can anyone please explain the effect of suspension of sentence by govt. under sec 432 ? i know the effect of sec 389 when court grants suspension?
Ankit 15 June 2017
can anyone please explain the effect of suspension of sentence by govt. under sec 432 ? i know the effect of sec 389 when court grants suspension?
Ms.Usha Kapoor (CEO) 16 June 2017
under section 432 Cr.P.C Suspension or remissionof sentnence is done by Governmetn uponsome co0nditions. If th eoffender/acused breaches those conditions the accused will be taken baxck into custody by cancelling hi ssuspension and re,ission. Under section 389 COURT MY GRANT BAIL OR SUSPEND TH E SENTENCE.
an application for bail and suspension of sentence pending appeal is maintainable as an integral part of the appeal under Section 389 of the Code. The Appellate Court may grant bail even without going into the merits of the case under this section. It also has inherent power to order stay of realization of fine, if any, under this section.
It must, however, be stated that though the Appellate Court has been given the power to suspend the sentence of the accused person or its execution but it does not have power to suspend conviction under this section except in very exceptional cases.
Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!
Article shared by Sanju Gangaraddi
Legal Provisions of Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Suspension of Sentence Pending the Appeal; Release of Appellant on Bail:
Under this section, the appellate Court can exercise power to grant bail to a convicted person pending his appeal. The Appellate Court can also order suspension of sentence of the convicted person if in confinement.
ADVERTISEMENTS:
The High Court of Madhya Pradesh in Gopal v. State of M.P., has emphatically stressed that ADVERTISEMENTS:
Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!
Article shared by Sanju Gangaraddi
Legal Provisions of Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Suspension of Sentence Pending the Appeal; Release of Appellant on Bail:
Under this section, the appellate Court can exercise power to grant bail to a convicted person pending his appeal. The Appellate Court can also order suspension of sentence of the convicted person if in confinement.:
The High Court of Madhya Pradesh in Gopal v. State of M.P., has emphatically stressed that an application for bail and suspension of sentence pending appeal is maintainable as an integral part of the appeal under Section 389 of the Code. The Appellate Court may grant bail even without going into the merits of the case under this section. It also has inherent power to order stay of realization of fine, if any, under this section.
It must, however, be stated that though the Appellate Court has been given the power to suspend the sentence of the accused person or its execution but it does not have power to suspend conviction under this section except in very exceptional cases.
The conviction of the accused person pending appeal cannot be suspended by the Appellate Court even under Section 482 of the Code or under any other provision of the Code. In fact there is no provision under any law for suspension of the conviction pending an appeal:
It, therefore, follows that since the order of conviction remains in existence, the disqualification due to conviction continues to remain in operation. The High Court, also has the power under Section 482 of Cr.P.C. to cancel the order of suspension of sentence (and not the conviction) and grant of bail to the appellant made under Section 389 (1) and order his re-arrest and committal to custody in jail.
In State of Punjab v. Deepak Mattu the Special Judge, Fatehgarh Saheb, Punjab ordered suspension of conviction of the accused pending appeal on the ground of possible delay in the disposal of appeal and existence of arguable points. In appeal against this order of suspension of conviction, the High Court vacated the stay of conviction granted to the accused holding that the grounds stated by the Special Judge were not by themselves sufficient enough to grant suspension of conviction.
The High Court reiterated that suspension of conviction could be allowed in a very exceptional case and specifically stated that suspension could not be extended for offences under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988. This not being an exceptional case, there was no reason to stay the conviction by vacation of the order dated 11th January, 2005 or to review the same under Section 389, Cr. P.C.
Summarising the legal position in regard to application of provisions of Section 389, the Supreme Court in this appeal observed that “though the power to suspend an order of conviction apart from the order of suspension of sentence, is not alien to Section 389 (1) of Cr. P.C., the exercise of it should be limited to very exceptional cases. Merely because a convicted person files appeal challenging his conviction, the Court should not suspend conviction. The Court has a duty to look at all aspects including ramifications of keeping such conviction in abeyance.” The Court further held that the High Court has inherent powers to modify its own interlocutory order when matter is yet to be finally disposed of. Therefore, High Court’s order declining to recall its own judgment was liable to be set aside.
ADVERTISEMENTS:
Reiterating the need for granting bail or suspension of sentence under Section 389, the Supreme Court in Bhagwan Rama Shinde v. State of Gujarat, inter-alia, observed that so long as the Appellate Court is not in a position to hear the appeal of the accused expeditiously, ordinarily he should be released on bail unless there are cogent grounds for refusing bail. The reason being that in the event the accused is ultimately found to be innocent, he would have not to remain in jail for unduly long time.
It must, however, be stated that an order of release of the convicted person (appellant) on bail under this section does not set aside his sentence, but it is merely suspended and as such, the appellant remains a convict for all the practical purposes. The Appellate Court has to record reasons in writing for the suspension of the sentence of the appellant.
The power of the High Court to suspend the sentence of the appellant under Section 389 (1) during the pendency of the appeal has also been maintained under the N.D.P.S. Act, 1985 as Section 36-B of the Act empowers the High Court to exercise similar power subject to the limitations laid down under Section 37 of that Act.
The power to release the appellant on bail is not restricted to the Appellate Court but sub-section (3) extends similar power to the Court which passed the sentence so as to enable the convicted person to present an appeal. But the power can be exercised by the Court only in bailable offences, and where the accused person is sentenced to less than three years’ imprisonment.
The Supreme Court in Kishorilal v. Rupa, held that mere fact that during the trial, accused were granted bail and there was no allegation of misuse of liberty, is not of much significance. The effect of bail granted during trial loses 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 liberty, 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 Apex Court held that in the instant case, the High Court does not seem to have kept the correct principle in view.
The Supreme Court in Mayuram Subramanian Srinivasan v. CBI made it clear that sub-section (3) of Section 389, Cr. P.C. empowers the trial Court to release a convicted person on bail for such period as will afford him sufficient time to present an appeal and obtain orders of the Appellate Court under sub-section (1), namely, release on bail, and it is only for such period that the sentence of imprisonment shall be deemed to be suspended. The provisions of Section 389 of Cr. P.C. and that of the Supreme Court Rules, 1966, are independent provisions.
In this case it was argued that statutory provision of Section 389 (3) has an overriding effect over the Supreme Court Rules and, therefore, once bail has been granted to a convicted person by the trial Court. The Apex Court cannot insist that he should surrender to the sentence under Rule 13-A before his appeal can be registered. The Supreme Court negative this contention and held that both these provisions, i.e., Section 389 (3) and Rule 13-A of the Supreme Court Rules, 1966 being independent provisions they will have to be considered on their own merits.
In the case of Bhuvneshwar Yadav v. State of Bihar the question of grant of bail pending appeal against conviction for murder was involved for adjudication before the Court. Appellant’s earlier application for release on bail pending appeal was rejected with liberty to renew the prayer after six months.
The grant of bail to him on subsequent application mere because of liberty given to the appellant to apply again after six months was held to be improper. The Supreme Court opined that grant of liberty to renew the prayer for bail after six months did not in any way show that there was entitlement for release on bail.
In the case of Navjot Siddhu v. State of Punjab the appellant was a sitting Member of Parliament. He was convicted for offence committed much prior to his entry into politics. Appellant had resigned from Membership of Parliament immediately. He did not take benefit of clinging on to his office by merely filing appeal. He was desirous a getting fresh mandate from people.
