Kishori Lal Vs. Rupa & Ors
 Insc 569 (23 September 2004)
Arijit Pasayat & C.K.
Thakker (Arising out of S.L.P.(Crl.) No.2223 of 2004) Arijit Pasayat, J.
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 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
(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.