2025 INSC 944 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.3409/2025

(@SPECIAL LEAVE PETITION (CRL.) NO.11361/2025

AASIF @ PASHA Appellant(s)

VERSUS

THE STATE OF U.P. & ORS. Respondent(s)

O R D E R

1.Leave granted.

2.The impugned Order is one more from the High Court of

Judicature at Allahabad with which we are disappointed.

3.This petition arises from the order passed by the High Court

of Judicature at Allahabad dated 29-5-2025 in Criminal Appeal

No.8689/2024 by which the High Court declined to suspend the

substantive order of sentence passed by the Trial Court.

4.It appears from the materials on record that the appellant was

put to trial in the Court of 2nd Additional Sessions Judge/Special

Judge(POCSO Act), Meerut, Uttar Pradesh in Protection of Children

from Sexual Offences Act (POCSO) Case No.270/2016 for the offence

punishable under Sections 7 & 8 respectively of the POCSO Act,

Sections 354, 354Kha, 323 and 504 respectively of the Indian Penal

Code and Section 3(1)(10) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989.

5.At the end of the trial, the appellant stood convicted.

6.He was sentenced to undergo one year rigorous imprisonment

with fine of Rs.3000/- for the offence punishable under Section 354

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IPC for the offence under Sections 7 and 8 respectively of the

POCSO, he came to be sentenced to undergo 4 years of RI with fine

of Rs.4,000/- and for the offence under the SC/AT Atrocities Act,

he came to be sentenced to undergo 4 years of RI with fine of

Rs.5,000/-. The Trial Court ordered that all the sentences shall

run concurrently.

7.Being dissatisfied with the Judgment and order of conviction

passed by the Trial Court, the appellant went in appeal before the

High Court. His Criminal Appeal No.8689/2024 is awaiting final

hearing. In the said appeal, the appellant preferred an application

under Section 389 of the Code seeking suspension of the substantive

order of sentence passed by the Trial Court.

8.The High Court declined to suspend the substantive order of

sentence observing as under:-

“21. Having heard the learned counsel for applicant/appellant,

the learned A.G.A. for State-opposite party-1, upon perusal of

material brought on record, evidence, nature and gravity of

offence as well as complicity of applicant/appellant, accusation

made, this court finds that the objections raised by the learned

AGA in opposition to this application for suspension of sentence

could not be dislodged by the learned counsel for

applicant/appellant with reference to the record at this stage,

therefore, irrespective of the varied submissions urged by the

learned counsel for applicant/appellant in support of this

application for suspension of sentence and also considering the

fact that the applicant/appellant has been held to be guilty of

committing the offence which is not only immoral but also

heinous, therefore, this Court does not find any good or

sufficient ground so as to enlarge the applicant/appellant on

bail during the pendency of present appeal.”

9.In such circumstances, referred to above, the appellant is

here before this Court with the present petition.

10.There are two types of sentence that the Trial Court can

impose depending on the nature of the offence. Some orders of

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sentence are for a fixed term, unlike the order of sentence of life

imprisonment.

11.The case in hand is one of a fixed term of sentence. The

maximum punishment that has been imposed is 4 years.

12.Way back in 1999, this Court in “ Bhagwan Rama Shinde Gosai

and Others v. State of Gujarat” reported in (1999) 4 SCC 421 stated

that when a convicted person is sentenced to a fixed period of

sentence and when he files an appeal under any statutory right,

suspension of sentence should be considered by the Appellate Court

liberally unless there are exceptional circumstances.

13.Of course, if there is any statutory restriction against

suspension of sentence, it is a different matter.

14.Similarly, when the sentence is life imprisonment, the

consideration for suspension of sentence could be of a different

approach.

15.But if for any reason the sentence of a limited duration

cannot be suspended, every endeavour should be made to dispose of

the appeal on merits, more so when a motion for expeditious hearing

of the appeal is made in such cases.

16.This Court said in so many words that otherwise the very

valuable right of the appellant would be an exercise in futility

by afflux of time.

17.When the Appellate Court finds that due to practical reasons,

such appeals cannot be disposed of expeditiously, the Appellate

Court must show special concern in the matter of suspending the

sentence so as to make the appeal right, meaningful and effective.

At the same time, the appellate courts can impose similar

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conditions when appeal is granted.