The Court observed that conviction of the appellant was liable to be suspended as he had chosen a moral path and set high standards of public life and if his conviction was not suspended, he would suffer irreparable damages. The grant of stay of conviction is recommended in view of the special circumstances and facts of the case.
Sub-section (4) makes it clear that when an appeal of the appellant fails, the time during which he remained released on bail under Section 389, should be excluded while computing the term for which he is sentenced to imprisonment.
The Supreme Court in its decision in B. Subhaiah v. State of Karnataka, has held that while considering the application for suspension of sentence of the appellants who are Government servants convicted for serious offences under Sections 218, 392 and 466 I.P.C., the Appellate Court must take into account the moral lapses of the convicts using its discretion in the interest of justice.
In C. B. I., New Delhi v. M. N. Sharma, the respondent was convicted for the offence of corruption. He filed an appeal against his conviction which was pending. The Appellate Court suspended his conviction without recording any reasons. The Supreme Court held that such an order was liable to be set aside.
In Suzanne Louise Martin v. State of Rajasthan, appellant the owner of guest house was convicted for rape on foreign journalist and sentenced to life imprisonment. The victim was emotionally, mentally and physically wrecked by the incident. Under the circumstances, the order suspending the sentence and granting bail to the appellant was totally unjustified; hence the Supreme Court quashed the order.
an application for bail and suspension of sentence pending appeal is maintainable as an integral part of the appeal under Section 389 of the Code. The Appellate Court may grant bail even without going into the merits of the case under this section. It also has inherent power to order stay of realization of fine, if any, under this section.
It must, however, be stated that though the Appellate Court has been given the power to suspend the sentence of the accused person or its execution but it does not have power to suspend conviction under this section except in very exceptional cases.
The conviction of the accused person pending appeal cannot be suspended by the Appellate Court even under Section 482 of the Code or under any other provision of the Code. In fact there is no provision under any law for suspension of the conviction pending an appeal.
Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!
Article shared by Sanju Gangaraddi
Legal Provisions of Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Suspension of Sentence Pending the Appeal; Release of Appellant on Bail:
Under this section, the appellate Court can exercise power to grant bail to a convicted person pending his appeal. The Appellate Court can also order suspension of sentence of the convicted person if in confinement.
ADVERTISEMENTS:
The High Court of Madhya Pradesh in Gopal v. State of M.P., has emphatically stressed that ADVERTISEMENTS:
Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!
Article shared by Sanju Gangaraddi
Legal Provisions of Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Suspension of Sentence Pending the Appeal; Release of Appellant on Bail:
Under this section, the appellate Court can exercise power to grant bail to a convicted person pending his appeal. The Appellate Court can also order suspension of sentence of the convicted person if in confinement.
ADVERTISEMENTS:
The High Court of Madhya Pradesh in Gopal v. State of M.P., has emphatically stressed that an application for bail and suspension of sentence pending appeal is maintainable as an integral part of the appeal under Section 389 of the Code. The Appellate Court may grant bail even without going into the merits of the case under this section. It also has inherent power to order stay of realization of fine, if any, under this section.
It must, however, be stated that though the Appellate Court has been given the power to suspend the sentence of the accused person or its execution but it does not have power to suspend conviction under this section except in very exceptional cases.
The conviction of the accused person pending appeal cannot be suspended by the Appellate Court even under Section 482 of the Code or under any other provision of the Code. In fact there is no provision under any law for suspension of the conviction pending an appeal.
ADVERTISEMENTS:
It, therefore, follows that since the order of conviction remains in existence, the disqualification due to conviction continues to remain in operation. The High Court, also has the power under Section 482 of Cr.P.C. to cancel the order of suspension of sentence (and not the conviction) and grant of bail to the appellant made under Section 389 (1) and order his re-arrest and committal to custody in jail.
In State of Punjab v. Deepak Mattu the Special Judge, Fatehgarh Saheb, Punjab ordered suspension of conviction of the accused pending appeal on the ground of possible delay in the disposal of appeal and existence of arguable points. In appeal against this order of suspension of conviction, the High Court vacated the stay of conviction granted to the accused holding that the grounds stated by the Special Judge were not by themselves sufficient enough to grant suspension of conviction.
The High Court reiterated that suspension of conviction could be allowed in a very exceptional case and specifically stated that suspension could not be extended for offences under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988. This not being an exceptional case, there was no reason to stay the conviction by vacation of the order dated 11th January, 2005 or to review the same under Section 389, Cr. P.C.
Summarising the legal position in regard to application of provisions of Section 389, the Supreme Court in this appeal observed that “though the power to suspend an order of conviction apart from the order of suspension of sentence, is not alien to Section 389 (1) of Cr. P.C., the exercise of it should be limited to very exceptional cases. Merely because a convicted person files appeal challenging his conviction, the Court should not suspend conviction. The Court has a duty to look at all aspects including ramifications of keeping such conviction in abeyance.” The Court further held that the High Court has inherent powers to modify its own interlocutory order when matter is yet to be finally disposed of. Therefore, High Court’s order declining to recall its own judgment was liable to be set aside.
ADVERTISEMENTS:
Reiterating the need for granting bail or suspension of sentence under Section 389, the Supreme Court in Bhagwan Rama Shinde v. State of Gujarat, inter-alia, observed that so long as the Appellate Court is not in a position to hear the appeal of the accused expeditiously, ordinarily he should be released on bail unless there are cogent grounds for refusing bail. The reason being that in the event the accused is ultimately found to be innocent, he would have not to remain in jail for unduly long time.
It must, however, be stated that an order of release of the convicted person (appellant) on bail under this section does not set aside his sentence, but it is merely suspended and as such, the appellant remains a convict for all the practical purposes. The Appellate Court has to record reasons in writing for the suspension of the sentence of the appellant.
The power of the High Court to suspend the sentence of the appellant under Section 389 (1) during the pendency of the appeal has also been maintained under the N.D.P.S. Act, 1985 as Section 36-B of the Act empowers the High Court to exercise similar power subject to the limitations laid down under Section 37 of that Act.
The power to release the appellant on bail is not restricted to the Appellate Court but sub-section (3) extends similar power to the Court which passed the sentence so as to enable the convicted person to present an appeal. But the power can be exercised by the Court only in bailable offences, and where the accused person is sentenced to less than three years’ imprisonment.
The Supreme Court in Kishorilal v. Rupa, held that mere fact that during the trial, accused were granted bail and there was no allegation of misuse of liberty, is not of much significance. The effect of bail granted during trial loses 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 liberty, 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 Apex Court held that in the instant case, the High Court does not seem to have kept the correct principle in view.
The Supreme Court in Mayuram Subramanian Srinivasan v. CBI made it clear that sub-section (3) of Section 389, Cr. P.C. empowers the trial Court to release a convicted person on bail for such period as will afford him sufficient time to present an appeal and obtain orders of the Appellate Court under sub-section (1), namely, release on bail, and it is only for such period that the sentence of imprisonment shall be deemed to be suspended. The provisions of Section 389 of Cr. P.C. and that of the Supreme Court Rules, 1966, are independent provisions.
In this case it was argued that statutory provision of Section 389 (3) has an overriding effect over the Supreme Court Rules and, therefore, once bail has been granted to a convicted person by the trial Court. The Apex Court cannot insist that he should surrender to the sentence under Rule 13-A before his appeal can be registered. The Supreme Court negative this contention and held that both these provisions, i.e., Section 389 (3) and Rule 13-A of the Supreme Court Rules, 1966 being independent provisions they will have to be considered on their own merits.
