-Dr Ajay Nathani

Suspension of Sentence pending appeal

Article 21 of constitution provides that no person shall deprive of his personal liberty except
by applying the procedure established by law. The personal liberty of individual can be
curtailed by procedure established by law. The Criminal Procedure Code is one of such
procedural law.

Section-389. Suspension of sentence pending the appeal; release of appellant on bail

(1) 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, or on his own
bond.[Provided that the appellant Court shall, before releasing on bail or on his own bond a
convicted person who is convicted of an offence punishable with death or imprisonment for
life or imprisonment for a term of not less than ten years, shall give opportunity to the
Public Prosecutor for showing cause in writing against such release:
Provided further that in cases where a convicted person is released on bail it shall be open
to the Public Prosecutor to file an application for the cancellation of the bail]
(2) The power conferred by this section on an Appellate Court may be exercised also by the
High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

In the case of Rama Narang V/s Ramesh Narang (1995(2) SCC 513) Three Judges Bench
of Hon'ble Apex Court is elaborately considered the scope and ambit of the power of
Appellate Court envisaged in section 389 of Cr.P.C as under: -
“Appellate Court has powers to suspend the execution of sentence. The section
389(1) deals with power of the Appellate Court is the execution of a sentence or execution of
an order and obviously the order referred in sub section (1) must be an order which is
capable of execution. It has no power to suspend the order of conviction. 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 imposed fine or released on probation which are
capable of execution and which, if not suspended, would be required to be executed by the
authorities.”
The most relevant factor for the exercise of power of suspending the sentence is the degree
of probability of the appeal being finally allowed. Such degree of probability has to be
determined on the basis of prima facie satisfaction. The other factors relevant for the
enquiry would include ancillary matters such as the nature and gravity of the offence and
the age and health of the accused. In the case of Ashok Malhari Sonawane Vs. State of
Maharashtra, Criminal Application No.1245 of 2014 (19-3-2015) it has been observed
that even additional evidence can be considered for suspension of conviction pending
appeal. In that case applicant was working as Assistant allegedly demanded bribe for
issuing allotment letter to the complainant in MHADA scheme. Applicant contended that
complainant was actually declared as 'ineligible' but the superior officers had done
manipulation by changing entries in G-form and making him 'eligible' and he was trapped
falsely. Applicant obtained certain relevant documents under the RTI Act after his
conviction and produced in court. In the copy of G-form the complainant was shown as
'patra' (eligible) by erasing the words 'apatra' (ineligible). It was held, observations made in
the departmental enquiry, prima facie, support the defence. Said material in the form of
authentic documents, if given in evidence, is capable of changing the complexion of the
whole case. Investigating Agency strangely does not feel it necessary to investigate into
those aspects. Case is quite extra-ordinary and if the order of conviction is not suspended,
the applicant is likely to suffer grave and serious prejudice resulting in injustice. Conviction
of applicant suspended pending the hearing and final disposal of the Appeal. In the case of

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Mulchand Changumal Jethwani & Ors. Vs. State of Maharashtra, Criminal Application
No.2 of 2015 (Smt. Sadhana S. Jadhav, J.), it has been observed good behavior of
appellants who were on bail during pendency of trial considered sufficient for granting bail.
“where the applicants were on bail during the pendency of trial and have not committed
breach of any conditions imposed upon them. Appeal not likely to be heard in the near
future. Substantive sentence imposed upon the applicant nos. 1 and 2 is suspended and
they be enlarged on bail.

Application for suspension of sentence of imprisonment being rejected once can be

presented again giving more details and further developments and different considerations.
In the case of Babu Singh and Others Vs. The State of Uttar Pradesh AIR 1978 SC 527,
It has been observed by their Lordships;

“But an order refusing an application for bail does not necessarily

preclude another, on a later occasion, giving more materials, further
developments and different considerations. While, we surely must set
store by this circumstance, we cannot accede to the faint plea that we
are barred from second consideration at a later stage. An interim
direction is not a conclusive adjudication and updated
reconsideration is not overturing and earlier negation. In this view,
we entertain the application and evaluate the merits pro and con”.

