Supreme Court: Appellate court may not order deposit of 20% of compensation in appeal against conviction in checque dishonour case

We may take the discussion a little forward to emphasize

our point of view. There could arise a case before the Appellate

Court where such court is capable of forming an opinion, even in

course of considering as to what would be the appropriate

quantum of fine or compensation to be kept in deposit, that the

impugned conviction and the consequent sentence

recorded/imposed by the trial court is so wholly incorrect and

erroneous that it is only a matter of time for the same to be set

aside and that ordering a deposit would be unnecessarily

burdensome for the appellant. Such firm opinion could be formed

on a plain reading of the order, such as, the conviction might have

been recorded and sentence imposed without adherence to the

mandatory procedural requirements of the N.I. Act prior to/at the

time lodging of the complaint by the complainant rendering the

proceedings vitiated, or the trial court might have rejected

admissible evidence from being led and/or relied on inadmissible

evidence which was permitted to be led, or the trial court might

have recorded an order of conviction which is its ipse dixit, without

any assessment/analysis of the evidence and/or totally

misappreciating the evidence on record, or the trial court might

have passed an order failing to disclose application of mind and/or

sufficient reasons thereby establishing the link between the

appellant and the offence, alleged and found to be proved, or that

the compensation awarded is so excessive and outrageous that it

fails to meet the proportionality test : all that, which would evince

an order to be in defiance of the applicable law and, thus, liable to

be labelled as perverse. These instances, which are merely

illustrative and not exhaustive, may not arise too frequently but its

possibility cannot be completely ruled out. It would amount to a

travesty of justice if exercise of discretion, which is permitted by

the legislature and could indeed be called for in situations such as

these pointed out above, or in any other appropriate situation, is

not permitted to be exercised by the Appellate Court by a judicial interpretation of ‘may’ being read as ‘shall’ in sub-section (1) of Section 148 and the aggrieved appellant is compelled to make a deposit of minimum 20% of the fine or compensation awarded by the trial court, notwithstanding any opinion that the Appellate Court might have formed at the stage of ordering deposit as regards invalidity of the conviction and sentence under challenge on any valid ground. Reading ‘may’ as ‘may’ leads to the text matching the context and, therefore, it seems to be just and proper not to denude the Appellate Court of a limited discretion conferred by the legislature and that is, exercise of the power of not ordering deposit altogether albeit in a rare, fit and appropriate case which commends to the Appellate Court as exceptional. While there can be no gainsaying that normally the discretion of the Appellate Court should lean towards requiring a deposit to be made with the quantum of such deposit depending upon the factual situation in every individual case, more so because an

order under challenge does not bear the mark of invalidity on its

forehead, retention of the power of such court not to order any

deposit in a given case (which in its view and for the recorded

reasons is exceptional) and calling for exercise of the discretion to

not order deposit, has to be conceded. If indeed the legislative

intent were not to leave any discretion to the Appellate Court,

there is little reason as to why the legislature did not also use

‘shall’ instead of ‘may’ in sub-section (1). Since the self-same

section, read as a whole, reveals that ‘may’ has been used twice

and ‘shall’ thrice, it must be presumed that the legislature was

well and truly aware of the words used which form the skin of the

language. Reading and understanding the words used by the

legislature in the literal sense does not also result in manifest

absurdity and hence tinkering with the same ought to be avoided

at all costs. We would, therefore, read ‘may’ as ‘may’ and ‘shall’ as ‘shall’, wherever they are used in Section 148. This is because, the words mean what they say. {Para 27}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 5491/2024

MUSKAN ENTERPRISES & ANR. Vs THE STATE OF PUNJAB & ANR. 

DIPANKAR DATTA, J.

Citation: 2024 INSC 1046.

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Supreme Court: 20% deposit of compensation amount in appeal against conviction for offence U/S 138 of NI Act is not an absolute rule and can be relaxed in exceptional cases

What is held by this Court is that a purposive interpretation should be made of Section 148 of the N.I. Act. Hence, normally, Appellate Court will be justified in imposing the condition of deposit as provided in Section 148. However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the Appellant, exception can be made for the reasons specifically recorded. {Para 6}

7. Therefore, when Appellate Court considers the prayer Under Section 389 of the Code of Criminal Procedure of an Accused who has been convicted for offence Under Section 138 of the N.I. Act, it is always open for the Appellate Court to consider whether it is an exceptional case which warrants grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount. As stated earlier, if the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said conclusion must be recorded.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2741 of 2023 

Decided On: 04.09.2023

Jamboo Bhandari Vs. M.P. State Industrial Development Corporation Ltd. and Ors

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Pankaj Mithal, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: 2023 INSC 822, MANU/SC/1005/2023.

