Masood Ali Khan Vs.
State of U.P. & Ors.  INSC 217 (5 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2009 (Arising
out of SLP (Crl.) No.8190 of 2008) Masood Ali Khan ......Appellant Versus State
of U.P. & Ors. ......Respondents
Dr. ARIJIT PASAYAT,
in this appeal is to the order of a Division Bench of the Allahabad High Court
granting bail to the respondent Nos. 2 to 4 during the pendency of Criminal
Appeal No. 3693 of 2007.
facts as projected by the complainant in FIR Case Crime No.198 of 2005 of P.S.
Kotwali district, Rampur, Uttar Pradesh are as follows:
The FIR was lodged on
29.5.2005 stating that the respondent armed with deadly weapons alongwith
co-accused Chhote and Raza came to a milk dairy where brother of the appellant
namely Javed (hereinafter referred to as the `deceased') was milking the
buffaloes. He was attacked with Patala Daon - a sharp edged weapon, knife and
dagger due to which he fell down after receiving the fatal injuries. The
accused persons thereafter fled away towards the forest after terrorizing
people by firing in the air. Prior to this incident, respondents Lalam and
Murshad and co-accused Chhote had stolen a buffalo of the deceased and for that
they were required to pay Rs.20,000/- as per the decision of the panchayat held
earlier. Appellant brought the injured to the hospital where he was declared
dead. The incident had taken in a broad day light in a busy Hazratpur crossing
at Rampur City and was witnessed by many persons.
charge sheet was filed. On the basis of statement made by respondent Lalam
recovery of a Patal was made. Subsequently, blood stained dagger was also
recovered. Similarly, one country made pistal and five life cartridges were
recovered. Accused Raza Ali could not be apprehended and he has absconded.
Learned Additional Sessions Judge, Rampur, placing reliance on the evidence of
the witnesses found the respondents guilty. Each of the respondents 2 to 4 and
co-accused Chhote was awarded life sentence. An appeal (Criminal Appeal No.
3693 of 2001) was filed before the High Court. The respondents filed an
application for release on bail. By the impugned order bail has been granted.
counsel for the appellant submitted that the High Court's order is indefensible.
By a practically non-reasoned order, bail has been granted. Various other
factors have been pointed out, they are essentially as follows:
(a) No opportunity
was given by the High Court to public prosecutor as required under amended
proviso (1) of Section 389 Cr.P.C.
(b) The Division
bench completely ignored the fact that respondents Lalam and Akbar during the
trial had fled from the custody and were convicted for this offence by C.J.M.
(c) High Court
ignored the fact that it was the case of brutal broad daylight murder for which
accused were not granted bail by the Sessions or High Court during Trial.
(d) No cogent or
detailed reasons were given by the High Court while granting bail to
Respondents in their appeal against their conviction which is a mandatory
requirement of Session 389 Cr.P,C, (e) Division Bench of High Court ironically
and without applying its judicial mind granted bail to the Respondents in their
appeal and suspended their sentence of life imprisonment during pendency of
their appeal even when there was no application under Section 389 Cr.P.C. for
suspension of sentence by respondents.
(f) The Division
Bench of the High Court also ignored the criminal history of the accused
persons and did not take into consideration the possibility of misuse of
liberty by respondents.
is no appearance on behalf of respondents in spite of service of notice.
the outset it needs to be noticed that the High Court has not referred to any
circumstance which warrants grant of bail. The only reason given reads as
allegations made in the FIR and the nature of injuries mentioned in the post
mortem report and the weapons alleged to have been used by the present
appellants in the incident are sufficient to grant bail to the appellants as
the fatal ante-mortem injuries appear to have been caused by Patal (Dav), which
has been assigned on the co-accused Chhotey."
389 of the Code empowers the Court to suspend the sentence pending the appeal
and for release of the appellant on bail. Section 389 so far relevant reads as
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 he 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
Appellate 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.
5 (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 convicted person to a Court subordinate
(3) Where the
convicted person satisfies the Court by which he is convicted that he intends
to present an appeal, the Court shall, - (i) where such person, being on bail,
is sentenced to imprisonment for a term not exceeding three years, or (ii)
where the offence of which such person has been convicted is a baliable one,
and he is on bail, order that the convicted person be released on bail unless
there are special reasons for refusing bail, for such period as will afford
sufficient time to present the appeal and obtain the orders of the Appellate
Court under sub- section (1), and the sentence of imprisonment shall, so long
as he is so released on bail, be deemed to be suspended.
(4) When the
appellant is ultimately sentenced to imprisonment for a term or to imprisonment
for life, the time during which he is so released shall be excluded in
computing the term for which he is so sentenced."
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 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.
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
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.
parameters governing Section 389 of the Code were highlighted in Kishori Lal v.
Rupa and Ors. (2004 (7) SCC 638), Vasant Tukaram Pawar v. State of Maharashtra
(2005 (5) SCC 281) , Gomti v. Thakurdas and Ors. (2007 (11) SCC 160).
at from any angle the order of the High Court is clearly indefensible and is
set aside. Respondents 2 to 4 shall surrender to custody forthwith.
appeal is allowed.
(Dr. ARIJIT PASAYAT)