Prior to amendment to CrPC notice to public prosecutor before suspension of sentence was
not necessary. First proviso to section 389 now makes it mandatory to give opportunity to
public prosecutor for showing cause in writing against release of person who is convicted of
an offence punishable with death or imprisonment for life or imprisonment for a term not
less than 10 years.

In the case of Bay Leathers Exports Pvt. Ltd. Vs. Saileela Mad, 1998 Cri LJ 3719, the
question was for consideration in this revision petition was whether the appellate court
under Section 389 (1) of the Criminal Procedure Code, 1973, could suspend the sentence of
fine, while admitting the appeal and if so, under what circumstances. It has been observed,
“the expression “sentence”, of course, means, not only substantive sentence of
imprisonment but also included sentence of fine. Though the language of Section 389 of the
Criminal Procedure Code is silent in terms of the same, the appellate court has to consider
the two situations, while ordering suspension of sentence of fine. The one is to find out the
reasons for suspending the sentence of fine and the next is to impose suitable conditions,
as may be justified on the facts of each case, in order to ensure that the order of sentence of
fine which may ultimately be imposed on the appellant as a result of the appeal, can be
executed without any difficulty”.

Thus, while using discretion for suspension of sentence of fine reason must be given for
suspending the sentence of fine and suitable conditions must be imposed.

The Court of Sessions after hearing the appeal cannot give time to the accused to surrender
because it indirectly tantamount to suspending the sentence or releasing the convicted
accused on bail. The moment the Sessions Court dismisses the appeal, it follows that the
accused whose appeal has been dismissed has to surrender to serve out the sentence
imposed upon him. It is only the High Court which can pass appropriate orders in this
regard.

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When the appellate Court suspends the execution of sentence, and grants bail to an
accused, the effect of the order is that the sentence based on conviction is for the time being
postponed, or kept in abeyance during the pendency of the appeal. By suspension of
execution of sentence under S. 389 Cr. P. C. It has the only effect of avoiding sufferance of
sentence pending appeal.

Sentence - The term sentence is used in criminal law. It is the appropriate word to denote
the action of the court declaring the consequences to the convict of the fact thus
ascertained.

There are a variety of sentences that may be imposed on an accused, if he’s found guilty in
a criminal trial. He may be sentenced to:

 Pay a fine
 Probation
 Imprisonment
 Death

“Suspension” means to take or withdraw the sentence for the time

being. It is an act of keeping sentence in abeyance at the pleasure of the
person who is authorized to suspend the sentence, and if no conditions
are imposed, the person authorized to suspend has the right to have the
offender re-arrested and direct that he should undergo the rest of the
sentence without assigning any reason. Law Commission, 41st Report
p. 248 para 29.1

Suspension of Sentence by Probation

The court may stay a sentence of probation if the accused appeals the conviction. Probation
is a period of evaluation in which the accused must follow certain conditions, such as not
leaving the state etc. If he fails to follow these conditions, he may be sentenced to
imprisonment by the court. Just like staying a sentence to pay a fine, the court has the
discretion to set any appropriate terms it wants in staying a sentence of probation.

Staying a Sentence of Imprisonment and Death:

If the court suspends a sentence of imprisonment, the accused is released while his appeal
is pending, the accused is released if the court grants him bail, and he meets the terms
fixed by the court. Bail allows the accused to be temporarily released from prison in
exchange for cash or a bond from a surety. In order to be granted bail, the accused must
show by clear and convincing evidence that he won’t flee or endanger other people if he’s
released pending his appeal. The accused must also show that the appeal isn’t for the
purpose of delay.

If the accused is not granted bail or fails to meet the terms fixed by the court for bail, the
sentence of imprisonment won’t be stayed. However, the court can recommend that the
accused be confined near the place of the trial or appeal to help him in preparing his
appeal.

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The accused is entitled to credit towards his sentence of imprisonment for any time served
in jail while his appeal is pending. If the accused’s appeal is denied, he’ll have already
served part of his sentence of imprisonment.

Staying a Sentence of Death

The death penalty is the most serious criminal punishment that can be given to an
accused. If an accused’s sentence of imprisonment isn’t stayed by the court, he can be
released from custody if the conviction is later found to be defective. However, the death of
the accused is final. Nothing can be done if a death sentence isn’t stayed and the conviction
is later overturned. Therefore, any sentence of death is stayed if the accused appeals the
conviction or sentence.