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Supreme Court: The court should suspend sentence under S 302 of IPC in exceptional circumstances

In Vijay Kumar v. Narendra [Vijay Kumar v. Narendra,

(2002) 9 SCC 364] and Ramji Prasad v. Rattan Kumar Jaiswal

[Ramji Prasad v. Rattan Kumar Jaiswal, (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. In Vijay Kumar [Vijay Kumar v.

Narendra, (2002) 9 SCC 364], it was held that in

considering the prayer for bail in a case involving a

serious offence like murder punishable under Section

302IPC, 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. {Para 31}

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 abovesaid 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

takes 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 CrPC and try to

pick up a few lacunae or loopholes here or there in the

case of the prosecution. Such would not be a correct

approach.”

Since these were cases of conviction under

Section 302 IPC, the initial presumption available to the

respondents - accused before conviction, would not be

available to them. The High Court could not have

suspended the sentence, re-appreciating the evidence at

the stage of Section 389 and trying to pick up a few

lacunae or loopholes here or there in the case of

prosecution. The reason that the Appeals were not likely

to be heard in near future also would not be a valid

ground for suspending the sentence of the respondents -

accused, who have been convicted for the serious offence

under Section 302, IPC. It is only in rare and

exceptional circumstances, the benefit of suspension of

sentence should be granted by the Appellate Court to the

accused convicted for the serious offence under section

302, IPC.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2000 OF 2025

BALRAM DANGI Vs VEER SINGH DANGI & ORS. 

Dated: 16TH APRIL, 2025.

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Whether the court can suspend the sentence of convict if he is ready to pay compensation to victim?

Having observed and held as above, we are deeply peeved on perusing the impugned judgment, for the same reflects only non-application of mind and non-consideration of the relevant factors despite the fact that the case involved an acid attack on a young woman resulting into permanent disfiguration. In the case on hand, a scanning of the impugned order would reveal that what mainly weighed with the Court is the offer made on behalf of the convicts that they would give a payment of Rs. 25 lakhs through demand drafts, taking into account the evidence that the victim had incurred an amount of Rs. 21 lakhs for her treatment. Paragraph 10 of the impugned order would reveal that taking note of the said offer besides the period of incarceration and also the delay likely to occur in the consideration of appeal, sentence imposed was suspended and the private Respondents were enlarged on bail. 

11. We have no hesitation to hold that the impugned order is infected with non-application of mind and non-consideration of the relevant factors required for invocation of power Under Section 389 in the light of the settled position of law. An acid attack may completely strip off the victim of her basic human right to live a decent human life owing to permanent disfiguration. We have no hesitation to hold that in appeals involving such serious offence(s), serious consideration of all parameters should be made. Even a cursory glance of the impugned order would reveal the consideration thereunder was made ineptly. The serious nature of the offence involved was not taken into account besides the other relevant parameters for the exercise of power Under Section 389, Code of Criminal Procedure.

 13. The impugned order passed by the High Court is perused.

Specifically the order dated 21.02.2024 passed in the Correction

Application. The order does not suggest that there was any

consideration of the parameters laid down by this court for grant of bail or suspension of sentence. Instead, the High Court had noticed and directed that the convicts have offered to pay compensation to the victim for grant of suspension of sentence, which when she refused to accept, was directed to be deposited in the court. It was in a way kind of “Blood Money” offered by the convicts to the victim for which there is no acceptability in our criminal justice system.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal Nos.1957-1961 of 2024

Shivani Tyagi  Vs  State of U.P. & Anr. 

Citation: MANU/SC/0353/2024, 2024 INSC 343.

Dated: April 5, 2024.

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What are parameters for suspension of offence of convict in serious offences?

 We have already referred to the mandate Under Section 389 Code of Criminal Procedure that the order passed invoking the said provision should reflect the reason for coming to the conclusion that the convicts are entitled to get suspended their sentence and consequential release on bail. In the decision in State of Haryana v. Hasmat MANU/SC/0547/2004 : 2004:INSC:401 : (2004) 6 SCC 175, this Court held that in an appeal against conviction involving serious offence like murder punishable Under Section 302, Indian Penal Code the prayer for suspension of sentence and grant of bail should be considered with reference to the relevant factors mentioned thereunder, though not exhaustively. On its perusal, we are of the opinion that factors like nature of the offence held to have committed, the manner of their commission, the gravity of the offence, and also the desirability of releasing the convict on bail are to be considered objectively and such consideration should reflect in the consequential order passed Under Section 389, Code of Criminal Procedure. It is also relevant to state that the mere factum of sufferance of incarceration for a particular period, in a case where life imprisonment is imposed, cannot be a reason for invocation of power Under Section 389 Code of Criminal Procedure without referring to the relevant factors. We say so because there cannot be any doubt with respect to the position that disposal of appeals against conviction, (especially in cases where life imprisonment is imposed for serious offences), within a short span of time may not be possible in view of the number of pending cases. In such circumstances if it is said that disregarding the other relevant factors and parameters for the exercise of power Under Section 389, Code of Criminal Procedure, likelihood of delay and incarceration for a particular period can be taken as a ground for suspension of sentence and to enlarge a convict on bail, then, in almost every such case, favourable invocation of said power would become inevitable. That certainly cannot be the legislative intention as can be seen from the phraseology in Section 389 Code of Criminal Procedure. Such an interpretation would also go against public interest and social security. In such cases giving preference over appeals where sentence is suspended, in the matter of hearing or adopting such other methods making an early hearing possible could be resorted. We shall not be understood to have held that irrespective of inordinate delay in consideration of appeal and long incarceration undergone the power under the said provision cannot be invoked. In short, we are of the view that each case has to be examined on its own merits and based on the parameters, to find out whether the sentence imposed on the Appellant(s) concerned should be suspended during the pendency of the appeal and the Appellant(s) should be released on bail. {Para 9}

