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CASE NO.: Appeal (crl.)  1067 of 2004

PETITIONER: Kishori Lal                                                      

RESPONDENT: Rupa and Ors.                                                    

DATE OF JUDGMENT: 23/09/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T (Arising out of S.L.P.(Crl.) No.2223 of 2004)

ARIJIT PASAYAT, J.               Leave granted.

       The informant calls in question legality of grant of bail to  accused-respondent Nos.1 to 3 by the High Court of  Allahabad. In the  appeal preferred by respondents 1 to 3, an application was filed  purportedly under Section 389 of the Code of Criminal Procedure, 1973  (in short the ‘Code’) with the prayer that execution of substantive  sentence of imprisonment for life and a fine of Rs.10,000/- imposed  after finding them guilty for offences punishable under Section 302  read with Section 34 of the Indian Penal Code, 1860 (in short the  ‘IPC’) be suspended.  The High Court, by the impugned order, granted  bail primarily on the ground that during trial, the accused respondents  were on bail and had not misused the liberties granted to them.   

According to learned counsel for the appellant-informant, who is  supported by learned counsel for respondent No.4 - State, the approach  of the High Court is clearly erroneous.  In a large number of cases    the accused-respondent Nos.1 to 3 were involved and the appellant and  his family members have been threatened with dire consequences for  having set law into motion.  Learned counsel for accused-respondent  Nos.1 to 3, however, submitted that the case was instituted on account  of previous enmity and at present no case is pending where they are  accused.

       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

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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.          A similar question was examined in State of Haryana Vs. Hasmat  (JT 2004 (6) SC 6).  

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.

       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 a fresh application shall be moved.  In  case it is done, the High Court, it goes without saying, shall consider  the matter in accordance with law, in its proper perspective.  We  express no opinion in that regard.

       The appeal is, accordingly, allowed.