S.389 postulates a right of appeal to convicted person and the power of the appellate court
arises when appeal is filed. Where the appellate court suspends execution of sentence or
grants interim bail pending the appeal, the order of conviction still remains in existence. In
Pampapathy v. State of Mysore (AIR 1967 SC 286) it is held by Hon. Supreme Court that
the Appellate Court can alone can exercise the powers conferred by sub section (1) of this
section. But in the absence of an appeal the powers cannot be exercised, because the sub
section says “pending any appeal by a convicted person” the execution of sentence may be
suspended. In a proper case the High Court has inherent power under section 482 of the
Code to cancel the order of suspension of sentence and grant of bail to the appellant made
under this section and to order the appellant be rearrested and committed to jail custody.

In Masood Ali Khan V/s. State of U.P. (2009 Cri. L.J.1322 (1324) (SC) Hon. Supreme
Court held that, Section 389 of the Cr. P. 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. 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 against. 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.
‘Convict’ means declared to be guilty of criminal offence by the verdict of court of law. That
declaration is made after the court finds him guilty of the charges which have been proved
against him. Thus, in effect, if one prays for stay of conviction, he is asking for stay of
operation of the effects of the declaration of being guilty.

Section 389 (1) requires that powers under this section cannot be exercised without
recording reasons. This section though gives discretionary powers to the appellate court but
it has to be exercised judiciously. In Kishorlal Versus Rupa and others, [2004 (7) SCC
638], Hon'ble Apex Court observed that 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.

6. In Bhagwan Rama Shinde Versus State of Gujarat [(1999) 4 SCC 421], the Hon'ble
Apex Court pleased to lay down guidelines for the purpose of exercising powers by appellate
Courts, under section 389 (1) of Cr.P.C. in following words:

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"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 endeavor 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."

The first and foremost requirement to be fulfilled by the Appellate Court is that it has to
record the reasons in writing before execution of the sentence or order appealed against is
suspended. Order de hors the reasons may be subjected to critical judicial scrutiny and
may be quashed. The significance of the importance of writing the reasons in writing was
well explained by the Supreme Court of India in the case of Kanaka Rekha Naik Versus
Manoj Kumar Pradhan reported in AIR 2011 SC 799.The Apex Court ultimately remitted
the matter for afresh consideration by observing as under:-

“But, suspension of sentence, pending any appeal by a convicted person and

consequential release on bail is not a matter of course. The appellate Court is
required to record reasons in writing for suspending the sentence and release of
a convict on bail pending the appeal. The impugned order does not record any
reason whatsoever except vague observation that nature of allegations have been
taken into consideration. The order clearly reflects that the High Court was
mainly impressed by the fact that the respondent is a sitting M.L.A. In the
circumstances, we find it difficult to sustain the order. It is for the High Court to
arrive at a proper conclusion for which purpose, reasons are required to be
recorded.”

Once the reasons are recorded to support the order, the next imperative requirement is that
opportunity of being heard has to be given to the Public Prosecutor when the convict is to
be released on bail where the offence is punishable with death and imprisonment for life or
imprisonment for a term of 10 years. Otherwise the order of bail would stand vitiated the
mandate of the proviso to Section 389 (1) being not complied with. On this point, there is
specific decision of the Supreme Court in the case of Atul Tripathi Versus State OF U.P.
reported in AIR 2014 SC 3062. The Apex Court by magnifying this requirement also laid
down the parameters for suspension of sentence and observed: -

“(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

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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.”

Coming to the further parameters for suspending the sentence in the case of Kishori Lal
Versus Rupa, reported in AIR 2005 SC 1481 the Supreme Court laid down that the
appellate Court is under an obligation to objectively assess the cases so as to warrant
suspension of sentence. Simply because no misuse of liberty was made during the trial is
no per se a good ground for suspending the sentence. There is vast difference between
pretrial bail and bail after conviction. The requirement of recording reasons in writing
clearly indicates that there has to be careful consideration of the relevant aspects and the
order should not be passed as a matter of routine. This principle was reiterated in the case
of Vasant Tukaram Pawar Versus State of Maharashtra reported in (2005) 5 SCC 281 &
Gomti Versus Thakurdas reported in (2007)11 SCC 160.

