Before adverting to the submissions and to
ascertain, whether the applicant has made out a case
for suspension of sentence, it is necessary to see the
legal position.
(i) Section 389(1) of the Cr.P.C., enjoins upon the
Appellate Court the power to pass an order for the
suspension of sentence or order of conviction during
the pendency of an Appeal. The statutory provision
says that, pending any appeal by convicted persons,
the appellate Court may reasons to be recorded by it
in writing, order that the 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. The Apex Court in Rajesh Ranjan
Yadav Vs. CBI (2007 (1) SCC 70), after referring
its earlier decisions, [Kashmira Singh Vs. State of
Punjab (1977 4 SCC 291) and Bhagirathsing Vs. State
of Gujarat (1984 (1) SCC 284)] in para-10, observed
that, there is no absolute and unconditional rule
about when bail should be granted. The observations
made in para-10 reads as under:
“Para-10: “In our opinion, none of the
aforesaid decisions can be said to have been
laid down any absolute and unconditional rule
about when bail should be granted by the
court and when it should not. It all depends
upon the facts and circumstances of each
case and it cannot be said that, there is any
absolute rule that, because of long period of
imprisonment has expired, bail must
necessarily be granted.”
(ii) In the case of Ash Mohammad Vs.
Shivrajsinh @ Lalla Babu and another, (2012) 9
SCC 446, the Supreme Court in para-30, while
examining the societal interest and considering the
antecedents examined the post conviction bail and
discussed on the issue of desirability to suspend the
sentence and grant of bail. Para-30 reads as under :
“30. We may usefully state that when the
citizens are scared to lead a peaceful life and
this kind of offences usher in an impediment in
establishment orderly society, the duty of the
court becomes more pronounced and the
burden is heavy. There should have been
properly analysis is criminal antecedents.
Needless to say, imposition of condition is
subsequent to the order admitting an accused
to bail. The question should be paused whether
the accused deserves to be enlarged on bail or
nor and only thereafter, imposing conditions
would arise. We do not deny for a moment that
period of custody is relevant factor but
simultaneously the totality of circumstance and
criminal antecedents are also to be weighed.
They are to be weighed in the scale of collective
crime and desire. The societal concerned has to
be kept in view in juxtaposition of individual
liberty. Regard being head to the said
parameter, we are inclined to think that the
social concerned in the case at hand, deserves
to be given priority over-lifting the restriction on
liberty of the accused.”
[emphasis supplied]
(iii) In Sidhartha Vashisht @ Manu Sharma Vs.
State (NCT of Delhi) reported in (2008) 5 SCC 230,
referring the decision of Vijaykumar (2002) 9 SCC 364,
the Supreme Court while examining the prayer of
suspension of sentence emphasized that, in a case of
involved in a serious offence, the court should
consider all relevant factors like the nature of
accusation made against the accused, the manner in
which the crime is alleged to have committed, the
gravity of offence, the desirability of releasing the
accused on bail after he has been convicting for
committing serious offence and also bearing in mind
that, when the accused has been found guilty then,
initial presumption of innocence in his favour is no
more available to the applicant and therefore, the
appellate Court shall not suspend the sentence except
only in an exceptional case and that too, in a case of
existence of reasons to suspend the sentence.
(iv) Recently, Supreme Court while considering the
scope of Section 389(1) of the Cr.P.C. in the case of
Omprakash Sahani Vs. Jayshankar Chaudhary
(2023) 6 SCC 123, after referring the earlier all
decisions on this aspect, observed and held that, while
dealing with the case of suspension of sentence and
grant of bail, the appellate Court before allowing the
prayer, should prima-facie come to a conclusion that,
the conviction may not be sustainable. Para-33 is
relevant to refer and same is reproduced hereunder:
“Para-33: Bearing in mind the aforesaid
principles of law, the endeavour on the part of
the Court, therefore, should be to see as to
whether the case presented by the
prosecution and accepted by the Trial Court
can be said to be a case in which, ultimately
the convict stands for fair chances of
acquittal. If the answer to the above said
question is to be in the affirmative, as a
necessary corollary, we shall have to say that,
if ultimately the convict appears to be entitled
to have an acquittal at the hands of this Court,
he should not be kept behind the bars for a
pretty long time till the conclusion of the
appeal, which usually take very long for
decision and disposal. However, while
undertaking the exercise to ascertain whether
the convict has fair chances of acquittal, what
is to be looked into is something palpable. To
put it in other words, something which is very
apparent or gross on the face of the record, on
the basis of which, the Court can arrive at a
prima facie satisfaction that the conviction
may not be sustainable. The Appellate Court
should not reappreciate the evidence at the
stage of Section 389 of the CrPC and try to
pick up few lacuna or loopholes here or there
in the case of the prosecution. Such would not
be a correct approach.” {Para 16}
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR SUSPENSION OF SENTENCE) NO. 1 of 2023.
R/CR.A/607/2023 IA
ASHUMAL @ ASHARAM S/O THAUMAL SINDHI (HARPALANI) Vs STATE OF GUJARAT
CORAM: MR. JUSTICE ILESH J. VORA and MR. JUSTICE VIMAL K. VYAS.
Author: MR. JUSTICE ILESH J. VORA.
JUDGMENT DATED: 29/08/2024.
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