REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON

CRIMINAL APPEAL NO.               OF 2008 (Arising out of S.L.P. (Crl.) Nos.7747-7748 of 2007)

Gajraj Yadav …Appellant

Versus

Rajendra Singh @ Deena & Ors.       …Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in these appeals is to the order passed by a Division Bench

of the Rajasthan High Court directing suspension of sentence awarded to

the respondents. It was directed that such suspension was to take effect on

each one of them by furnishing a bond in the sum of Rs.50,000/- together

with two sureties in the sum of Rs.25,000/- each to the satisfaction of the

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trial Court for the appearance before the High Court and on dates of hearing

unless  otherwise  directed.   The  order  was  to  operate  in  respect  of  the

respondents who are the appellants in Criminal Appeal Nos.1420 and 1431

of 2007 pending before the Rajasthan High Court.  It is to be noted that 51

persons were put on trial and 18 were convicted.  Along with the appeals,

the  respondents  filed  application  for  suspension  of  sentence  in  terms  of

Section 389 of the Code of Criminal Procedure, 1873 (in short ‘Code’).

3. Impugning the order passed by the High Court the informant has filed

these appeals.  The respondents along with one Girdhari were convicted by

learned Sessions Judge, Kotputali Dist. Jaipur, Rajasthan, in Sessions case

no.16  of  2001.   The  accused-respondents  were  convicted  for  offence

punishable under Sections 148, 325 read with Section 149, 324 read with

Section 149, Section 323 read with Section 149, 427, 455 and 302 read with

Section 109 of the Indian Penal Code, 1860 (in short ‘IPC’).

4. The following sentences were imposed:

148 IPC One year Six months RI  325/149 IPC Two years RI and to pay a fine of Rs.500/-, in

default of payment of fine, to further undergo RI for three months.  

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324/149 IPC One year RI and to pay a fine of Rs.200/-, in default of payment of fine, to further undergo RI for two months.

323/149 IPC Six months RI and to pay a fine of Rs.200/-, in default of payment of fine, to further undergo RI for two months.

427 IPC Six months RI and to pay a fine of Rs.200/- in dafult of payment of fine, to further undergo RI for two months.     

455/149 IPC Three years RI and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo RI for six months.

302/149 IPC Imprisonment  for  life  and  to  pay  a  fine  of Rs.10000/-,  in  default  of  payment  of  fine,  to further undergo RI for two years.

4. All  the  aforesaid  substantive  sentences  were  ordered  to  be  run

concurrently.    

5. As noted above, out of 51 accused persons, 18 persons, including the

appellants before the High Court were convicted and two had died during

trial.  They  had  prayed  for  suspension  of  the  sentence  which  by  the

impugned order was accepted.

6. The High Court stated that without appreciating the case on merit and

demerits of the case, it is allowing the petition.

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7. Learned counsel for the appellant submitted that approach of the High

Court is clearly erroneous. For exercising power under Section 389 of the

Code certain parameters have been fixed which have not been kept in view

by the High Court.   

8. Learned counsel  for  the respondents,  on  the  other  hand,  submitted

that when the High Court took note of the fact that large number of persons

were falsely implicated, the prayer in terms of Section 389 of the Code was

to be accepted.           

9. Section 389 of the Code empowers the Court to suspend the sentence

pending the appeal and for release of the appellant on bail.  Section 389 so

far relevant reads as follows:

“389. Suspension of sentence pending the appeal; release of  appellant  on  bail  –  (1)  Pending  any  appeal  by  a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that he execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

Provided  that  the  Appellate  Court  shall,  before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not

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less than ten years, shall give opportunity to the Public Prosecutor  for  showing  cause  in  writing  against  such release:

Provided further  that  in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.

(2) The  power  conferred  by  this  section  on  an Appellate Court may be exercised also by the High Court in the case of an appeal by convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which  he  is  convicted  that  he  intends  to  present  an appeal, the Court shall, -

(i) where  such  person,  being  on  bail,  is sentenced  to  imprisonment  for  a  term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a baliable one, and he is on bail,

order that the convicted person be released on bail unless there  are  special  reasons  for  refusing  bail,  for  such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1),  and the sentence of imprisonment shall,  so long  as  he  is  so  released  on  bail,  be  deemed  to  be suspended.

(4) When  the  appellant  is  ultimately  sentenced  to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.”         

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10. 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.

11. 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  looses  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

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seem to have kept the correct principle in view.

12. In  Vijay  Kumar v.  Narendra  and  others (2002  (9)  SCC 364)  and

Ramji Prasad v. Rattan Kumar Jaiswal and another (2002 (9) SCC 366), it

was held by this Court that in cases involving conviction under Section 302

IPC, it is only in exceptional cases that the benefit of suspension of sentence

can be granted.  The impugned order of the High Court does not meet the

requirement.  In Vijay Kumar's case (supra) it was held 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 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, and the desirability of releasing the accused on bail after they have

been convicted for committing the serious offence of murder.  These aspects

have not been considered by the High Court, while passing the impugned

order.

13. The parameters governing Section 389 of the Code were highlighted

in Kishori Lal v. Rupa and Ors. (2004 (7) SCC 638), Vasant Tukaram Pawar

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v.  State of Maharashtra (2005 (5) SCC 281) and  Gomti v.  Thakurdas and

Ors. (2007 (11) SCC 160).

14. The High Court noted that except Girdhari other appellants (present

respondents) were on bail during trial.

15. The order directing suspension of sentence and grant of bail is clearly

unsustainable and is set aside.  Learned counsel for the accused-respondents

stated that fresh applications shall be moved before the High Court. In case

it  is  done,  it  goes without  saying,  that  the High Court  shall  consider  the

matter in the proper perspective in accordance with law.

16. Appeals are allowed.

……………………………….……J. (Dr. ARIJIT PASAYAT)

……………………………….……J. (Dr. MUKUNDAKAM SHARMA)

New Delhi: October 24, 2008

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