REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.221 OF 2009 (Arising out of SLP(Crl) NO. 8348 OF 2008)

Angana & Anr.                                                        ………….. Appellants

Versus

State of Rajasthan                                                    …………..Respondent

O R D E R

1) Leave granted.

2) This appeal  is directed against  the order passed by the High Court  of

Judicature  for  Rajasthan,  Bench  at  Jaipur,  in  S.B.  Cr.  Misc.  (SOS)

Application  No.  781/2008  in  Criminal  Appeal  No.  758/2008  dated

22.8.2008. By the impugned order, the High Court while admitting the

appeal has rejected the application seeking bail/suspension of sentence

filed by the appellant.

3) Facts  in  brief  are  as  follows;  Complainant  PW/2,  namely,  Bhobal

submitted a written report at police station on 6.3.1993, stating that on

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6.3.1993,  complainant  and other  members  were sleeping  in  the house

when accused/appellants and others who are acquitted, with the intention

of stealing/looting and killing, came inside the house. One Shanti heard

some noise and started shouting. Listening to her cries other members

came out and saw that accused/appellants and other were having kattas.

Then accused/appellants  and other  started assaulting them by gun fire

and pelting stones which in turn caused serious injuries to complainant

and other.  Investigation was conducted and a case was registered under

sections 147,  148, 149,  323,  452 and 307 of the IPC against  fourteen

persons  on 6.3.1997  and  was  committed  to  the  Additional  District  &

Session Judge, Deeg. Accused/appellants and others have stated that in

this  case  first  information  report  of  the  cross-case  of  this  matter  was

lodged  with  the  same  police  station  prior  to  the  present  incident,  in

which death of one Samunder Singh has been caused. Also they argued

that  the  first  information  report  has  been  lodged  by  the  complainant

falsely to be saved of that cross-case. Trial court after hearing the parties

convicted Angna and Chouthi for the charge under section 326 read with

section 34 of IPC and acquitted them from all other charges and all the

other  accused persons  were acquitted  vide  judgment  dated  24.7.2008.

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Accused  were  awarded  sentence  of  four  years  rigorous  imprisonment

with a fine of Rs. 2000/-.

4) Both the accused persons being aggrieved by the said judgment have

filed criminal  appeal before the Hon’ble High Court and also have

filed criminal application under section 389 Cr.P.C. for suspension of

execution of sentence and for releasing the accused/appellants on bail

during pendency of the appeal.  

5) The learned counsel for the accused/appellants contended before the

High Court  that  in  the personal  defence,  the accused fired the gun

shot on the complainant and the complainant also received injuries.

Further, the injuries received by the complainant are not grievous in

nature. It was stated that from the side of the accused also, one person

Samundar  died  on  the  spot  due  to  injuries  inflicted  by  the

complainant side. Because it was a free fight and in private defence,

the fire arm was used. It was further contended that during trial, the

accused  appellants  were  on  bail,  therefore,  looking  to  facts  and

circumstances of the case, the sentence awarded to accused/appellants

be suspended during pendency of the appeal.  

6) The High Court  while rejecting the application filed under Section

389 of Cr.P.C has observed :- “Having heard rival submissions of the

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respective  parties  and upon careful  perusal  of judgment  impugned,

record of the case, more particularly, medical report and statements of

doctors, without expressing any opinion on merits and demerits of the

case  stated  that,  the  inevitable  conclusion  is  that  the  application

seeking suspension of sentence deserves to be rejected and thus, the

bail/suspension of sentence application stands rejected.”

7) Aggrieved  by  the  impugned  order  passed  by  the  High  Court

accused/appellants  have  come  before  us  seeking  suspension  of

execution of sentence and for releasing the appellants on bail during

pendency of the appeal.

8) We have heard learned counsel for the accused/appellants and learned

counsel for the respondents.  

9) Learned  counsel  for  the  appellants,  submitted  that  High  Court  of

Judicature at Jaipur was not justified in not suspending the sentence

of the petitioner and not releasing them on bail during the pendency

of the appeal by merely placing reliance on the medical reports and

statements  of doctors.  It  is  contended by the learned counsel,  that,

High Court failed to consider the fact, that, during trial, the appellants

were on bail  and have already undergone 6 months  26 days and 2

months 24 days sentence respectively of their  actual  sentence. It  is

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further contended that the appeal pending before the High Court is in

continuation  of  the  proceedings.  It  is  argued that  the complainants

were  the  actual  aggressors  causing  injuries  to  several  persons

including appellants and created a false and frivolous case against the

appellants.  It  is  also  submitted  that  the  High  Court  ignored  the

testimony of the medical jurist and the medical reports, who did not

support respondent’s case. It can be said that injuries caused to the

respondents are not of grievous nature caused by fire-arm. Therefore,

learned counsel would submit that the High Court erred in denying

the suspension of sentence or granting bail.

