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CASE NO.:

Appeal (crl.) 1067 of 2004

PETITIONER:

Kishori Lal

RESPONDENT:

Rupa and Ors.

DATE OF JUDGMENT: 23/09/2004

BENCH:

ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT:

J U D G M E N T

(Arising out of S.L.P.(Crl.) No.2223 of 2004)

ARIJIT PASAYAT, J.

Leave granted.

The informant calls in question legality of grant of bail to

accused-respondent Nos.1 to 3 by the High Court of Allahabad. In the

appeal preferred by respondents 1 to 3, an application was filed

purportedly under Section 389 of the Code of Criminal Procedure, 1973

(in short the `Code') with the prayer that execution of substantive

sentence of imprisonment for life and a fine of Rs.10,000/- imposed

after finding them guilty for offences punishable under Section 302

read with Section 34 of the Indian Penal Code, 1860 (in short the

`IPC') be suspended. The High Court, by the impugned order, granted

bail primarily on the ground that during trial, the accused respondents

were on bail and had not misused the liberties granted to them.

According to learned counsel for the appellant-informant, who is

supported by learned counsel for respondent No.4 - State, the approach

of the High Court is clearly erroneous. In a large number of cases

the accused-respondent Nos.1 to 3 were involved and the appellant and

his family members have been threatened with dire consequences for

having set law into motion. Learned counsel for accused-respondent

Nos.1 to 3, however, submitted that the case was instituted on account

of previous enmity and at present no case is pending where they are

accused.

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 earlier period when the

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accused-respondents were on bail.

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 looses

significance when on completion of trial, the accused persons have been

found guilty. The mere fact that during the period when the accused

persons were on bail during trial there was no misuse of liberties,

does not per se warrant suspension of execution of sentence and grant

of bail. What really was necessary to be considered by the High Court

is whether reasons existed to suspend the execution of sentence and

thereafter grant bail. The High Court does not seem to have kept the

correct principle in view.

A similar question was examined in State of Haryana Vs. Hasmat

(JT 2004 (6) SC 6).

In Vijay Kumar V. Narendra and others (2002 (9) SCC 364) and

Ramji Prasad V. Rattan Kumar Jaiswal and another (2002 (9) SCC 366), it

was held by this Court that in cases involving conviction under Section

302 IPC, it is only in exceptional cases that the benefit of suspension

of sentence can be granted. The impugned order of the High Court does

not meet the requirement. In Vijay Kumar's case (supra) it was held

that in considering the prayer for bail in a case involving a serious

offence like murder punishable under Section 302 IPC, the Court should

consider the relevant factors like the nature of accusation made

against the accused, the manner in which the crime is alleged to have

been committed, the gravity of the offence, and the desirability of

releasing the accused on bail after they have been convicted for

committing the serious offence of murder. These aspects have not been

considered by the High Court, while passing the impugned order.

The order directing suspension of sentence and grant of bail is

clearly unsustainable and is set aside. Learned counsel for the

accused-respondents stated that a fresh application shall be moved. In

case it is done, the High Court, it goes without saying, shall consider

the matter in accordance with law, in its proper perspective. We

express no opinion in that regard.

The appeal is, accordingly, allowed.