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1957-1961 of 2024 

Decided On: 05.04.2024

Shivani Tyagi Vs. State of U.P. and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and Rajesh Bindal, JJ.

Authored By : C.T. Ravikumar, Rajesh Bindal

Citation:  MANU/SC/0353/2024,2024 INSC 343.

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What is the difference between Section 439 and Section 389 of the Code of Criminal Procedure?

  It may be seen that there is a marked difference between the procedure for consideration of bail Under Section 439, which is pre-conviction stage and Section 389 Code of Criminal Procedure, which is post-conviction stage. In case of Section 439, the Code provides that only notice to the public prosecutor unless impractical be given before granting bail to a person who is Accused of an offence which is triable exclusively by the Court of Sessions or where the punishment for the offence is imprisonment for life; whereas in the case of post-conviction bail Under Section 389 Code of Criminal Procedure, where the conviction in respect of a serious offence having punishment with death or life imprisonment or imprisonment for a term not less than ten years, it is mandatory that the appellate court gives an opportunity to the public prosecutor for showing cause in writing against such release. {Para 13}

14. ...in case the appellate court is inclined to consider the release of the convict on bail, the public prosecutor shall be granted an opportunity to show cause in writing as to why the Appellant be not released on bail. Such a stringent provision is introduced only to ensure that the court is apprised of all the relevant factors so that the court may consider whether it is an appropriate case for release having regard to the manner in which the crime is committed, gravity of the offence, age, criminal antecedents of the convict, impact on public confidence in the justice-delivery system, etc. Despite such an opportunity being granted to the Public Prosecutor, in case no cause is shown in writing, the appellate court shall record that the State has not filed any objection in writing. This procedure is intended to ensure transparency, to ensure that there is no allegation of collusion and to ensure that the court is properly assisted by the State with true and correct facts with regard to the relevant considerations for grant of bail in respect of serious offences, at the post-conviction stage.

IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 

 Satender Kumar Antil Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022.

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Whether the trial court can suspend sentence of convict in his absence when application to that effect is filed by his Advocate?

 It is difficult for me to concur with the view taken by the Kerala High Court that in the cases arising from the Negotiable Instruments Act, upon   conviction, the accused automatically enjoys the benefit of Section 389(3)   of the Cr.P.C. Of course, an application can be filed under Section 389(3)   of the Code and the Court may pass an appropriate order in accordance   with law. The question is about the personal presence of the accused for   the purpose of passing an appropriate order upon the application under   Section 389(3) of the Code. {Para 35}

36 I am of the view that in the absence of the convict accused, the learned   advocate  appearing  for  him  cannot  prefer  an  application  under  Section   389(3)  of the Code for suspension of the sentence  to enable  the convict   accused to prefer an appeal before the Sessions Court. When an order is   passed under Section 389(3) of the Code for suspension of the sentence by   the   trial   Court   to   enable   the   accused   to   prefer   an   appeal   before   the   Sessions   Court,   then   the   accused   has   to   furnish   bail   with   necessary   sureties. He has to execute the bail bonds. The order under Section 389(3)   of the Code will come into force only when the accused furnishes the bail   bonds. In such circumstances, in his absence, the learned advocate cannot   be   permitted   to   file   such   an   application.   There   is   one   more   reason   in   taking this view. If it is permissible for the learned advocate defending the   accused   to   file   an   application   under   Section   389(3)   of   the   Code   for   suspension of the sentence in the absence of the accused being personally   present before the learned Magistrate, then the same would render Section   418(2) of the Code otiose or redundant. If the convicted person is released   on bail under Section 389(3) of the Code and such person has to furnish   the   bail,   how   this   process   will   be   undertaken   in   the   absence   of   the   convicted  accused.  I am of the  view that the  learned  Magistrate  rightly   observed  in the  order  that  the  application  under  Section  389(3)  of the   Code was not maintainable since the convicted accused was not personally   present   before   the   Court.   Thus,   the   fourth   question   is   answered   accordingly. 

