Hon’ble Supreme Court on Scope and Parameters for Suspension of Sentence and Suspension of Conviction U/S 389 Cr.P.C

When a person is convicted of an offence, he has a remedy to move an application U/S 389 Cr.P.C for Suspension of Sentence/Suspension of Conviction and the Hon’ble Appellate Court have to decide an application U/S 389 Cr.P.C keeping into consideration likelihood of the convict’s being acquitted in appeal, nature and gravity of the offence and accusations made against the convict, criminal antecedents/history of the convict, the convict was on bail during the trial and never misused the liberty while on bail, the appeal is not likely to be heard in the near time soon, good behaviour of the convict in jail and age, medical condition and other related health factors of the convict.

Section 389(1) CrPC deals with the powers of the appellate court power of suspension of execution of the sentence or order appealed against during the pendency of the appeal. It reads as follows: “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”.

Suspension of Sentence V/S Suspension of Conviction

Suspension of Sentence simply means that during pendency the appeal convict’s sentence be suspended however his conviction will remain in force, but on the other side in case of suspension of conviction, his conviction will halt and its consequences the convict may have face due to that conviction.

Rama Narang V/s Ramesh Narang (1995(2) SCC 513) Hon’ble Supreme Court for the first time recognized the authority of the appellate court to suspend conviction. The court was of the opinion– “that there is no reason to give a narrow interpretation on Section 389(1) of the code and to not extend it to an order of conviction in a fit case.” A wide interpretation was given to section 389(1) wherein the power of the court to stay the order of conviction was acknowledged. Correspondingly, it was highlighted that the expression “order appealed against” in section 389(1) means the order of conviction. Thus, section 389(1) does not only provide relief against order of sentence and bail but also encompasses stay on the order of conviction.

Further, it was observed that even if it is considered that the Code of Criminal Procedure 1973, does not provide the High Court with the power of staying the order of conviction under section 389(1) then the same can be exercised by the High Court in its inherent jurisdiction under section 482 of the code. Section 482 provides the High Court with inherent jurisdiction to make orders as may be necessary to prevent abuse of process of court and to secure justice.

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.

In Navjot Singh Sidhu v. State of Punjab,(Cri Appeal 59/ 2007 SC) Hon’ble Supreme Court has 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.

Parameters for Suspension of Sentence:-

In Rama Narang V/s Ramesh Narang (1995(2) SCC 513) Hon’ble Supreme Court 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 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 Bhagwan Rama Shinde Gosai & Ors. v. State of Gujarat (AIR 1999 SC 1859) Hon’ble Supreme Court held that when a convicted person is sentenced to a fixed period of sentence and the appellate court finds that due to practical reasons the appeal cannot be disposed of expeditiously, it can pass appropriate orders for suspension of sentence. The suspension of the sentence by the appellate court has, however, to be within the parameters of the law prescribed by the Legislature or spelt out by the courts by judicial pronouncements. The exercise of judicial discretion on well recognized principles is the safest possible safeguards for the accused which is at the very core of criminal law administered in India. The Legislature cannot, therefore, make law to deprive the courts of their legitimate jurisdiction conferred under the procedure established by law .As in this case as the High Court was not inclined to hear the appeal expeditiously we are of the view that the sentence passed on appellants can be suspended on some stringent conditions.

In Angana & Anr vs State Of Rajasthan on 6 February, 2009 AIR 2009 SC 1669 Hon’ble Supreme Court held that “The appellants were on bail during the pendency of the case before the Sessions Court. The Sessions Court has acquitted most of the accused persons after trial except the appellants. It is not the case of the other side, that, when the accused were on bail they had indulged themselves in any offence either under the provisions of Indian Penal Code or any other Statute. It is also not the case of the prosecution that when the appellants were on bail they had either jumped the bail or were any way responsible for prolonging the proceedings before the Sessions Court, and it is also not the case of the other side that they would abscond and would not be available, to undergo the sentence if the appellate court affirms the order passed by the Sessions Court.

Taking into consideration over all view of the matter and in particular offence alleged and sentence imposed and further taking into consideration the acquittal of other accused persons, who were also chargesheeted in the same offences as that of the appellants and further taking into consideration the conduct of the appellants during the trial before the Sessions Court when they were on bail. We, therefore, suspend the sentence and direct the appellants to be released on bail

In State Of Haryana vs Hasmat on 26 July, 2004 AIR 2004 Supreme Court 3936 Hon’ble Supreme Court time distinguished between Regular Bail & Suspension of Sentence:-

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 period the accused-respondent as granted parole.

