http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (crl.)  555 of 2007

PETITIONER: Gomti

RESPONDENT: Thakurdas & Ors

DATE OF JUDGMENT: 13/04/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.      555         OF 2007 (Arising out of SLP (Crl.) No.2062 of 2006)

Dr. ARIJIT PASAYAT, J.

       Leave granted.  

Challenge in this appeal is to the orders passed by a  learned Single Judge of the Allahabad High Court accepting  prayer for bail, which has been filed by the respondent Nos. 1  to 5, during pendency of the appeals (i.e. CRLA 3876/2002  and 3777/2002) before the High Court.  The present appeal is  by the complainant alleging that her husband has been killed  by the respondents 1 to 5 on 12.9.1998, and the concerned  respondents are not entitled to bail.

Background facts in a nutshell are as follows:

The respondent Nos. 1 to 5 faced trial of alleged  commission of offences punishable under Sections 147, 148,  149, 302, 201 , 120(B) and 323 of the Indian Penal Code, 1860  (in short the ’IPC’) and under Sections 3(2) and (5) of the  Scheduled Castes and Scheduled Tribes (Prevention of  Atrocities) Act (in short the ’SCST Act’ ) and Sections 3(2) and  (5) of the Arms Act, 1954 (in short the ’Arms Act’) in Sessions  Trial Nos. 11 and 12 of 1999.

All the accused were found guilty and sentenced to  imprisonment for life and were convicted in terms of Section  302 read with Section 149 IPC, and other sentences in respect  of Sections 148, 201 and Section 3(2) and 5 of the SCST Act.  However, they were acquitted of the charges relatable to  Sections 25 of the Arms Act and Section 120 B IPC.  The  respondents 1 to 5 filed Criminal Appeal Nos.3876 of 2002  and 3777 of 2002 before the High Court. By the impugned  orders dated 16.12.2002 and 23.1.2003, the prayer for bail  was accepted.  In the Criminal Appeal No.3876 of 2002 the  following order was passed.

"Heard learned counsel for the appellants Sri  Sanjay Tripathi for complainant and the  learned A.G.A.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

Perused the order of Sessions Judge and lower  court’s record. The appellants were on bail  during trial.

Pending appeal, appellants-Thakur Das,  Hanshraj & Dillan convicted in S.T. No. 12/99  shall be released on bail on each of them  executing a personal bond and on furnishing  two sureties each in the like amount to the  satisfaction of the court concerned.

Until further orders realisation of fine shall  also remain stayed."

In the other appeal i.e. Criminal Appeal No. 3777 of 2002  following order was passed: "Heard appellants’ counsel, Sri Sanjay Tripathi  for complainant’s counsel and the learned  A.G.A. for the State.

Appellant’s counsel submits that other co- accused persons, who are said to have fired  have already been released on bail. Appellant’s  counsel further submits that presence of Kali  Charan at the time of occurrence is highly  doubtful as he was medically examined on  13.9.98 at 5.15 p.m. whereas the report was  lodged on 12.9.98 at 7.15 p.m. and he had  also gone to lodge the report alongwith the  complainant and the applicants have been in  jail for the last more than four years.

Pending appeal appellants Gyasi & Balkhandi  convicted in S.T. Nod 2/99 be released on bail  on each of them executing a personal bond  and on furnishing two sureties each in the like  amount to the satisfaction of court concerned.

Until further orders the realization of fine shall  also remain stayed."

The appellant has questioned correctness of the orders  urging that in the first order there is no reason indicated  except stating that the accused appellants were on bail during  trial and in the other case the only additional ground indicated  is that the presence of Kali Charan at the time of occurrence is  highly doubtful as he was medically examined on 13.9.1998 at  5.15 P.M. whereas the report was lodged on 12.9.1998 at  about 7.15 and he had gone to  lodge the report along with the  complainant.  The further reasons indicated is that the  applicant is in jail for about four years.

Learned counsel for the appellant has submitted that  while exercising power relatable to Section 389 of the Code of  Criminal Procedure, 1973 (in short the ’Code’), it is imperative  that the reasons have to be recorded. The reasons indicated  have to be germane to justify grant of bail.  The factors which  have weighted with the High Court are not only irrelevant but  also show non-application of mind.

 On the contrary learned counsel for respondents 1 to 5  has submitted that grant of bail being discretionary, the High  Court was justified in taking note of the relevant factors and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

granting bail.

Learned counsel for the State supported the stand of the  appellant.

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.  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.

       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 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.  

       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. 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.   

The above position was highlighted in Kishori Lal v. Rupa  and Others [2004(7) SCC 638] and in Vasant Tukaram Pawar  v. State of Maharashtra [2005 (5) SCC 281].   

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

matter in accordance with law, in its proper perspective

Considering the principles set out above, we are of the  view that the impugned orders of the High Court cannot be  maintained and are set aside.   

The appeal is allowed to the aforesaid extent.