Gujarat High Court

Ishwarbhai Hirabhai Chunara vs State Of Gujarat & on 22 February, 2017

                   R/SCR.A/9112/2016     

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Guidelines of Patna High court for suspension of sentence of convict by Appellate court

 Conclusion

111. The discussion, undertaken hereinbefore, may be summarized as follows:—

a. While considering an application for suspension of sentence, the Appellate Court has to record reasons, in writing. The requirement of recording of reasons must be preceded by careful consideration of the relevant aspects of the case at hand including issues of human rights or other relevant aspects as envisaged under Article 21 of the Constitution of India.

b. The mere fact that during the period, when an accused person was on bail during trial, ‘there was no misuse of liberty does not per se warrant suspension of execution of sentence and grant of bail. What really is necessary to be considered by the Court is whether reasons exist, on the merits of the case, to suspend the execution of sentence and, thereafter, grant bail to the appellant.

c. During pendency of an appeal against conviction or sentence or both, temporary or interim or provisional suspension of sentence, on some extremely rare circumstances, is inherent in the jurisdiction of the Appellate Court, under Sec. 389 Cr. P.C. by the doctrine of implied power. Such a recourse must be taken only when pressing circumstances are shown to exist and when the Court is of the opinion that further inquiry would be required before finally disposing of the application for suspension of sentence pending decision on the convict's appeal.

d. It may be equally necessary to mention that circumstances, which show existence of a right within the ambit Article 21 of the Constitution of India, may be considered as valid circumstances, while granting interim suspension pending disposal of an appellant's application seek ing suspension of sentence and bail.

e. Notwithstanding the fact that a prisoner's application for suspension of sentence and his consequent release on bail cannot be allowed on merit or has been rejected on merit, the Appellate Court still retains the power to suspend sentence for such period as the Court may consider imperative, particularly, when the Court finds that such suspension of sentence would make the right to life, guaranteed by Article 21, meaningful. Thus, inordinate delay, in disposal of appeal, terminal ailments, marriage of daughter, performing last rites, etc., are circum stances falling in the broader definition of “right to life” and can become valid grounds for suspension of sentence of a prisoner and his release on bail for a temporary period or until disposal of his substantive appeal.

In the High Court of Patna

(Before I.A. Ansari and V.N. Sinha, JJ.)

Chandra Shekhar Bharti Vs The State of Bihar 

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Under which circumstances Appellate court can provisionally suspend sentence of convict?

 Interim. Temporary or Provisional Suspension of Sentence

58. Interim, temporary, or provisional suspension of sentence is not explicit in Section 389(1) CrPC. However, one cannot lose sight of the fact that an order of suspension can be passed by an Appellate Court, upon hearing the Public Prosecutor, particularly, when the appellant has been convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years. The notice to Public Prosecutor, before passing an order of suspension, is not a mere formality as could be seen from a closer reading of the two proviso to sub-section (1) of Section 389 Cr. P.C. This apart, the show cause, which Public Prosecutor may file, has to be in writing.

59. Thus, when the Public Prosecutor is expected to give his objections, if any, in writing, to the prayer for suspension of sentence, such an objection cannot be a subjective and/or mechanical objection; rather, a show cause has to be objective and shall be based on matters on record.

 60. Now, under Section 382 Cr. P.C. every appeal shall be made in the form of a petition, in writing, presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against.

 61. Ordinarily, the prayer for suspension is made along with the presentation of appeal. At that point of time, only a’ copy of the judgment is available on the record of the Appellate Court. Thus, if the Court were to consider the prayer for suspension on bare perusal of the appeal petition, it may not arrive at a just finding.

 62. It is equally notable that even the Public Prosecutor is not expected to submit his show cause, in writing, on the mere reading of the appeal petition, for, such a show cause would only be a mere formality. The Public Prosecutor is, therefore, required to ascertain the correctness and sustainability of the grounds of appeal. This apart, the powers, vested by virtue of provisions of sub-section (1) of Section 389 CrPC, in Appellate Courts, are to be exercised by Appellate Courts after due consideration of a number of factors, which may be relevant.

 63. The requirement of recording reasons, in writing, as mandated by Section 389(1) CrPC, clearly indicates that there has to be careful consideration of the relevant aspects by the Appellate Court 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. 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. So observed the Supreme Court in Gomti (supra).

64. What really is necessary to be considered by the Appellate Court is whether reasons, on merit, exist to suspend execution of sentence and, thereafter, to consider whether the convict shall be released on bail or not. The grant of bail, following suspension, must also conform to the conditions imposable under Section 441 CrPC. Considered in this light, it becomes evident that solvency of surety and exclusion of the possibilities of disobedience to the conditions imposed are all relevant factors, which would determine the outcome of an application seeking suspension, because an order of suspension would be meaningless unless the convict is released from prison. The release from prison would depend on the collateral factor whether the convict is likely to abscond.