In the case of Bhuvneshwar Yadav v. State of Bihar the question of grant of bail pending appeal against conviction for murder was involved for adjudication before the Court. Appellant’s earlier application for release on bail pending appeal was rejected with liberty to renew the prayer after six months.
The grant of bail to him on subsequent application mere because of liberty given to the appellant to apply again after six months was held to be improper. The Supreme Court opined that grant of liberty to renew the prayer for bail after six months did not in any way show that there was entitlement for release on bail.
In the case of Navjot Siddhu v. State of Punjab the appellant was a sitting Member of Parliament. He was convicted for offence committed much prior to his entry into politics. Appellant had resigned from Membership of Parliament immediately. He did not take benefit of clinging on to his office by merely filing appeal. He was desirous a getting fresh mandate from people.
The Court observed that conviction of the appellant was liable to be suspended as he had chosen a moral path and set high standards of public life and if his conviction was not suspended, he would suffer irreparable damages. The grant of stay of conviction is recommended in view of the special circumstances and facts of the case.
Sub-section (4) makes it clear that when an appeal of the appellant fails, the time during which he remained released on bail under Section 389, should be excluded while computing the term for which he is sentenced to imprisonment.
The Supreme Court in its decision in B. Subhaiah v. State of Karnataka, has held that while considering the application for suspension of sentence of the appellants who are Government servants convicted for serious offences under Sections 218, 392 and 466 I.P.C., the Appellate Court must take into account the moral lapses of the convicts using its discretion in the interest of justice.
In C. B. I., New Delhi v. M. N. Sharma, the respondent was convicted for the offence of corruption. He filed an appeal against his conviction which was pending. The Appellate Court suspended his conviction without recording any reasons. The Supreme Court held that such an order was liable to be set aside.
In Suzanne Louise Martin v. State of Rajasthan, appellant the owner of guest house was convicted for rape on foreign journalist and sentenced to life imprisonment. The victim was emotionally, mentally and physically wrecked by the incident. Under the circumstances, the order suspending the sentence and granting bail to the appellant was totally unjustified; hence the Supreme Court quashed the order.
an application for bail and suspension of sentence pending appeal is maintainable as an integral part of the appeal under Section 389 of the Code. The Appellate Court may grant bail even without going into the merits of the case under this section. It also has inherent power to order stay of realization of fine, if any, under this section.
It must, however, be stated that though the Appellate Court has been given the power to suspend the sentence of the accused person or its execution but it does not have power to suspend conviction under this section except in very exceptional cases.
The conviction of the accused person pending appeal cannot be suspended by the Appellate Court even under Section 482 of the Code or under any other provision of the Code. In fact there is no provision under any law for suspension of the conviction pending an appeal.
Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!
Article shared by Sanju Gangaraddi
Legal Provisions of Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Suspension of Sentence Pending the Appeal; Release of Appellant on Bail:
Under this section, the appellate Court can exercise power to grant bail to a convicted person pending his appeal. The Appellate Court can also order suspension of sentence of the convicted person if in confinement.
ADVERTISEMENTS:
The High Court of Madhya Pradesh in Gopal v. State of M.P., has emphatically stressed that ADVERTISEMENTS:
Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!
Article shared by Sanju Gangaraddi
Legal Provisions of Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Suspension of Sentence Pending the Appeal; Release of Appellant on Bail:
Under this section, the appellate Court can exercise power to grant bail to a convicted person pending his appeal. The Appellate Court can also order suspension of sentence of the convicted person if in confinement.
ADVERTISEMENTS:
The High Court of Madhya Pradesh in Gopal v. State of M.P., has emphatically stressed that an application for bail and suspension of sentence pending appeal is maintainable as an integral part of the appeal under Section 389 of the Code. The Appellate Court may grant bail even without going into the merits of the case under this section. It also has inherent power to order stay of realization of fine, if any, under this section.
It must, however, be stated that though the Appellate Court has been given the power to suspend the sentence of the accused person or its execution but it does not have power to suspend conviction under this section except in very exceptional cases.
The conviction of the accused person pending appeal cannot be suspended by the Appellate Court even under Section 482 of the Code or under any other provision of the Code. In fact there is no provision under any law for suspension of the conviction pending an appeal.
ADVERTISEMENTS:
It, therefore, follows that since the order of conviction remains in existence, the disqualification due to conviction continues to remain in operation. The High Court, also has the power under Section 482 of Cr.P.C. to cancel the order of suspension of sentence (and not the conviction) and grant of bail to the appellant made under Section 389 (1) and order his re-arrest and committal to custody in jail.
In State of Punjab v. Deepak Mattu the Special Judge, Fatehgarh Saheb, Punjab ordered suspension of conviction of the accused pending appeal on the ground of possible delay in the disposal of appeal and existence of arguable points. In appeal against this order of suspension of conviction, the High Court vacated the stay of conviction granted to the accused holding that the grounds stated by the Special Judge were not by themselves sufficient enough to grant suspension of conviction.
The High Court reiterated that suspension of conviction could be allowed in a very exceptional case and specifically stated that suspension could not be extended for offences under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988. This not being an exceptional case, there was no reason to stay the conviction by vacation of the order dated 11th January, 2005 or to review the same under Section 389, Cr. P.C.
Summarising the legal position in regard to application of provisions of Section 389, the Supreme Court in this appeal observed that “though the power to suspend an order of conviction apart from the order of suspension of sentence, is not alien to Section 389 (1) of Cr. P.C., the exercise of it should be limited to very exceptional cases. Merely because a convicted person files appeal challenging his conviction, the Court should not suspend conviction. The Court has a duty to look at all aspects including ramifications of keeping such conviction in abeyance.” The Court further held that the High Court has inherent powers to modify its own interlocutory order when matter is yet to be finally disposed of. Therefore, High Court’s order declining to recall its own judgment was liable to be set aside.
ADVERTISEMENTS:
Reiterating the need for granting bail or suspension of sentence under Section 389, the Supreme Court in Bhagwan Rama Shinde v. State of Gujarat, inter-alia, observed that so long as the Appellate Court is not in a position to hear the appeal of the accused expeditiously, ordinarily he should be released on bail unless there are cogent grounds for refusing bail. The reason being that in the event the accused is ultimately found to be innocent, he would have not to remain in jail for unduly long time.
It must, however, be stated that an order of release of the convicted person (appellant) on bail under this section does not set aside his sentence, but it is merely suspended and as such, the appellant remains a convict for all the practical purposes. The Appellate Court has to record reasons in writing for the suspension of the sentence of the appellant.
The power of the High Court to suspend the sentence of the appellant under Section 389 (1) during the pendency of the appeal has also been maintained under the N.D.P.S. Act, 1985 as Section 36-B of the Act empowers the High Court to exercise similar power subject to the limitations laid down under Section 37 of that Act.
The power to release the appellant on bail is not restricted to the Appellate Court but sub-section (3) extends similar power to the Court which passed the sentence so as to enable the convicted person to present an appeal. But the power can be exercised by the Court only in bailable offences, and where the accused person is sentenced to less than three years’ imprisonment.
The Supreme Court in Kishorilal v. Rupa, held that mere fact that during the trial, accused were granted bail and there was no allegation of misuse of liberty, is not of much significance. The effect of bail granted during trial loses 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 liberty, 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 Apex Court held that in the instant case, the High Court does not seem to have kept the correct principle in view.
