or sufficient ground so as to enlarge the applicant/appellant on bail during the pendency of present appeal.”

The Supreme Court clarified that this was a case of a fixed-term sentence and not one involving life imprisonment or other statutory restrictions. Citing its 1999 ruling in Bhagwan Rama Shinde Gosai v. State of Gujarat, the Court said:

“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 should be considered by the appellate court liberally unless there are exceptional circumstances.”

The Bench further emphasised when the appellate court finds that due to practical reasons, such appeals cannot be disposed of expeditiously, the appellate court must show special concern in the matter of suspending the sentence so as to make the appeal right, meaningful and effective.

“Otherwise the very valuable right of the appellant would be an exercise in futility by afflux of time," the Court further noted.

Suspension of sentence in such cases cannot be decided mechanically, especially when the appeal is unlikely to be taken up anytime soon, the Bench underscored.

“Ultimately, if 4 years are to elapse in jail the same would render the appeal infructuous and that would be travesty of justice,” the Bench said.

The Court further said that the High Court is not expected to rehear the entire prosecution case at the suspension stage.

The apex court criticised the approach taken by the High Court.

“What the High Court did was to reiterate the entire case of the prosecution and the oral evidence which has come on record. That is not the correct approach,” it said.

The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution and such an approach is incorrect, the Supreme Court said.

The Bench made it clear that though suspension of sentence in serious offences like murder must be approached with caution, this case was clearly distinguishable due to the fixed nature of the sentence.

Hence, it set aside the High Court’s order and remanded the matter back to the High Court for fresh hearing.

“The High Court shall re-hear the application filed by the appellant – herein afresh at the earliest and pass an appropriate order within 15 days from today,” the Court stated.

The court stated that it was "once again constrained to observe that such errors creep in at the level of High Court and only because the well-settled principles of law on the subject are not applied correctly.”

[Read Order]