 65. In view of the factors, laid down in the case of Gomti (supra), which are required to be considered before suspending sentence, it becomes abundantly clear that it may become necessary, in a given case, for the Appellate Court to go through the entire case record and the evidence, which formed the conviction, in question. Even for the Public Prosecutor, the perusal of case record may be necessary to effectively submit his written show cause.

66. It will, thus, be seen that when an appeal is filed along with an application for suspension of sentence and before the case records have been called for, the Appellate Court may not be in a position to pass the order of suspension of sentence; but there may be a situation warranting immediate passing of an order of suspension of sentence.

 67. Illustratively, we may state that there may be an occasion before the Appellate Court, when, along with an appeal, a prayer for suspension of sentence is also made on the ground that father of the convict has died and the convict is required to perform the last rites. There may be a circumstance, when the appellant prays for suspension of sentence for 10-15 days in order to perform the marriage ceremony of his daughter or the appellant needs, in a case of life-threatening disease, medical treatment, which cannot be possibly received in prison. There may be umpteen circumstances, which may confront the Court thereby compelling it to keep aside the rigours of law and to take a lenient view of the matter.

68. The question is whether, under the circumstances, as mentioned above, the Court must await the receipt of case records from the trial Court in order to decide the prayer for suspension of sentence and consequent release on bail of the appellant pending disposal of his application seeking suspension of his sentence and his release on bail?

 69. It needs to be borne in mind that when discretion is conferred on Court, it is unwise to discover a universal formula of its application, for, facts of each case may differ and thereby frustrate the very purpose of conferring discretion. No two cases are, generally, alike on facts and, therefore, the Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. Laying down the law that judicial discretion must be given some freedom, the Constitution Bench, speaking through Chandrachud, C.J., in Gurbaksh Singh Sibbia v. State of Punjab, reported in (1980) 2 SCC 565, observed:—

…life throws up unforeseen possibilities and offers new. challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges……

 70. We would not also, therefore, like to evolve a legal formula of universal application as to when a person, convicted of an offence, can be allowed to go on bail, consequent to suspension of sentence, on the ground of his sickness or some other exigencies; but we must indicate, as our duty is, as to what would be the minimum parameters of the Court's discretion, while considering the question as to whether to allow or not to allow the prayer for interim, temporary or provisional suspension of sentence before any final order, on an appellant's application seeking suspension of his sentence under Section 389(1) Cr. P.C. and his consequent release on bail, is disposed of.

 80. As a necessary corollary to the discussions held above, it can be safely held that at the time of presentation of appeal petition against conviction or sen tence or both, if an Appellate Court is faced with such rare circumstances, wherein interim, temporary or provisional order of suspension of sentence is called for, the denial of which may cause severe hardship to the appellant, the Appellate Court can, by taking resort to the doctrine of implied power, exercise its jurisdiction, under Section 389(1) Cr. P.C. by suspending the sentence temporarily and allowing the convict to go on bail for a specified period or until a decision is finally taken on the appellant's application, made under Section 389(1) Cr. P.C. seeking suspension of his sentence and consequent release on bail until disposal of his appeal.

 81. Such an order of interim suspension of/sentence will, thus, be wholly temporary in nature may not necessarily be based on the merits of the case, but on humanitarian considerations too or for enforcement of human rights as envisaged by Article 21 of the Constitution of India. Such a temporary, interim or provisional order of suspension of sentence has to be for a definite time frame depending on the facts of each case. On the expiry of the term for which the sentence is temporarily suspended pending an appellant's application seeking suspension of sentence and bail, the appellant shall have to surrender to the Court, as may have been directed by the Appellate Court, until the appellant's application, seeking suspension of sentence ‘and bail, is finally disposed of If further extension is prayed for, then, such extension can be allowed only if further emergent circumstances are shown to exist and not otherwise. It is advisable that on the date of expiry of the period of temporary suspension of sentence and bail, the petition for suspension of sentence be taken up for final hearing and necessary orders be passed.

In the High Court of Patna

(Before I.A. Ansari and V.N. Sinha, JJ.)

Chandra Shekhar Bharti Vs The State of Bihar 

Decided on January 27, 2014

Citation: 2014 SCC OnLine Pat 7874 : (2014) 2 PLJR 756 : (2014) 3 KLT (SN 31) 27 : 2014 Cri LJ 2953

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Whether court can release convict on bail during the pendency of a criminal appeal as per S 436-A of CRPC?

In my view, Section 436-A, Cr.P.C. is restricted in

its operation to grant of bail to an under-trial prisoner

‘during the period of investigation, inquiry or trial’ and does

not, ex proprio vigore, apply at the appellate stage. I, thus,

concur with the prima facie view of Their Lordships of the

Hon’ble Division Bench expressed in the order dated

August 14, 2020 as well as the opinion of learned brothers

Deshpande and Shukre, JJ. I also agree with Their Lordships

that the reference ought to be disposed of by answering

the question referred in the negative.