The Supreme Court in Mayuram Subramanian Srinivasan v. CBI made it clear that sub-section (3) of Section 389, Cr. P.C. empowers the trial Court to release a convicted person on bail for such period as will afford him sufficient time to present an appeal and obtain orders of the Appellate Court under sub-section (1), namely, release on bail, and it is only for such period that the sentence of imprisonment shall be deemed to be suspended. The provisions of Section 389 of Cr. P.C. and that of the Supreme Court Rules, 1966, are independent provisions.
In this case it was argued that statutory provision of Section 389 (3) has an overriding effect over the Supreme Court Rules and, therefore, once bail has been granted to a convicted person by the trial Court. The Apex Court cannot insist that he should surrender to the sentence under Rule 13-A before his appeal can be registered. The Supreme Court negative this contention and held that both these provisions, i.e., Section 389 (3) and Rule 13-A of the Supreme Court Rules, 1966 being independent provisions they will have to be considered on their own merits.
In the case of Bhuvneshwar Yadav v. State of Bihar the question of grant of bail pending appeal against conviction for murder was involved for adjudication before the Court. Appellant’s earlier application for release on bail pending appeal was rejected with liberty to renew the prayer after six months.
The grant of bail to him on subsequent application mere because of liberty given to the appellant to apply again after six months was held to be improper. The Supreme Court opined that grant of liberty to renew the prayer for bail after six months did not in any way show that there was entitlement for release on bail.
In the case of Navjot Siddhu v. State of Punjab the appellant was a sitting Member of Parliament. He was convicted for offence committed much prior to his entry into politics. Appellant had resigned from Membership of Parliament immediately. He did not take benefit of clinging on to his office by merely filing appeal. He was desirous a getting fresh mandate from people.
The Court observed that conviction of the appellant was liable to be suspended as he had chosen a moral path and set high standards of public life and if his conviction was not suspended, he would suffer irreparable damages. The grant of stay of conviction is recommended in view of the special circumstances and facts of the case.
Sub-section (4) makes it clear that when an appeal of the appellant fails, the time during which he remained released on bail under Section 389, should be excluded while computing the term for which he is sentenced to imprisonment.
The Supreme Court in its decision in B. Subhaiah v. State of Karnataka, has held that while considering the application for suspension of sentence of the appellants who are Government servants convicted for serious offences under Sections 218, 392 and 466 I.P.C., the Appellate Court must take into account the moral lapses of the convicts using its discretion in the interest of justice.
In C. B. I., New Delhi v. M. N. Sharma, the respondent was convicted for the offence of corruption. He filed an appeal against his conviction which was pending. The Appellate Court suspended his conviction without recording any reasons. The Supreme Court held that such an order was liable to be set aside.
In Suzanne Louise Martin v. State of Rajasthan, appellant the owner of guest house was convicted for rape on foreign journalist and sentenced to life imprisonment. The victim was emotionally, mentally and physically wrecked by the incident. Under the circumstances, the order suspending the sentence and granting bail to the appellant was totally unjustified; hence the Supreme Court quashed the order.
an application for bail and suspension of sentence pending appeal is maintainable as an integral part of the appeal under Section 389 of the Code. The Appellate Court may grant bail even without going into the merits of the case under this section. It also has inherent power to order stay of realization of fine, if any, under this section.
It must, however, be stated that though the Appellate Court has been given the power to suspend the sentence of the accused person or its execution but it does not have power to suspend conviction under this section except in very exceptional cases.
The conviction of the accused person pending appeal cannot be suspended by the Appellate Court even under Section 482 of the Code or under any other provision of the Code. In fact there is no provision under any law for suspension of the conviction pending an appeal.
Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!
Article shared by Sanju Gangaraddi
Legal Provisions of Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Suspension of Sentence Pending the Appeal; Release of Appellant on Bail:
Under this section, the appellate Court can exercise power to grant bail to a convicted person pending his appeal. The Appellate Court can also order suspension of sentence of the convicted person if in confinement.
ADVERTISEMENTS:
The High Court of Madhya Pradesh in Gopal v. State of M.P., has emphatically stressed that ADVERTISEMENTS:
Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!
Article shared by Sanju Gangaraddi
Legal Provisions of Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Suspension of Sentence Pending the Appeal; Release of Appellant on Bail:
Under this section, the appellate Court can exercise power to grant bail to a convicted person pending his appeal. The Appellate Court can also order suspension of sentence of the convicted person if in confinement.
ADVERTISEMENTS:
The High Court of Madhya Pradesh in Gopal v. State of M.P., has emphatically stressed that an application for bail and suspension of sentence pending appeal is maintainable as an integral part of the appeal under Section 389 of the Code. The Appellate Court may grant bail even without going into the merits of the case under this section. It also has inherent power to order stay of realization of fine, if any, under this section.
It must, however, be stated that though the Appellate Court has been given the power to suspend the sentence of the accused person or its execution but it does not have power to suspend conviction under this section except in very exceptional cases.
The conviction of the accused person pending appeal cannot be suspended by the Appellate Court even under Section 482 of the Code or under any other provision of the Code. In fact there is no provision under any law for suspension of the conviction pending an appeal.
ADVERTISEMENTS:
It, therefore, follows that since the order of conviction remains in existence, the disqualification due to conviction continues to remain in operation. The High Court, also has the power under Section 482 of Cr.P.C. to cancel the order of suspension of sentence (and not the conviction) and grant of bail to the appellant made under Section 389 (1) and order his re-arrest and committal to custody in jail.
In State of Punjab v. Deepak Mattu the Special Judge, Fatehgarh Saheb, Punjab ordered suspension of conviction of the accused pending appeal on the ground of possible delay in the disposal of appeal and existence of arguable points. In appeal against this order of suspension of conviction, the High Court vacated the stay of conviction granted to the accused holding that the grounds stated by the Special Judge were not by themselves sufficient enough to grant suspension of conviction.
The High Court reiterated that suspension of conviction could be allowed in a very exceptional case and specifically stated that suspension could not be extended for offences under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988. This not being an exceptional case, there was no reason to stay the conviction by vacation of the order dated 11th January, 2005 or to review the same under Section 389, Cr. P.C.
Summarising the legal position in regard to application of provisions of Section 389, the Supreme Court in this appeal observed that “though the power to suspend an order of conviction apart from the order of suspension of sentence, is not alien to Section 389 (1) of Cr. P.C., the exercise of it should be limited to very exceptional cases. Merely because a convicted person files appeal challenging his conviction, the Court should not suspend conviction. The Court has a duty to look at all aspects including ramifications of keeping such conviction in abeyance.” The Court further held that the High Court has inherent powers to modify its own interlocutory order when matter is yet to be finally disposed of. Therefore, High Court’s order declining to recall its own judgment was liable to be set aside.
ADVERTISEMENTS:
Reiterating the need for granting bail or suspension of sentence under Section 389, the Supreme Court in Bhagwan Rama Shinde v. State of Gujarat, inter-alia, observed that so long as the Appellate Court is not in a position to hear the appeal of the accused expeditiously, ordinarily he should be released on bail unless there are cogent grounds for refusing bail. The reason being that in the event the accused is ultimately found to be innocent, he would have not to remain in jail for unduly long time.
