REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                       OF 2009   (Arising out of SLP (Crl.) No.8190 of 2008)

Masood Ali Khan  ……Appellant

Versus

State of U.P. & Ors. ……Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order of a Division Bench of the

Allahabad High Court granting bail to the respondent Nos. 2 to 4 during the

pendency of Criminal Appeal No. 3693 of 2007.

3. Background facts as projected by the complainant in FIR Case Crime

No.198  of  2005  of  P.S.  Kotwali  district,  Rampur,  Uttar  Pradesh  are  as

follows:

The FIR was lodged on 29.5.2005 stating that the respondent armed

with deadly weapons alongwith co-accused Chhote and Raza came to a milk

dairy where brother of the appellant namely Javed (hereinafter referred to as

the  ‘deceased’)  was  milking  the  buffaloes.  He  was  attacked  with  Patala

Daon - a sharp edged weapon, knife and dagger due to which he fell down

after receiving the fatal injuries.  The accused persons thereafter fled away

towards the forest after terrorizing people by firing in the air.  Prior to this

incident,  respondents  Lalam  and  Murshad  and  co-accused  Chhote  had

stolen  a  buffalo  of  the  deceased  and  for  that  they were  required  to  pay

Rs.20,000/-  as  per  the decision of  the  panchayat  held earlier.   Appellant

brought  the  injured  to  the  hospital  where  he  was  declared  dead.   The

incident  had  taken in  a  broad  day light  in  a  busy  Hazratpur  crossing  at

Rampur City and was witnessed by many persons.

After investigation, charge sheet was filed. On the basis of statement

made by respondent  Lalam recovery of  a Patal  was made.  Subsequently,

2

blood  stained  dagger  was  also  recovered.   Similarly,  one  country  made

pistal and five life cartridges were recovered. Accused Raza Ali could not

be apprehended and he has absconded. Learned Additional Sessions Judge,

Rampur,  placing  reliance  on  the  evidence  of  the  witnesses  found  the

respondents guilty.  Each of the respondents 2 to 4 and co-accused Chhote

was awarded life sentence.  An appeal (Criminal Appeal No. 3693 of 2001)

was filed before the High Court.  The respondents filed an application for

release on bail.  By the impugned order bail has been granted.  

4. Learned  counsel  for  the  appellant  submitted  that  the  High  Court’s

order  is  indefensible.  By a  practically  non-reasoned  order,  bail  has  been

granted.  Various other factors have been pointed out, they are essentially as

follows:

(a) No  opportunity  was  given  by  the  High  Court  to  public

prosecutor as required under amended proviso (1) of Section 389 Cr.P.C.

(b) The  Division  bench  completely  ignored  the  fact  that

respondents Lalam and Akbar during the trial had fled from the custody and

were convicted for this offence by C.J.M. Rampur.

3

(c) High Court ignored the fact that it was the case of brutal broad

daylight murder for which accused were not granted bail by the Sessions or

High Court during Trial.

(d) No cogent or detailed reasons were given by the High Court

while granting bail to Respondents in their appeal against their conviction

which is a mandatory requirement of Session 389 Cr.P,C,

(e) Division Bench of High Court ironically and without applying its

judicial mind granted bail to the Respondents in their appeal and suspended

their  sentence of life imprisonment during pendency of their  appeal  even

when there was no application under Section 389 Cr.P.C. for suspension of

sentence by respondents.

(f) The  Division  Bench  of  the  High  Court  also  ignored  the

criminal history of the accused persons and did not take into consideration

the possibility of misuse of liberty by respondents.

5. There is no appearance on behalf of respondents in spite of service of

notice.   

6. At  the  outset  it  needs  to  be  noticed  that  the  High  Court  has  not

referred to any circumstance which warrants grant of bail.  The only reason

given reads as follows:

4

“The  allegations  made  in  the  FIR  and  the  nature  of injuries  mentioned  in  the  post  mortem report  and  the weapons  alleged  to  have  been  used  by  the  present appellants in the incident are sufficient  to grant bail  to the appellants as the fatal ante-mortem injuries appear to have  been  caused  by  Patal  (Dav),  which  has  been assigned on the co-accused Chhotey.”

7. 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 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.

5

(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.”         

8. 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

6

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.

9. 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

seem to have kept the correct principle in view.

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

7

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.

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

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

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

(2007 (11) SCC 160).  

8

12. Looked  at  from any  angle  the  order  of  the  High  Court  is  clearly

indefensible and is set aside.  Respondents 2 to 4 shall surrender to custody

forthwith.   

13. The appeal is allowed.

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

…….......................................J. (ASOK KUMAR GANGULY)

New Delhi, February 05, 2009           

9