8. The Apex Court in supra Kishori Lal also observed referring to the decision in
Vijaykumar V/s. Narendra and Ramji Prasad V/s. Ratankumar Jiswa that in cases
involving conviction U/sec.302 of the Indian Penal Code only in exceptional cases benefit of
suspension of sentence can be granted. The relevant factors to be considered by the Court
were enumerated by the Supreme Court as under: -

“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.”

Since these aspects were not considered by the High Court, it was remitted back to the trial
for afresh consideration.

9. The legal parameters for suspending of sentence have also been laid down by the Apex
Court in the case of Angana & Anr. Versus State of Rajasthan reported (2009) 3 SCC
767.The Apex Court also referred to the decision in Takhat Singh vs. State of M.P.,
(2001) 10 SCC 463 in which, one important factor that there is no possibility of early
hearing of the appeal in the High Court was also considered. The Court also referred to the
decision in Kashmira Singh vs. State of Punjab, reported in (1997) 4 SCC 291 in which,
it was laid down “Can the Court ever compensate him for his incarceration which is found
to be unjustified?”

10. In Sidharth Vashisht @ Manu Sharma Vs. The State (N.C.T. of Delhi), (2008) 5 SCC
230, the Apex Court after considering all the earlier decisions on the issue of consideration
of an application under Section 389 of the Code of Criminal Procedure, has concluded, that
in serious offences like murder, sentence would generally be not suspended by court.

Implicitly laying down one additional parameter the Apex Court in the case of State of
Maharashtra Versus Pappu Alia Suresh Budharmal Kalani, reported in (2014) 11 SCC
706, held that prima facie hostility of the wife, father of the deceased and P.W.No.9 driver
can be taken in to account when none of the witnesses have made reference to the role
played by the accused in hatching the conspiracy to kill the deceased, especially when there

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is no explanation in the cross-examination. Ultimately, substantive sentence was

suspended and the accused was ordered to be released on bail on some conditions.

16. These principles may be summed up thus: - Before suspending the sentence, the Court
has to pass a well-reasoned order by exercising the discretion judiciously. It shall there
before afford an opportunity being heard to the public prosecutor. It has to consider all the
relevant factors like nature and seriousness of the offence, antecedents of the accused, time
likely hear the appeal, any specific embargo laid down in the special statute, the period of
sentence undergone, the manner in which the crime was allegedly committed and
desirability to release the accused on bail if the offence relates to murder.

Power to suspend a sentence versus power to suspend the conviction

Pending the disposal of an appeal or a revision, appellate and revisional courts have powers
to (i) suspend the execution of a sentence and release the appellant on bail or (ii) suspend
the conviction itself and release the appellant on bail. In the case of appellate courts, these
powers reside in Section 389(1) of the Code of Criminal Procedure, 1973 (“CrPC”). The
important distinction between these powers is that a suspension of the execution the
sentence pending an appeal does not erase the conviction or suspend any disqualification
that arose from the conviction. A suspension of the conviction on the other hand, has the
legal effect of staying any disqualifications under any law because of the conviction. For
example, a person is disqualified from being a member of Parliament or the Legislative
Assembly or Legislative Council of a state under Section 8(3) of the Representation of People
Act, 1951 if he or she has been convicted and sentenced for any offence for not less than
two years. If an appellate court has stayed the conviction under Section 389(1), it has the
effect of staying such a disqualification. Not so, if the order merely suspends the execution
of the sentence.

Power to suspend conviction – exercise with caution

The Supreme Court has held that the power to suspend the conviction must be exercised
only in exceptional cases where a failure to stay the conviction would lead to injustice and
irreversible consequences. In Navjot Singh Sidhu v. State of Punjab,(Cri Appeal 59/ 2007
SC) the Court held that the person seeking a stay of the conviction should specifically draw
the attention of the appellate court to the consequences that may arise if the conviction is
not stayed. A person convicted cannot obtain an order of stay of conviction without that.
In State of Tamil Nadu v. A. Jaganathan (1996 SCALE(5)382) and in K.C. Sareen(Cri Appeal
770/2001) the Court has even held that a conviction on a corruption charge against a
public servant should not be suspended even if the sentence of imprisonment is suspended.
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