It must, however, be stated that an order of release of the convicted person (appellant) on bail under this section does not set aside his sentence, but it is merely suspended and as such, the appellant remains a convict for all the practical purposes. The Appellate Court has to record reasons in writing for the suspension of the sentence of the appellant.
The power of the High Court to suspend the sentence of the appellant under Section 389 (1) during the pendency of the appeal has also been maintained under the N.D.P.S. Act, 1985 as Section 36-B of the Act empowers the High Court to exercise similar power subject to the limitations laid down under Section 37 of that Act.
The power to release the appellant on bail is not restricted to the Appellate Court but sub-section (3) extends similar power to the Court which passed the sentence so as to enable the convicted person to present an appeal. But the power can be exercised by the Court only in bailable offences, and where the accused person is sentenced to less than three years’ imprisonment.
The Supreme Court in Kishorilal v. Rupa, held that mere fact that during the trial, accused were granted bail and there was no allegation of misuse of liberty, is not of much significance. The effect of bail granted during trial loses 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 liberty, 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 Apex Court held that in the instant case, the High Court does not seem to have kept the correct principle in view.
The Supreme Court in Mayuram Subramanian Srinivasan v. CBI made it clear that sub-section (3) of Section 389, Cr. P.C. empowers the trial Court to release a convicted person on bail for such period as will afford him sufficient time to present an appeal and obtain orders of the Appellate Court under sub-section (1), namely, release on bail, and it is only for such period that the sentence of imprisonment shall be deemed to be suspended. The provisions of Section 389 of Cr. P.C. and that of the Supreme Court Rules, 1966, are independent provisions.
In this case it was argued that statutory provision of Section 389 (3) has an overriding effect over the Supreme Court Rules and, therefore, once bail has been granted to a convicted person by the trial Court. The Apex Court cannot insist that he should surrender to the sentence under Rule 13-A before his appeal can be registered. The Supreme Court negative this contention and held that both these provisions, i.e., Section 389 (3) and Rule 13-A of the Supreme Court Rules, 1966 being independent provisions they will have to be considered on their own merits.
In the case of Bhuvneshwar Yadav v. State of Bihar the question of grant of bail pending appeal against conviction for murder was involved for adjudication before the Court. Appellant’s earlier application for release on bail pending appeal was rejected with liberty to renew the prayer after six months.
The grant of bail to him on subsequent application mere because of liberty given to the appellant to apply again after six months was held to be improper. The Supreme Court opined that grant of liberty to renew the prayer for bail after six months did not in any way show that there was entitlement for release on bail.
In the case of Navjot Siddhu v. State of Punjab the appellant was a sitting Member of Parliament. He was convicted for offence committed much prior to his entry into politics. Appellant had resigned from Membership of Parliament immediately. He did not take benefit of clinging on to his office by merely filing appeal. He was desirous a getting fresh mandate from people.
The Court observed that conviction of the appellant was liable to be suspended as he had chosen a moral path and set high standards of public life and if his conviction was not suspended, he would suffer irreparable damages. The grant of stay of conviction is recommended in view of the special circumstances and facts of the case.
Sub-section (4) makes it clear that when an appeal of the appellant fails, the time during which he remained released on bail under Section 389, should be excluded while computing the term for which he is sentenced to imprisonment.
The Supreme Court in its decision in B. Subhaiah v. State of Karnataka, has held that while considering the application for suspension of sentence of the appellants who are Government servants convicted for serious offences under Sections 218, 392 and 466 I.P.C., the Appellate Court must take into account the moral lapses of the convicts using its discretion in the interest of justice.
In C. B. I., New Delhi v. M. N. Sharma, the respondent was convicted for the offence of corruption. He filed an appeal against his conviction which was pending. The Appellate Court suspended his conviction without recording any reasons. The Supreme Court held that such an order was liable to be set aside.
In Suzanne Louise Martin v. State of Rajasthan, appellant the owner of guest house was convicted for rape on foreign journalist and sentenced to life imprisonment. The victim was emotionally, mentally and physically wrecked by the incident. Under the circumstances, the order suspending the sentence and granting bail to the appellant was totally unjustified; hence the Supreme Court quashed the order.
an application for bail and suspension of sentence pending appeal is maintainable as an integral part of the appeal under Section 389 of the Code. The Appellate Court may grant bail even without going into the merits of the case under this section. It also has inherent power to order stay of realization of fine, if any, under this section.
It must, however, be stated that though the Appellate Court has been given the power to suspend the sentence of the accused person or its execution but it does not have power to suspend conviction under this section except in very exceptional cases.
The conviction of the accused person pending appeal cannot be suspended by the Appellate Court even under Section 482 of the Code or under any other provision of the Code. In fact there is no provision under any law for suspension of the conviction pending an appeal.
Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!
Article shared by Sanju Gangaraddi
Legal Provisions of Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Suspension of Sentence Pending the Appeal; Release of Appellant on Bail:
Under this section, the appellate Court can exercise power to grant bail to a convicted person pending his appeal. The Appellate Court can also order suspension of sentence of the convicted person if in confinement.
ADVERTISEMENTS:
The High Court of Madhya Pradesh in Gopal v. State of M.P., has emphatically stressed that ADVERTISEMENTS:
Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!
Article shared by Sanju Gangaraddi
Legal Provisions of Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Suspension of Sentence Pending the Appeal; Release of Appellant on Bail:
Under this section, the appellate Court can exercise power to grant bail to a convicted person pending his appeal. The Appellate Court can also order suspension of sentence of the convicted person if in confinement.
ADVERTISEMENTS:
The High Court of Madhya Pradesh in Gopal v. State of M.P., has emphatically stressed that an application for bail and suspension of sentence pending appeal is maintainable as an integral part of the appeal under Section 389 of the Code. The Appellate Court may grant bail even without going into the merits of the case under this section. It also has inherent power to order stay of realization of fine, if any, under this section.
It must, however, be stated that though the Appellate Court has been given the power to suspend the sentence of the accused person or its execution but it does not have power to suspend conviction under this section except in very exceptional cases.
The conviction of the accused person pending appeal cannot be suspended by the Appellate Court even under Section 482 of the Code or under any other provision of the Code. In fact there is no provision under any law for suspension of the conviction pending an appeal.
ADVERTISEMENTS:
It, therefore, follows that since the order of conviction remains in existence, the disqualification due to conviction continues to remain in operation. The High Court, also has the power under Section 482 of Cr.P.C. to cancel the order of suspension of sentence (and not the conviction) and grant of bail to the appellant made under Section 389 (1) and order his re-arrest and committal to custody in jail.
In State of Punjab v. Deepak Mattu the Special Judge, Fatehgarh Saheb, Punjab ordered suspension of conviction of the accused pending appeal on the ground of possible delay in the disposal of appeal and existence of arguable points. In appeal against this order of suspension of conviction, the High Court vacated the stay of conviction granted to the accused holding that the grounds stated by the Special Judge were not by themselves sufficient enough to grant suspension of conviction.
The High Court reiterated that suspension of conviction could be allowed in a very exceptional case and specifically stated that suspension could not be extended for offences under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988. This not being an exceptional case, there was no reason to stay the conviction by vacation of the order dated 11th January, 2005 or to review the same under Section 389, Cr. P.C.
