MOHAMMAD ARIF Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) INSTANT criminal misc. application has been filed at the behest of the complainant under Sec. 389 read with 439(2) of the Code of Criminal Procedure seeking cancellation of bail/suspension of sentence granted by the Court vide order dt. 10.02.2012 in D.B. Criminal Misc. Second Suspension of Sentence Application No. 1382/2011 arising out of D.B. Criminal Appeal No. 1111/2008. As it reveals from the record that present accused Abrar S/o Gosh Mohd. filed first application for suspension of sentence in D.B. Criminal Appeal No. 1111/2008 against the judgment dt. 30.06.2008 convicting him for offence under Sec. 302 read with 34 IPC and his first application for suspension of sentence came to be rejected by the Court vide order dt. 10.12.2008 and that was assailed by the present accused by filing Special Leave to Appeal (Crl) CRL.MP. No(s). 22570/2009 and that came to be rejected on 18.12.2009 and after its rejection the accused preferred second application for suspension of sentence ( No. 1382/2011). At the outset it will be appropriate to refer that this fact was not mentioned in the application that he approached to the Hon'ble Supreme Court and his Special Leave Petition came to be rejected on 18.12.2009 nor this fact was mentioned at the time when submissions were made. However, this Court while examining his second application for suspension of sentence took note of the fact that other co -accused Vakil Ahmed who too was convicted for offence under Sec. 302 read with 34 IPC, his application for suspension of sentence was allowed by this Court on 29.12.2008 and the present accused also deserves parity & indulgence for grant of suspension of sentence and that appears to be the primary reason granting indulgence to the present accused Abrar for suspension of his sentence by the Court while passing order dt. 10.02.2012.

(2.) AFTER grant of second application for suspension of sentence on 10.02.2012, the complainant moved instant application for cancellation of suspension of sentence primarily on the premise that this fact was not brought to the notice of the Court that after rejection of his first application for suspension of sentence on 10.12.2008 he approached to the Hon'ble Supreme Court and his petition came to be rejected on 18.12.2009 and if this fact would have been brought to the notice of the Court what would be its effect could not be visualised and this being a material concealment the present application filed by the complainant for cancellation of suspension of sentence as regards present accused Abrar deserves acceptance.

(3.) WE are not at this stage supposed to examine merits as regards grant of second application for suspension of sentence by this Court on 10.02.2012, and there may be some merit in what is being contended by the accused appellant but here we are of the view that once this fact remain on record that he approached to the Hon'ble Supreme Court after rejection of his first application on 10.12.2008 and his Special Leave to Petition was rejected on 18.12.2009 it was his bounden duty to mention this fact in his second application for suspension of sentence and in our considered view it is, certainly a material concealment which disentitles the accused to seek indulgence of this Court for liberty of suspension of sentence as granted to him vide order dt. 10.02.2012.