7. Having so answered, I hasten to observe that in a

given situation the spirit of Section 436-A, Cr.P.C. could be

considered by an appellate court while it is seized of an

application under Section 389, Cr.P.C. and, drawing

inspiration from the principle ingrained in the former, to

suspend execution of the sentence bearing in mind all

relevant factors including the time likely to be taken for

disposal of the appeal. The judicial mind in the wise

exercise of discretion and by suitable moderation may

suspend execution of the sentence and grant bail under

Section 389, Cr.P.C., the absence of a provision like Section

436-A, Cr.P.C. in the chapter on appeals notwithstanding. If

any authority is required, one may usefully refer to the

decisions in Kashmira Singh vs. State of Punjab,

reported in (1977) 4 SCC 291, Babu Singh vs. State of

U.P., reported in (1978) 1 SCC 579, Bhagwan Rama

Shinde Gosai vs. State of Gujarat, reported in (1999) 4

SCC 421, Akhtari Bi vs. State of Madhya Pradesh,

reported in (2001) 4 SCC 355, and Suresh Kumar vs.

State [NCT, Delhi], reported in (2001) 10 SCC 338, which

are all decisions prior to the birth of Section 436-A in the

Cr.P.C. delineating factors that a Court ought to take into

account while considering a prayer for bail at the appellate

stage.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPLICATIONN (APPA) NO. 270/2020

IN

CRIMINAL APPEAL NO. 336/2016

Maksud Sheikh Gaffur Sheikh  Vs  State of Maharashtra,

CORAM : DIPANKAR DATTA, C.J.

R. K. DESHPANDE &

SUNIL B. SHUKRE, JJ.

DATED : 28.08.2020

JUDGMENT (Per : Sunil B. Shukre, J)

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Supreme Court: Precaution to be taken by the court while suspending the sentence of a convict of dowry death

Section 389 provides that, pending any appeal by a convicted

person, the Appellate Court may, for 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. 

27. As the discretion under Section 389(1) is to be exercised

judicially, the Appellate Court is obliged to consider whether any cogent ground has been disclosed, giving rise to substantial doubts about the validity of the conviction and whether there is likelihood of unreasonable delay in disposal of the appeal.

31. In Kalyan Chadra Sarkar v. Rajesh Ranjan and Anr (2004) 7 SCC 528, this Court held:-

“11. The law in regard to grant or refusal of bail is very well

settled. The Court granting bail should exercise its

discretion in a judicious manner and not as a matter of

course. Though at the stage of granting bail a detailed

examination of evidence and elaborate documentation of

the merits of the case need not be undertaken, there is a

need to indicate in such orders reasons for prima facie

concluding why bail was being granted particularly where

the accused is charged of having committed a serious

offence. Any order devoid of such reasons would suffer from

non-application of mind.”

36. There is a difference between grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under  Section 389 of the CrPC and grant of bail, post conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. and Anr. (supra).However, in case of post conviction bail, by suspension of  operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the Cr.P.C.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 520 OF 2020

PREET PAL SINGH  Vs  THE STATE OF UTTAR PRADESH 

Indira Banerjee, J.

Dated: AUGUST 14, 2020

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Leading Supreme Court judgment on Suspension of conviction if it was on Corruption Charges against a public servant

 The legal position, therefore, is this : Though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convictional person files an appeal in challenge of the conviction the court should not suspend the operation of the order of conviction. The court has a duty to look at tall aspects including the ramifications of keeping such conviction in abeyance.

No doubt when the appellate Court admits the appeal filed in challenge of the conviction and sentence for the offence under the PC Act, the superior Court should normally suspend the sentence of imprisonment until disposal of the appeal, because refusal thereof would render the very appeal otiose unless such appeal could be heard soon after the filing of the appeal.

But suspension of conviction of the offence under the PC Act, de hors the sentence of imprisonment as a sequel thereto, is different matter.

 If honest public servants are compelled to take orders from proclaimed corrupt officers on account of the suspension of the conviction the fall out would be one of shaking the system itself. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold only public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level.

The legal position can be laid down that when conviction is on a corruption charge against a public servant the appellate Court or the revisional court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment of suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision.

IN THE SUPREME COURT OF INDIA

Appeal (crl.) 770 of 2001

Decided On: 02.08.2001

K.C. Sareen Vs  C.B.I., Chandigarh

Hon'ble Judges/Coram:

K.T. Thomas and S.N. Variava, JJ.

 Citation : AIR 2001 SC 3320

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Whether court can suspend sentence of convict in his absence?

