Shiv Kumar Vs. State of
NCT of Delhi  INSC 2169 (15 December 2008)
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
Dr. ARIJIT PASAYAT,
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.
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.
counsel for the State on the other hand supported the judgment.
decisions were cited at the bar.
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."
Vijay Kumar v. Narendra [2002(9) SCC 364] it was inter alia observed as
"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
In the above
circumstances, it is difficult for us to even surmise the circumstance which
prompted the learned Single Judge to 3 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."
course both these cases related to offence punishable under Section 302 IPC.
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'.
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 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.
appeal is disposed of accordingly.
(Dr. ARIJIT PASAYAT)