In the case of Atul Tripathi Versus State OF U.P. reported in AIR 2014 SC 3062 Hon’ble Supreme Court laid down the parameters for suspension of sentence and observed: –

• 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.
• On such opportunity being given, the State is required to file its objections, if any, in writing.
• 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.
• 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

In Mulchand Changumal Jethwani & Ors. Vs. State of Maharashtra, Criminal Application No.2 of 2015 (Smt. Sadhana S. Jadhav, J.), it has been observed that good behavior of appellants who were on bail during pendency of trial considered sufficient for suspension of sentence. “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 is suspended and they be enlarged on bail.

Mosa Koya KP v. State (NCT) of Delhi| Criminal Appeal No 1562/2021 Hon’ble Supreme Court while allowing the suspension of sentence has held that “The appeal is unlikely to be heard early. In all probability, the entire sentence would have been undergone by the time the appeal is heard,”,the bench said that the appellant’s sentence shall remain suspended U/S 389 CrPC.

In the case of Omprakash Sahni Vs Jai Shankar Chaudhary and Anr on 02 May 2023 Hon’ble Supreme Court has held that a Sentence can be suspended in appeal only if convict has fair chances of acquittal:-

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 above said 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 take 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 re-appreciate the evidence at the stage of Section 389 of the CrPC and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach.

In the case of Vishnubhai Ganpatbhai Patel & Anr.Vs State of Gujarat dated (03.11.2023) Hon’ble Supreme Court had noted that there is “No Hard and Fast rule which requires an accused to undergo sentence for a particular period before his prayer for suspension of sentence is considered”.

In the case of Atul @ Ashutosh Vs. State Of Madhya Pradesh (CRL.APPEAL No.579 of 2024) Hon’ble Supreme Court has held that delay in deciding appeal is ground for suspension sentence of the convict “The appeal against conviction of the year 2022 is not likely to reach before the convict completes the entire sentence. Hence, a case is made out for grant of suspension of sentence pending the appeal and grant of bail.,”

Parameters for Suspension of Conviction

In K.C. Sareen v. Central Bureau of Investigation (2001) 6 SCC 584, the Supreme Court clarified that 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 convicted 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 all aspects including the ramifications of keeping such conviction in abeyance.”.

In Ravikant S. Patil vs Sarvabhouma S. Bagali 2007 (2) AIR KAR R 152, Hon’ble Supreme Court holds that an order granting a stay of conviction should not be the rule but an exception and should be resorted to in rare cases depending upon the facts of a case. However,and where conviction, if allowed to operate would lead to irreparable damage and where the convict cannot be compensated in any monetary terms or otherwise, if he is acquitted later on, that by itself carves out an exceptional situation.

In  State of Maharashtra vs. Balakrishna Dattatrya Kumbhar, (2012) 12 SCC 384 as follows: “The appellate court in an exceptional case, may put the conviction in abeyance along with the sentence, but such power must be exercised with great circumspection and caution, for the purpose of which, the applicant must satisfy the court as regards the evil that is likely to befall him, if the said conviction is not suspended. The court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examine whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The court additionally, must record in writing, its reasons for granting such relief. “

In State of Maharashtra v. Gajanan [(2003) 12 SCC 432 : 2004 SCC (Cri) Supp 459] ,  Union of India v. Atar Singh [(2003) 12 SCC 434 : 2004 SCC (Cri) Supp 461] , [which were cases under the Prevention of Corruption Act, 1988], the court dealt with specific situation of loss of job and it was held that it is not one of exceptional cases for staying the conviction. In K.C. Sareen v. Central Bureau of Investigation, it was held 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 is 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.

Conclusion:

Thought by virtue of Section 389 Cr.P.C Hon’ble Appellate Court has the power for Suspension of Sentence and Suspension of Conviction, but the Hon’ble Court are duty bound to use those powers judicially keeping into consideration the likelihood of the convict’s being acquitted in appeal, nature and gravity of the offence and accusations made against the convict, criminal antecedents/history of the convict, the convict was on bail during the trial and never misused the liberty while on bail, the appeal is not likely to be heard in the near time soon, good behaviour of the convict in jail and age, medical condition and other related health factors of the convict.

And in so far as suspension of conviction is considered, Hon’ble Appellate Court must exercise that with great circumspection and caution, for the purpose of which, the convict must satisfy the court as regards the evil that is likely to befall him (irreparable damage and where the convict cannot be compensated in any monetary terms) if the said conviction is not suspended. However, at the same time 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 is suspended.

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