I am of the view that in the absence of the convict accused, the learned advocate appearing for him cannot prefer an application under Section 389(3) of the Code for suspension of the sentence to enable the convict accused to prefer an appeal before the Sessions Court. When an order is passed under Section 389(3) of the Code for suspension of the sentence by the trial Court to enable the accused to prefer an appeal before the Sessions Court, then the accused has to furnish bail with necessary sureties. He has to execute the bail bonds. The order under Section 389(3) of the Code will come into force only when the accused furnishes the bail bonds. In such circumstances, in his absence, the learned advocate cannot be permitted to file such an application. There is one more reason in taking this view. If it is permissible for the learned advocate defending the accused to file an application under Section 389(3) of the Code for suspension of the sentence in the absence of the accused being personally present before the learned Magistrate, then the same would render Section 418(2) of the Code otiose or redundant. If the convicted person is released on bail under Section 389(3) of the Code and such person has to furnish the bail, how this process will be undertaken in the absence of the convicted accused. I am of the view that the learned Magistrate rightly observed in the order that the application under Section 389(3) of the Code was not maintainable since the convicted accused was not personally present before the Court. Thus, the fourth question is answered accordingly.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Criminal Misc. Application (for Direction) No. 19862 of 2015

Decided On: 14.11.2016

 Sharad Jethalal Savla Vs. State of Gujarat and Ors.

Hon'ble Judges/Coram:

J.B. Pardiwala, J.

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When can Magistrate impose conditions while ordering the suspension of sentence of a convict?

we are of the view that once a person is convicted and sentenced section 389 would be applicable, the Judge has to pass an order of bail mandatorily, but, this order in case of fine could be subject to conditions. Therefore, the proper course in this case would have been the Magistrate passing the order for bail subject to payment of fine in full or in part as he would deem fit in the circumstances of the case by giving reasons.

BOMBAY HIGH COURT

(Before Bilal Nazki and A.R. Joshi, JJ.)

Smt. Vandana Nursinh Kelkar v.  The State of Maharashtra

Criminal Writ Petition No. 92 of 2009

Decided on March 25, 2009

Citation: 2009 SCC OnLine Bom 470

ORAL JUDGMENT (Per Bilal Nazki, J.) :-

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Whether court can direct accused to deposit fine amount while suspending sentence against him?

We, thus, are of the view that Section 357 Code of Criminal Procedure has nothing to do with suspension of sentence awarded by the trial court and the sentence of fine imposed on the Accused is in no way affected by Section 357(2) Code of Criminal Procedure The present is not a case where trial court has directed payment of any compensation to anyone out of fine imposed. There is no direction for payment of compensation in the order of the trial court nor present case is covered by the circumstances mentioned in Sub-clauses (a) to (d) of Section 357(1) Code of Criminal Procedure Present is also not a case of Section 357(3) Code of Criminal Procedure Hence, there is no question of applicability of Section 357(2) Code of Criminal Procedure The heading of Section 357 Code of Criminal Procedure throws considerable light in finding the object and purpose of the Section. Section 357 Code of Criminal Procedure is only attracted when Court orders for payment of compensation. Section 357 is not attracted in any other case.

In view of the foregoing discussion, we are of the view that Section 357(2) Code of Criminal Procedure was not attracted in the present case since there was no direction of payment of any compensation out of the fine imposed by the trial court as part of sentence. Section 357 Code of Criminal Procedure (2) comes into play only where any order of payment of compensation utilising the fine imposed as sentence Under Section 357(1) Code of Criminal Procedure or compensation as directed Under Section 357(3) Code of Criminal Procedure is made. Present being neither a case of Section 357(1) Code of Criminal Procedure nor Section 357(3), Sub-section (2) of Section 357 Code of Criminal Procedure is clearly not applicable and the submissions raised by the learned Counsel for the Appellant are without any substance. We, thus, do not find any infirmity in the impugned order of the High Court where the High Court has directed the Appellant to deposit the fine awarded by the trial court. In the result, the appeal is dismissed.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 406 of 2018 (Arising out of SLP (Crl.) No. 1994 of 2018)

Decided On: 23.03.2018

Satyendra Kumar Mehra Vs. The State of Jharkhand

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation:(2018) 15 SCC 139

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Whether court can direct accused to deposit entire amount of cheque for suspension of sentence in cheque dishonour case?

The condition imposed upon the appellant who seeks
the remedy before the appellate court challenging the order of
conviction shall not be onerous. In the present case even before
there being a verdict from the appellate Court, the appellate
Court has directed to deposit the entire amount which, in my view,
will be a onerous condition. By such condition, the right of appeal
cannot be defeated inasmuch as if such condition is not fulfilled
the petitioner will have to undergo jail sentence.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
 CRIMINAL WRIT PETITION No. 174 OF 2015

Sau. Archana Pradip Badjate,V  State of Maharashtra

 CORAM : V .M. DESHPANDE, J.
DATED : 26.08.2015.
Citation: 2016 ALLMR(CRI)4817

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Supreme Court: Distinction between suspension of sentence and stay of conviction