18.In “Omprakash Sahni vs. Jai Shankar Chaudhary and Anr. (2023)

6 SCC 123, this Court while considering the scope of 389 CrPC in

cases of life imprisonment held as under:-

30. In Kishori Lal v. Rupa [Kishori Lal v. Rupa, (2004) 7 SCC

638 : 2004 SCC (Cri) 2021], this Court has indicated the

factors that require to be considered by the courts while

granting benefit under Section 389CrPC in cases involving

serious offences like murder, etc. Thus, it is useful to refer

to the observations made therein, which are as follows : (SCC

pp. 639-40, paras 4-6)

“4. 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 against. If he is in confinement, the

said court can direct that he be released on bail or on

his own bond. The requirement of recording reasons in

writing clearly indicates that there has to be careful

consideration of the relevant aspects and the order

directing suspension of sentence and grant of bail

should not be passed as a matter of routine.

5. The appellate court is duty-bound to objectively

assess the matter and to record reasons for the

conclusion that the case warrants suspension of

execution of sentence and grant of bail. In the instant

case, the only factor which seems to have weighed with

the High Court for directing suspension of sentence and

grant of bail is the absence of allegation of misuse of

liberty during the earlier period when the accused-

respondents were on bail.

6. The mere fact that during the trial, they were

granted bail and there was no allegation of misuse of

liberty, is really not of much significance. The effect

of bail granted during trial 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 liberties, does not per se warrant suspension

of execution of sentence and grant of bail. What really

was necessary to be considered by the High Court is

whether reasons existed to suspend the execution of

sentence and thereafter grant bail. The High Court does

not seem to have kept the correct principle in view.”

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31. In Vijay Kumar v. Narendra [Vijay Kumar v. Narendra, (2002)

9 SCC 364 : 2003 SCC (Cri) 1195] and Ramji Prasad v. Rattan

Kumar Jaiswal [Ramji Prasad v. Rattan Kumar Jaiswal, (2002) 9

SCC 366 : 2003 SCC (Cri) 1197] , it was held by this Court that

in cases involving conviction under Section 302IPC, it is only

in exceptional cases that the benefit of suspension of sentence

can be granted. In Vijay Kumar [Vijay Kumar v. Narendra, (2002)

9 SCC 364 : 2003 SCC (Cri) 1195], it was held that in

considering the prayer for bail in a case involving a serious

offence like murder punishable under Section 302IPC, the court

should consider the relevant factors like the nature of

accusation made against the accused, the manner in which the

crime is alleged to have been committed, the gravity of the

offence, and the desirability of releasing the accused on bail

after they have been convicted for committing the serious

offence of murder.

32. The aforesaid view is reiterated by this Court in Vasant

Tukaram Pawar v. State of Maharashtra [Vasant Tukaram Pawar v.

State of Maharashtra, (2005) 5 SCC 281 : 2005 SCC (Cri) 1052]

and Gomti v. Thakurdas [Gomti v. Thakurdas, (2007) 11 SCC 160 :

(2008) 1 SCC (Cri) 644].

33. Bearing in mind the aforesaid principles of law, 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 abovesaid 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 takes 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 reappreciate the evidence at the

stage of Section 389 CrPC and try to pick up a few lacunae or

loopholes here or there in the case of the prosecution. Such

would not be a correct approach.”

19.It is unfortunate that the High Court while passing the

impugned order failed to take into consideration the well-settled

principles of law governing the plea of suspension of sentence on

fixed term is concerned. What the High Court did was to reiterate

the entire case of the prosecution and the oral evidence which has

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come on record.

20.That is not the correct approach.

21.The High Court should have been mindful of the fact that the

appeal is of the year 2024. Appeal of 2024 is not likely to be

taken up in near future. Ultimately, if 4 years are to elapse in

jail the same would render the appeal infructuous and that would be

travesty of justice.

22.In such circumstances, referred to above, we set aside the

impugned order and remand the matter to the High Court for fresh

consideration of the plea of the appellant – herein for suspension

of the substantive order of sentence keeping in mind the principles

of law as explained by us aforesaid. The High Court shall keep in

mind that the sentence is for a fixed term, i.e. 4 years and it is

only if there are any compelling circumstances on record to

indicate that the release of the appellant would not be in public

interest that the Court may order accordingly.

23.We are once again constrained to observe that such errors

creep in at the level of High Court and only because the well-

settled principles of law on the subject are not applied correctly.

It is very important to first look into the subject-matter.

Thereafter the court should look into the issue involved. In the

last the court should look into the plea of the litigant and then

proceed to apply the correct principles of law.

24.With the aforesaid, the Appeal stands disposed of.

25.The High Court shall re-hear the application filed by the

appellant – herein afresh at the earliest and pass an appropriate

order within 15 days from today.

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26.Pending applications, if any, also stand disposed of.

…………………………………………J

(J.B. PARDIWALA)

…………………………………………J

(R. MAHADEVAN)

NEW DELHI

6TH AUGUST, 2025.