REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  2034 OF 2008

(Arising out of SLP (Crl) No. 6647 of 2008)

Shiv Kumar …Appellant

Versus

State of N.C.T. of  Delhi …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to order passed by a learned Single Judge

of the Delhi High Court rejecting the application filed by the appellant for

suspension of sentence in  terms of Section 389 of the  Code of  Criminal

procedure, 1973 (in short the ‘Code’).   The stand of the appellant is that he

had suffered more than 1 year and eight months’ custody and therefore the

sentence  should  be  suspended.   The  High  Court  noted  that  earlier  also

asimilar prayer was made which was rejected by order dated 18.9.2007.

3. Learned counsel for the appellant submitted that he was only a peon

who  had  no  authority  to  issue  any  domicile  certificate.   Therefore  the

conviction  should  not  have  been  recorded.   In  any  event  the  sentences

imposed for offence punishable under Sections 7 & 13 (2) of the Prevention

of  Corruption  Act,  1988  (in  short  the  ‘Act’)  are  harsh.   In  such  a  case

minimum  sentence  is  six  months  but  in  the  instant  case  three  years

imprisonment has been awarded.

4. Learned  counsel  for  the  State  on  the  other  hand  supported  the

judgment.

5. Several decisions were cited at the bar.  

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6. In  Bhagwan Rama Shinde Gosai v.  State of Gujarat [1999(4) SCC

421] it was inter alia held as follows:

“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.”

7. In  Vijay  Kumar v.  Narendra [2002(9)  SCC 364]  it  was  inter  alia

observed as follows:

“On  perusal  of  the  record  and  on  consideration  of  the submissions  made  by  the  learned  counsel  appearing  for  the parties, we are of the view that in the context of the facts and circumstances  of  the  case  the  High  Court  was  in  error  in passing the order releasing the respondents on bail. The High Court  has  neither  given  any  reason  nor  has  indicated  any exceptional circumstance for granting bail to the respondents. In the above circumstances, it is difficult for us to even surmise the circumstance which prompted the learned Single Judge to

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consider the accused persons to be entitled to the discretionary relief of bail pending the appeal. The principle is well settled 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 the 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.  Our attention  has not  been drawn to  any material which would show that the learned Single Judge took into consideration the  relevant  factors  while passing the  bail order.  We  refrain  ourselves  from  making  any  observation touching on merits of the case lest it may prejudice any of the parties. Suffice it to state that we do not consider this a fit case for  grant  of  bail  to  the  respondents  during  pendency  of  the appeal filed by them.”

8. Of  course  both  these  cases  related  to  offence  punishable  under

Section 302 IPC.

9. This  court  has observed in several  cases that  where the accused is

convicted for offence punishable under the Act, it would not be prudent and  

desirable to give protection under Section 389 of the ‘Code’.  

10. However taking into account the peculiar circumstances of the case

we request the High Court to dispose of the appeal as early as practicable.

To avoid unnecessary delay, let the appellant appear before the High Court

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on the 6th of January, 2009.   We request the learned Chief Justice of the

High Court to allot the case to an appropriate Bench.  Needless to say the

appeal shall be disposed of, as noted above, as early as practicable.  In case

the appeal is not disposed of by the end of March, 2009, it shall be open to

the appellant to move to the High Court afresh for bail and if such occasion

arises needless to say the application shall be dealt with in accordance with

law.    

11. The appeal is disposed of accordingly.  

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

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

New Delhi, December 15, 2008

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