It is well settled in law that there is a
distinction between suspension of sentence and stay of
conviction.
This has been succinctly stated in Rama
Narang Vs. Ramesh Narang 3 :
“7.........
“Section 389(1) empowers the Appellate Court
to order that the execution of the sentence or
order appealed against be suspended pending
the appeal. What can be suspended under this
provision is the execution of the sentence or the

execution of the order. Does 'Order' in Section
389(1) empowers the Appellate Court to order
that the execution of the sentence or order
appealed against be suspended pending the
appeal. What can be suspended under this
provision is the execution of the sentence or the
execution of the order. Does 'Order' in- Section
389(1) mean order of conviction or an order
similar to the one under Sections 357 or 360 or
the Code? Obviously, the order referred to in
Section 389(1) must be an order capable in
execution. An order of conviction by itself is not
capable of execution under the Code. It is the
order of sentence or an order awarding
compensation or imposing fine or release on
probation which are capable of execution and
which if not suspended, would be required to be
executed by the authorities.
In certain situations the order of conviction
can be executable, in the sense, it may incur a
disqualification as in the instant case. In such a
case the power under Section 389(1) of the
Code would be invoked. in such situations, the
attention of the Appellate Court must be
specifically invited to the consequence that is
likely to fall to enable it to apply its mind to the
issue since under Section 389(1) it is under an
obligation to support its order 'for reasons to be
recorded by it in writing'. If the attention of the
Court is not invited to this specific consequence
which is likely to fall upon conviction how can it
be expected to assign reasons relevant
thereto? ... If such, a precise request was made
to the Court pointing out the consequences
likely to fall on the continuance of the
conviction order, the Court would have applied
its mind to the specific question and if it
thought that case was made out for grant of
interim stay of the conviction order, with or
without conditions attached thereto, it may
have granted an order to that effect."

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 80 OF 2009

Govt. of A.P. Vs B. Jagjeevan Rao

Dated;MAY 12, 2014
 Citation: 2014viii AD (S.C.) 457, 2014(7)SCALE434, 2014(3)SCT323
DIPAK MISRA, J .

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Whether the court must hear prosecution before the suspension of sentence of convict and his release on bail?

 It may be seen that there is a marked difference between the
procedure for consideration of bail under Section 439, which is pre
conviction stage and Section 389 Cr.PC, which is post conviction

stage. In case of Section 439, the Code provides that only notice to
the public prosecutor unless impractical be given before granting
bail to a person who is accused of an offence which is triable
exclusively by the Court of Sessions or where the punishment for
the offence is imprisonment for life; whereas in the case of post
conviction bail under Section 389 Cr.PC, where the conviction in
respect of a serious offence having punishment with death or life
imprisonment or imprisonment for a term not less than ten years, it
is mandatory that the appellate court gives an opportunity to the
public prosecutor for showing cause in writing against such release.{Para 14}
15. Service of a copy of the appeal and application for bail on the
public prosecutor by the appellant will not satisfy the requirement of first proviso to Section 389 Cr.PC. The appellate court may even
without hearing the public prosecutor, decline to grant bail.
However, in case the appellate court is inclined to consider the
release of the convict on bail, the public prosecutor shall be granted
an opportunity to show cause in writing as to why the appellant be
not released on bail. Such a stringent provision is introduced only to
ensure that the court is apprised of all the relevant factors so that
the court may consider whether it is an appropriate case for release having regard to the manner in which the crime is committed, gravity of the offence, age, criminal antecedents of the convict, impact on public confidence in the justice delivery system, etc.
Despite such an opportunity being granted to the public prosecutor,
in case no cause is shown in writing, the appellate court shall record
that the State has not filed any objection in writing. This procedure
is intended to ensure transparency, to ensure that there is no
allegation of collusion and to ensure that the court is properly
assisted by the State with true and correct facts with regard to the
relevant considerations for grant of bail in respect of serious
offences, at the post conviction stage.
16. To sum up the legal position,
a.
The appellate court, if inclined to consider the release of a
convict sentenced to punishment for death or imprisonment
for life or for a period of ten years or more, shall first give an
opportunity to the public prosecutor to show cause in writing
against such release.
b.
On such opportunity being given, the State is required to file
its objections, if any, in writing.

c.
In case the public prosecutor does not file the objections in
writing, the appellate court shall, in its order, specify that no
objection had been filed despite the opportunity granted by
the court.
d.
The court shall judiciously consider all the relevant factors
whether specified in the objections or not, like gravity of
offence, nature of the crime, age, criminal antecedents of the
convict, impact on public confidence in court, etc. before
passing an order for release.
17. Admittedly, no such opportunity was granted to the State as
contemplated under the first proviso of Section 389 Cr.PC in these
appeals. Therefore, the impugned orders to the extent of release of
the private respondents on bail are set aside. 
 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1516 OF 2014


Atul Tripathi V State of U.P. and another


Citation;2014 ALLMR(cri) 3326 SC

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