Summarising the legal position in regard to application of provisions of Section 389, the Supreme Court in this appeal observed that “though the power to suspend an order of conviction apart from the order of suspension of sentence, is not alien to Section 389 (1) of Cr. P.C., the exercise of it should be limited to very exceptional cases. Merely because a convicted person files appeal challenging his conviction, the Court should not suspend conviction. The Court has a duty to look at all aspects including ramifications of keeping such conviction in abeyance.” The Court further held that the High Court has inherent powers to modify its own interlocutory order when matter is yet to be finally disposed of. Therefore, High Court’s order declining to recall its own judgment was liable to be set aside.
ADVERTISEMENTS:
Reiterating the need for granting bail or suspension of sentence under Section 389, the Supreme Court in Bhagwan Rama Shinde v. State of Gujarat, inter-alia, observed that so long as the Appellate Court is not in a position to hear the appeal of the accused expeditiously, ordinarily he should be released on bail unless there are cogent grounds for refusing bail. The reason being that in the event the accused is ultimately found to be innocent, he would have not to remain in jail for unduly long time.
It must, however, be stated that an order of release of the convicted person (appellant) on bail under this section does not set aside his sentence, but it is merely suspended and as such, the appellant remains a convict for all the practical purposes. The Appellate Court has to record reasons in writing for the suspension of the sentence of the appellant.
The power of the High Court to suspend the sentence of the appellant under Section 389 (1) during the pendency of the appeal has also been maintained under the N.D.P.S. Act, 1985 as Section 36-B of the Act empowers the High Court to exercise similar power subject to the limitations laid down under Section 37 of that Act.
The power to release the appellant on bail is not restricted to the Appellate Court but sub-section (3) extends similar power to the Court which passed the sentence so as to enable the convicted person to present an appeal. But the power can be exercised by the Court only in bailable offences, and where the accused person is sentenced to less than three years’ imprisonment.
The Supreme Court in Kishorilal v. Rupa, held that mere fact that during the trial, accused were granted bail and there was no allegation of misuse of liberty, is not of much significance. The effect of bail granted during trial loses 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 liberty, 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 Apex Court held that in the instant case, the High Court does not seem to have kept the correct principle in view.
The Supreme Court in Mayuram Subramanian Srinivasan v. CBI made it clear that sub-section (3) of Section 389, Cr. P.C. empowers the trial Court to release a convicted person on bail for such period as will afford him sufficient time to present an appeal and obtain orders of the Appellate Court under sub-section (1), namely, release on bail, and it is only for such period that the sentence of imprisonment shall be deemed to be suspended. The provisions of Section 389 of Cr. P.C. and that of the Supreme Court Rules, 1966, are independent provisions.
In this case it was argued that statutory provision of Section 389 (3) has an overriding effect over the Supreme Court Rules and, therefore, once bail has been granted to a convicted person by the trial Court. The Apex Court cannot insist that he should surrender to the sentence under Rule 13-A before his appeal can be registered. The Supreme Court negative this contention and held that both these provisions, i.e., Section 389 (3) and Rule 13-A of the Supreme Court Rules, 1966 being independent provisions they will have to be considered on their own merits.
In the case of Bhuvneshwar Yadav v. State of Bihar the question of grant of bail pending appeal against conviction for murder was involved for adjudication before the Court. Appellant’s earlier application for release on bail pending appeal was rejected with liberty to renew the prayer after six months.
The grant of bail to him on subsequent application mere because of liberty given to the appellant to apply again after six months was held to be improper. The Supreme Court opined that grant of liberty to renew the prayer for bail after six months did not in any way show that there was entitlement for release on bail.
In the case of Navjot Siddhu v. State of Punjab the appellant was a sitting Member of Parliament. He was convicted for offence committed much prior to his entry into politics. Appellant had resigned from Membership of Parliament immediately. He did not take benefit of clinging on to his office by merely filing appeal. He was desirous a getting fresh mandate from people.
The Court observed that conviction of the appellant was liable to be suspended as he had chosen a moral path and set high standards of public life and if his conviction was not suspended, he would suffer irreparable damages. The grant of stay of conviction is recommended in view of the special circumstances and facts of the case.
Sub-section (4) makes it clear that when an appeal of the appellant fails, the time during which he remained released on bail under Section 389, should be excluded while computing the term for which he is sentenced to imprisonment.
The Supreme Court in its decision in B. Subhaiah v. State of Karnataka, has held that while considering the application for suspension of sentence of the appellants who are Government servants convicted for serious offences under Sections 218, 392 and 466 I.P.C., the Appellate Court must take into account the moral lapses of the convicts using its discretion in the interest of justice.
In C. B. I., New Delhi v. M. N. Sharma, the respondent was convicted for the offence of corruption. He filed an appeal against his conviction which was pending. The Appellate Court suspended his conviction without recording any reasons. The Supreme Court held that such an order was liable to be set aside.
In Suzanne Louise Martin v. State of Rajasthan, appellant the owner of guest house was convicted for rape on foreign journalist and sentenced to life imprisonment. The victim was emotionally, mentally and physically wrecked by the incident. Under the circumstances, the order suspending the sentence and granting bail to the appellant was totally unjustified; hence the Supreme Court quashed the order.
an application for bail and suspension of sentence pending appeal is maintainable as an integral part of the appeal under Section 389 of the Code. The Appellate Court may grant bail even without going into the merits of the case under this section. It also has inherent power to order stay of realization of fine, if any, under this section.
It must, however, be stated that though the Appellate Court has been given the power to suspend the sentence of the accused person or its execution but it does not have power to suspend conviction under this section except in very exceptional cases.
The conviction of the accused person pending appeal cannot be suspended by the Appellate Court even under Section 482 of the Code or under any other provision of the Code. In fact there is no provision under any law for suspension of the conviction pending an appeal.
Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!
Article shared by Sanju Gangaraddi
Legal Provisions of Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Suspension of Sentence Pending the Appeal; Release of Appellant on Bail:
Under this section, the appellate Court can exercise power to grant bail to a convicted person pending his appeal. The Appellate Court can also order suspension of sentence of the convicted person if in confinement.
ADVERTISEMENTS:
The High Court of Madhya Pradesh in Gopal v. State of M.P., has emphatically stressed that ADVERTISEMENTS:
Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!
Article shared by Sanju Gangaraddi
Legal Provisions of Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Suspension of Sentence Pending the Appeal; Release of Appellant on Bail:
Under this section, the appellate Court can exercise power to grant bail to a convicted person pending his appeal. The Appellate Court can also order suspension of sentence of the convicted person if in confinement.
ADVERTISEMENTS:
The High Court of Madhya Pradesh in Gopal v. State of M.P., has emphatically stressed that an application for bail and suspension of sentence pending appeal is maintainable as an integral part of the appeal under Section 389 of the Code. The Appellate Court may grant bail even without going into the merits of the case under this section. It also has inherent power to order stay of realization of fine, if any, under this section.
It must, however, be stated that though the Appellate Court has been given the power to suspend the sentence of the accused person or its execution but it does not have power to suspend conviction under this section except in very exceptional cases.
The conviction of the accused person pending appeal cannot be suspended by the Appellate Court even under Section 482 of the Code or under any other provision of the Code. In fact there is no provision under any law for suspension of the conviction pending an appeal.
ADVERTISEMENTS:
It, therefore, follows that since the order of conviction remains in existence, the disqualification due to conviction continues to remain in operation. The High Court, also has the power under Section 482 of Cr.P.C. to cancel the order of suspension of sentence (and not the conviction) and grant of bail to the appellant made under Section 389 (1) and order his re-arrest and committal to custody in jail.
