Excelsior Correspondent
Srinagar, Oct 17: The High Court today rejected the bail application of main accused Mushtaq Ahmad Peer involved in infamous Board of Professional Entrance Examination (BOPEE) scam.
Justice Sanjeev Kumar while rejecting the bail plea of accused-Peer , said, though it is not correct position of law, that the appellant whose appeal against his conviction is pending, continues to be an under trial prisoner, yet the benefit of Section 497-D of the Code of Criminal procedure cannot be extended to the appellant for the reason that he has not yet undergone detention exceeding up to one-half of the total sentence inflicted on him.
Court said, the appellant-accused has been sentenced for commission of different sentences for different durations and the sentences have been provided to run consecutively.
“That being the position, it is beyond cavil of any doubt that the appellant is not eligible for the benefit of release on his personal bond with or without sureties, as envisaged under Section 497-D of the Code of Criminal procedure”, Court said and concluded the application is found to be without any merit and is, accordingly, dismissed.
The application was third in series, has been filed by the appellant-Peer seeking suspension of sentence and release on bail in case FIR No. 24/2013 for offences under Sections 420, 406, 201 and 120-B RPC read with Section 5(1)(d) and 5(2) of the Prevention of Corruption Act.
The first two applications, which were filed by the appellant seeking same relief, have already been dismissed by this Court and the instant application was filed by the appellant on the ground that during investigation, trial and after conviction, he has remained in detention for more than three years and six months and, therefore, is entitled to be released in terms of Section 497-D of the Code of Criminal procedure.
On this context, Court observed that the expression ‘ under trial prisoner’ used in Section 497-D of the Code of Criminal procedure has to be understood in the context of the provisions of the Section, which clearly speak of maximum period of imprisonment specified for offences and not the maximum period of sentence inflicted by the Competent Court.
“The expression ‘under trial prisoner, as used in Section 497-D of the Code of Criminal procedure is, therefore, required to be restricted to a person who is in detention during the period of investigation, inquiry or trial and not to a person who is undergoing the sentence for having been convicted by a competent Court of law”, read the judgment.
Peer has been sentenced for commission of different sentences for different durations and the sentences have been provided to run consecutively.
Court said, that being the position, it is beyond cavil of any doubt that the appellant is not eligible for the benefit of release on his personal bond with or without sureties, as envisaged under Section 497-D of the Code of Criminal procedure.
Peer was convicted by the Anti Corruption Court Srinagar for offence under Section 420 RPC for 7 years and after expiry of this sentence the sentence of 5 years, which has been awarded for offence under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act would start.
His further sentence would be followed by 3 years imprisonment under Section 409 RPC and lastly the sentence of one year for offence under Section 120-B RPC would commence.
Since these sentences would run consecutively, i.e. one after the other, as such, the one-half of the maximum period of sentence for the purposes of Section 497-D of the Code of Criminal procedure would come to 7 ½ years.
“As per own showing, the appellant has only undergone 3 ½ years imprisonment, which does not represent half of the sentence which the appellant is supposed to undergo if the judgment of conviction is upheld and attains finality”, Court said.
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