10)Learned counsel for the appellants in support of his submissions  has

relied on the decisions of this court. Reference to those decisions will

be made while discussing the issue canvassed by learned counsel for

the appellants.  

11)In the  instant  case,  an application under  Section 389 of  Cr.P.C. is

filed  for  suspension  of  sentence  by a convict  in  a pending appeal.

The  accused  was  on  bail  when  the  matter  was  pending  before  the

Sessions court. It is not the case of the prosecution that the accused

who is released on bail  would abscond during the pendency of the

appeal. When an appeal is preferred against conviction in the High

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Court,  the  Court  has  ample  power  and  discretion  to  suspend  the

sentence,  but  that  discretion  has  to  be  exercised  judiciously

depending  on  the  facts  and  circumstances  of  each  case.   While

considering the suspension of sentence, each case is to be considered

on the basis of nature of the offence, manner in which occurrence had

taken  place,  whether  in  any  manner  bail  granted  earlier  had  been

misused.   In  fact,  there  is  no  strait  jacket  formula  which  can  be

applied in exercising the discretion.  The facts and circumstances of

each  case  will  govern  the  exercise  of  judicial  discretion  while

considering the application filed by the convict under Section 389 of

Criminal Procedure Code.  

12)This Court in the case of Takhat Singh and Others vs. State of M.P.,

(2001) 10 SCC 463, has held that, “the appellants are already in jail

for over three years and 3 months.  There is  no possibility of early

hearing  of  the  appeal  in  the  High  Court.  In  the  aforesaid

circumstances the applicants be released on bail to the satisfaction of

the learned Chief Judicial Magistrate, Sehore.”  

13)Reference  can  made  to  the  decision  of  this  court  in  the  case  of

Kashmira Singh vs. State of Punjab, (1997) 4 SCC 291, where this

Court has observed that:  

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“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  Indian  Penal  Code.  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 application 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

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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.”  

The Court going by the said consideration held that:-

“that so long as the Supreme 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  where  special  leave  has  been  granted  to  the accused to  appeal  against  his  conviction  and sentence. The other  consideration,  however,  is  equally important and relevant. When a person is convicted by an appellate court, he cannot be said to be an innocent person until the final decision is recorded by the superior court in his favor. ”

14)In the case of Babu Singh vs. State of U.P., 1978 (1) SCC 579, it was

observed,  that,  the  significance  and  sweep  of  Article  21  make the

deprivation of liberty a matter of grave concern and permissible only

when the law authorising it is reasonable, even-handed and geared to

the goals of community good and State necessity spelt out in Article

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19. Indeed, the considerations I have set out as criteria are germane to

the  constitutional  proposition  I  have  deduced.  Reasonableness

postulates intelligent care and predicates that deprivation of freedom

by refusal  of  bail  is  not  for  punitive  purpose  but  for  the  bi-focal

interests of justice—to the individual involved and society affected.

15)In Emperor v. H.L. Hutchinson, AIR 1931 All 356, it was observed

that:-

“As  to  the  object  of  keeping  an  accused  person  in detention  during  the  trial,  it  has  been  stated  that  the object is not punishment, that to keep an accused person under  arrest  with  the  object  of  punishing  him  on  the assumption  that  he  is  guilty  even  if  eventually  he  is acquitted is  improper.  This  is  most  manifest.  The only legitimate  purposes  to  be  served  by  keeping  person under trial  in detention are to prevent  repetition of the offence  with  which  he  is  charged  where  there  is apparently  danger  of  such repetition  and  to  secure  his attendance at the trial. The first of those purposes clearly to some extent involves an assumption of the accused’s guilt, but the very trial  itself is based on a prima facie assumption of the accused’s guilt and it is impossible to hold that in some circumstances it is not a proper ground to  be  considered.  The  main  purpose  however  is manifestly to secure the attendance of the accused.”

16)            In the case of Bhagwan Rama Shinde Gosai v. State of Gujarat,

(1999) 4 SCC 421, this Court has stated that when a convicted person

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is sentenced to a fixed period of sentence and when he files an appeal

under any statutory right, suspension of sentence can be considered

by  the  appellate  court  liberally  unless  there  are  exceptional

circumstances. The Court has observed :  

“3. 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  can  be  considered  by  the appellate  court  liberally  unless  there  are  exceptional circumstances. Of course if there is any statutory restriction against  suspension  of  sentence  it  is  a  different  matter. Similarly,  when  the  sentence  is  life  imprisonment  the consideration  for  suspension  of  sentence  could  be  of  a different  approach.  But  if  for  any reason  the sentence  of  a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence. So as  to  make  the  appeal  right,  meaningful  and  effective.  Of course appellate courts  can impose similar conditions  when bail is granted.”