In State of Punjab v. Deepak Mattu the Special Judge, Fatehgarh Saheb, Punjab ordered suspension of conviction of the accused pending appeal on the ground of possible delay in the disposal of appeal and existence of arguable points. In appeal against this order of suspension of conviction, the High Court vacated the stay of conviction granted to the accused holding that the grounds stated by the Special Judge were not by themselves sufficient enough to grant suspension of conviction.
The High Court reiterated that suspension of conviction could be allowed in a very exceptional case and specifically stated that suspension could not be extended for offences under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988. This not being an exceptional case, there was no reason to stay the conviction by vacation of the order dated 11th January, 2005 or to review the same under Section 389, Cr. P.C.
Summarising the legal position in regard to application of provisions of Section 389, the Supreme Court in this appeal observed that “though the power to suspend an order of conviction apart from the order of suspension of sentence, is not alien to Section 389 (1) of Cr. P.C., the exercise of it should be limited to very exceptional cases. Merely because a convicted person files appeal challenging his conviction, the Court should not suspend conviction. The Court has a duty to look at all aspects including ramifications of keeping such conviction in abeyance.” The Court further held that the High Court has inherent powers to modify its own interlocutory order when matter is yet to be finally disposed of. Therefore, High Court’s order declining to recall its own judgment was liable to be set aside.
ADVERTISEMENTS:
Reiterating the need for granting bail or suspension of sentence under Section 389, the Supreme Court in Bhagwan Rama Shinde v. State of Gujarat, inter-alia, observed that so long as the Appellate Court is not in a position to hear the appeal of the accused expeditiously, ordinarily he should be released on bail unless there are cogent grounds for refusing bail. The reason being that in the event the accused is ultimately found to be innocent, he would have not to remain in jail for unduly long time.
It must, however, be stated that an order of release of the convicted person (appellant) on bail under this section does not set aside his sentence, but it is merely suspended and as such, the appellant remains a convict for all the practical purposes. The Appellate Court has to record reasons in writing for the suspension of the sentence of the appellant.
The power of the High Court to suspend the sentence of the appellant under Section 389 (1) during the pendency of the appeal has also been maintained under the N.D.P.S. Act, 1985 as Section 36-B of the Act empowers the High Court to exercise similar power subject to the limitations laid down under Section 37 of that Act.
The power to release the appellant on bail is not restricted to the Appellate Court but sub-section (3) extends similar power to the Court which passed the sentence so as to enable the convicted person to present an appeal. But the power can be exercised by the Court only in bailable offences, and where the accused person is sentenced to less than three years’ imprisonment.
The Supreme Court in Kishorilal v. Rupa, held that mere fact that during the trial, accused were granted bail and there was no allegation of misuse of liberty, is not of much significance. The effect of bail granted during trial loses 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 liberty, 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 Apex Court held that in the instant case, the High Court does not seem to have kept the correct principle in view.
The Supreme Court in Mayuram Subramanian Srinivasan v. CBI made it clear that sub-section (3) of Section 389, Cr. P.C. empowers the trial Court to release a convicted person on bail for such period as will afford him sufficient time to present an appeal and obtain orders of the Appellate Court under sub-section (1), namely, release on bail, and it is only for such period that the sentence of imprisonment shall be deemed to be suspended. The provisions of Section 389 of Cr. P.C. and that of the Supreme Court Rules, 1966, are independent provisions.
In this case it was argued that statutory provision of Section 389 (3) has an overriding effect over the Supreme Court Rules and, therefore, once bail has been granted to a convicted person by the trial Court. The Apex Court cannot insist that he should surrender to the sentence under Rule 13-A before his appeal can be registered. The Supreme Court negative this contention and held that both these provisions, i.e., Section 389 (3) and Rule 13-A of the Supreme Court Rules, 1966 being independent provisions they will have to be considered on their own merits.
In the case of Bhuvneshwar Yadav v. State of Bihar the question of grant of bail pending appeal against conviction for murder was involved for adjudication before the Court. Appellant’s earlier application for release on bail pending appeal was rejected with liberty to renew the prayer after six months.
The grant of bail to him on subsequent application mere because of liberty given to the appellant to apply again after six months was held to be improper. The Supreme Court opined that grant of liberty to renew the prayer for bail after six months did not in any way show that there was entitlement for release on bail.
In the case of Navjot Siddhu v. State of Punjab the appellant was a sitting Member of Parliament. He was convicted for offence committed much prior to his entry into politics. Appellant had resigned from Membership of Parliament immediately. He did not take benefit of clinging on to his office by merely filing appeal. He was desirous a getting fresh mandate from people.
The Court observed that conviction of the appellant was liable to be suspended as he had chosen a moral path and set high standards of public life and if his conviction was not suspended, he would suffer irreparable damages. The grant of stay of conviction is recommended in view of the special circumstances and facts of the case.
Sub-section (4) makes it clear that when an appeal of the appellant fails, the time during which he remained released on bail under Section 389, should be excluded while computing the term for which he is sentenced to imprisonment.
The Supreme Court in its decision in B. Subhaiah v. State of Karnataka, has held that while considering the application for suspension of sentence of the appellants who are Government servants convicted for serious offences under Sections 218, 392 and 466 I.P.C., the Appellate Court must take into account the moral lapses of the convicts using its discretion in the interest of justice.
In C. B. I., New Delhi v. M. N. Sharma, the respondent was convicted for the offence of corruption. He filed an appeal against his conviction which was pending. The Appellate Court suspended his conviction without recording any reasons. The Supreme Court held that such an order was liable to be set aside.
In Suzanne Louise Martin v. State of Rajasthan, appellant the owner of guest house was convicted for rape on foreign journalist and sentenced to life imprisonment. The victim was emotionally, mentally and physically wrecked by the incident. Under the circumstances, the order suspending the sentence and granting bail to the appellant was totally unjustified; hence the Supreme Court quashed the order.
an application for bail and suspension of sentence pending appeal is maintainable as an integral part of the appeal under Section 389 of the Code. The Appellate Court may grant bail even without going into the merits of the case under this section. It also has inherent power to order stay of realization of fine, if any, under this section.
It must, however, be stated that though the Appellate Court has been given the power to suspend the sentence of the accused person or its execution but it does not have power to suspend conviction under this section except in very exceptional cases.
The conviction of the accused person pending appeal cannot be suspended by the Appellate Court even under Section 482 of the Code or under any other provision of the Code. In fact there is no provision under any law for suspension of the conviction pending an appeal.
Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!
Article shared by Sanju Gangaraddi
Legal Provisions of Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Suspension of Sentence Pending the Appeal; Release of Appellant on Bail:
Under this section, the appellate Court can exercise power to grant bail to a convicted person pending his appeal. The Appellate Court can also order suspension of sentence of the convicted person if in confinement.
ADVERTISEMENTS:
The High Court of Madhya Pradesh in Gopal v. State of M.P., has emphatically stressed that ADVERTISEMENTS:
Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.) – Explained!
Article shared by Sanju Gangaraddi
Legal Provisions of Section 389 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Suspension of Sentence Pending the Appeal; Release of Appellant on Bail:
Under this section, the appellate Court can exercise power to grant bail to a convicted person pending his appeal. The Appellate Court can also order suspension of sentence of the convicted person if in confinement.
ADVERTISEMENTS:
The High Court of Madhya Pradesh in Gopal v. State of M.P., has emphatically stressed that an application for bail and suspension of sentence pending appeal is maintainable as an integral part of the appeal under Section 389 of the Code. The Appellate Court may grant bail even without going into the merits of the case under this section. It also has inherent power to order stay of realization of fine, if any, under this section.