17)This Court in the case of Suresh Kumar and Others Vs. State (NCT of

Delhi), (2001) 10 SCC 338, where the appellants had been convicted

under Section 307 read with Section 34 of the Indian Penal Code and

each was sentenced to imprisonment for a period of three years and to

pay fine of Rs. 2000/-, when they moved an application under Section

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389 of Code of Criminal Procedure for suspension of the sentence of

imprisonment,  the  High  Court  had  rejected  the  application.   This

Court following the observations made in the case of  Bhagwan Rama

Shinde Gosai, while allowing the appeal filed by the convict, had kept

in abeyance the order of conviction passed by the trial court till the

disposal of the appeal filed by the convict and also had directed the

release of the convict on bail.   

18)    In Kishori Lal Vs. Rupa and Others, (2004) 7 SCC 638, this Court

has indicated the factors that require to be  considered by the courts

while granting benefit under Section 389 in cases involving serious

offences like murder etc., it is useful to refer to the observations made

therein.  They are :-

“4. Section 389 of the Code deals with suspension of execution of sentence pending the  appeal  and release of the appellant on bail.  There is a distinction between bail and  suspension  of  sentence.  One  of  the  essential ingredients  of  Section  389  is  the  requirement  for  the appellate  court  to record reasons in  writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that  he  be  released  on  bail  or  on  his  own  bond.  The requirement  of  recording  reasons  in  writing  clearly indicates that there has to be careful consideration of the relevant  aspects  and  the  order  directing  suspension  of sentence and grant of bail should not be passed as a matter of routine.

5. The  appellate  court  is  duty-bound  to  objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence

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and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation  of  misuse  of  liberty  during  the  earlier  period when the accused-respondents were on bail.

6. The mere fact that during the trial, they were granted bail  and there was no allegation of  misuse of  liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per  se  warrant  suspension  of  execution  of  sentence  and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the  execution  of  sentence  and  thereafter  grant  bail.  The High  Court  does  not  seem  to  have  kept  the  correct principle in view.”

19)The aforesaid view is reiterated by this court in the case of Vasant

Tukaram Pawar  Vs.  State  of  Maharashtra,  (2005)  5  SCC 281  and

Gomti Vs. Thakurdas and Others, (2007) 11 SCC 160.  

20)In  Sidharth  Vashisht  @  Manu  Sharma  Vs.  The  State  (N.C.T.  of

Delhi), (2008) 5 SCC 230, this Court after considering all the earlier

decisions  on  the  issue  of  consideration  of  an  application  under

Section 389 of the Code of Criminal Procedure, has concluded, that in

serious  offences  like  murder,  sentence  would  generally  be  not

suspended by court.   

21)In the present case, the appellants were on bail during the pendency

of  the  case  before  the  Sessions  Court.  The  Sessions  Court  has

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acquitted most of the accused persons after trial except the appellants.

It is not the case of the other side, that, when the accused were on bail

they  had  indulged  themselves  in  any  offence  either  under  the

provisions of Indian Penal Code or any other Statute.  It is also not

the case of the prosecution that when the appellants were on bail they

had  either  jumped  the  bail  or  were  any  way  responsible  for

prolonging the proceedings before the Sessions Court, and it is also

not the case of the other side that they would abscond and would not

be available, to undergo the sentence if the appellate court affirms the

order passed by the Sessions Court.

22)Taking into consideration over all view of the matter and in particular

offence  alleged  and  sentence  imposed  and  further  taking  into

consideration the acquittal of other accused persons, who were also

charge  sheeted  in  the  same offences  as  that  of  the  appellants  and

further taking into consideration the conduct of the appellants during

the trial  before the Sessions  Court  when they were on bail,  in  our

view the High Court could have suspended the sentence and granted

bail to the appellants.  Therefore, this Court would be justified under

Article  136  of  the  Constitution  in  interfering  with  the  discretion

exercised by the High Court.  We, therefore, suspend the sentence and

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direct  the  appellants  to  be  released  on  bail  on  each  one  of  them

executing  a  bond  with  two  solvent  sureties  to  the  satisfaction  of

Additional District and Sessions Judge, Deeg.

23)The appeal is disposed of, ordered accordingly.

                                                                                 …………………………………J.                                                                                    [ TARUN CHATTERJEE ]

                                                                                 …………………………………J.                                                                                    [ H.L. DATTU ] New Delhi, February   6, 2009.

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