It must, however, be stated that though the Appellate Court has been given the power to suspend the sentence of the accused person or its execution but it does not have power to suspend conviction under this section except in very exceptional cases.
The conviction of the accused person pending appeal cannot be suspended by the Appellate Court even under Section 482 of the Code or under any other provision of the Code. In fact there is no provision under any law for suspension of the conviction pending an appeal.
ADVERTISEMENTS:
It, therefore, follows that since the order of conviction remains in existence, the disqualification due to conviction continues to remain in operation. The High Court, also has the power under Section 482 of Cr.P.C. to cancel the order of suspension of sentence (and not the conviction) and grant of bail to the appellant made under Section 389 (1) and order his re-arrest and committal to custody in jail.
In State of Punjab v. Deepak Mattu the Special Judge, Fatehgarh Saheb, Punjab ordered suspension of conviction of the accused pending appeal on the ground of possible delay in the disposal of appeal and existence of arguable points. In appeal against this order of suspension of conviction, the High Court vacated the stay of conviction granted to the accused holding that the grounds stated by the Special Judge were not by themselves sufficient enough to grant suspension of conviction.
The High Court reiterated that suspension of conviction could be allowed in a very exceptional case and specifically stated that suspension could not be extended for offences under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988. This not being an exceptional case, there was no reason to stay the conviction by vacation of the order dated 11th January, 2005 or to review the same under Section 389, Cr. P.C.
Summarising the legal position in regard to application of provisions of Section 389, the Supreme Court in this appeal observed that “though the power to suspend an order of conviction apart from the order of suspension of sentence, is not alien to Section 389 (1) of Cr. P.C., the exercise of it should be limited to very exceptional cases. Merely because a convicted person files appeal challenging his conviction, the Court should not suspend conviction. The Court has a duty to look at all aspects including ramifications of keeping such conviction in abeyance.” The Court further held that the High Court has inherent powers to modify its own interlocutory order when matter is yet to be finally disposed of. Therefore, High Court’s order declining to recall its own judgment was liable to be set aside.
ADVERTISEMENTS:
Reiterating the need for granting bail or suspension of sentence under Section 389, the Supreme Court in Bhagwan Rama Shinde v. State of Gujarat, inter-alia, observed that so long as the Appellate Court is not in a position to hear the appeal of the accused expeditiously, ordinarily he should be released on bail unless there are cogent grounds for refusing bail. The reason being that in the event the accused is ultimately found to be innocent, he would have not to remain in jail for unduly long time.
It must, however, be stated that an order of release of the convicted person (appellant) on bail under this section does not set aside his sentence, but it is merely suspended and as such, the appellant remains a convict for all the practical purposes. The Appellate Court has to record reasons in writing for the suspension of the sentence of the appellant.
The power of the High Court to suspend the sentence of the appellant under Section 389 (1) during the pendency of the appeal has also been maintained under the N.D.P.S. Act, 1985 as Section 36-B of the Act empowers the High Court to exercise similar power subject to the limitations laid down under Section 37 of that Act.
The power to release the appellant on bail is not restricted to the Appellate Court but sub-section (3) extends similar power to the Court which passed the sentence so as to enable the convicted person to present an appeal. But the power can be exercised by the Court only in bailable offences, and where the accused person is sentenced to less than three years’ imprisonment.
The Supreme Court in Kishorilal v. Rupa, held that mere fact that during the trial, accused were granted bail and there was no allegation of misuse of liberty, is not of much significance. The effect of bail granted during trial loses 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 liberty, 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 Apex Court held that in the instant case, the High Court does not seem to have kept the correct principle in view.
The Supreme Court in Mayuram Subramanian Srinivasan v. CBI made it clear that sub-section (3) of Section 389, Cr. P.C. empowers the trial Court to release a convicted person on bail for such period as will afford him sufficient time to present an appeal and obtain orders of the Appellate Court under sub-section (1), namely, release on bail, and it is only for such period that the sentence of imprisonment shall be deemed to be suspended. The provisions of Section 389 of Cr. P.C. and that of the Supreme Court Rules, 1966, are independent provisions.
In this case it was argued that statutory provision of Section 389 (3) has an overriding effect over the Supreme Court Rules and, therefore, once bail has been granted to a convicted person by the trial Court. The Apex Court cannot insist that he should surrender to the sentence under Rule 13-A before his appeal can be registered. The Supreme Court negative this contention and held that both these provisions, i.e., Section 389 (3) and Rule 13-A of the Supreme Court Rules, 1966 being independent provisions they will have to be considered on their own merits.
In the case of Bhuvneshwar Yadav v. State of Bihar the question of grant of bail pending appeal against conviction for murder was involved for adjudication before the Court. Appellant’s earlier application for release on bail pending appeal was rejected with liberty to renew the prayer after six months.
The grant of bail to him on subsequent application mere because of liberty given to the appellant to apply again after six months was held to be improper. The Supreme Court opined that grant of liberty to renew the prayer for bail after six months did not in any way show that there was entitlement for release on bail.
In the case of Navjot Siddhu v. State of Punjab the appellant was a sitting Member of Parliament. He was convicted for offence committed much prior to his entry into politics. Appellant had resigned from Membership of Parliament immediately. He did not take benefit of clinging on to his office by merely filing appeal. He was desirous a getting fresh mandate from people.
The Court observed that conviction of the appellant was liable to be suspended as he had chosen a moral path and set high standards of public life and if his conviction was not suspended, he would suffer irreparable damages. The grant of stay of conviction is recommended in view of the special circumstances and facts of the case.
Sub-section (4) makes it clear that when an appeal of the appellant fails, the time during which he remained released on bail under Section 389, should be excluded while computing the term for which he is sentenced to imprisonment.
The Supreme Court in its decision in B. Subhaiah v. State of Karnataka, has held that while considering the application for suspension of sentence of the appellants who are Government servants convicted for serious offences under Sections 218, 392 and 466 I.P.C., the Appellate Court must take into account the moral lapses of the convicts using its discretion in the interest of justice.
In C. B. I., New Delhi v. M. N. Sharma, the respondent was convicted for the offence of corruption. He filed an appeal against his conviction which was pending. The Appellate Court suspended his conviction without recording any reasons. The Supreme Court held that such an order was liable to be set aside.
In Suzanne Louise Martin v. State of Rajasthan, appellant the owner of guest house was convicted for rape on foreign journalist and sentenced to life imprisonment. The victim was emotionally, mentally and physically wrecked by the incident. Under the circumstances, the order suspending the sentence and granting bail to the appellant was totally unjustified; hence the Supreme Court quashed the order.
an application for bail and suspension of sentence pending appeal is maintainable as an integral part of the appeal under Section 389 of the Code. The Appellate Court may grant bail even without going into the merits of the case under this section. It also has inherent power to order stay of realization of fine, if any, under this section.
It must, however, be stated that though the Appellate Court has been given the power to suspend the sentence of the accused person or its execution but it does not have power to suspend conviction under this section except in very exceptional cases.
The conviction of the accused person pending appeal cannot be suspended by the Appellate Court even under Section 482 of the Code or under any other provision of the Code. In fact there is no provision under any law for suspension of the conviction pending an appeal.
sECTION 432 cR.p.c:
V
Ankit 16 June 2017
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