P a g e 1 | 22

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEALLATE JURISDICTION

CRIMINAL APPEAL NOS. 1331-1332 OF 2023

OMPRAKASH SAHNI ... APPELLANT

VERSUS

JAI SHANKAR CHAUDHARY & ANR. ETC. ... RESPONDENTS

J U D G M E N T

J. B. PARDIWALA, J.:

1. These appeals are at the instance of the original first informant (brother

of the deceased) and are directed against a common order passed by the High

Court of Judicature at Patna in Criminal Appeal (DB) No. 322 of 2021 and

Criminal Appeal (DB) No. 411 of 2021 respectively by which, the High Court

suspended the substantive order of sentence of life imprisonment imposed by

the Trial Court on the respondent Nos. 1, 3 and 4 respectively herein (convicts)

and ordered their release on bail pending the final disposal of the two criminal

appeals referred to above.

FACTUAL MATRIX

2. It appears from the materials on record that the respondents Nos. 1, 3 and

4 respectively herein along with six other co-accused were put to trial in the

P a g e 2 | 22

Court of Additional Sessions Judge-VII, Vaishali, Hajipur, District: Vaishali at

Hajipur (Bihar) in Sessions Trial No. 280/2019 for the offences punishable

under Sections 302, 120-B, 506 respectively read with Section 34 of the Indian

Penal Code, 1860 (for short, ‘the IPC’) and Section 27 of the Arms Act, 1959

(for short, ‘the 1959 Act’)

3. The three respondents herein, namely, Jai Shankar Chaudhary, Abhay

Kumar and Ram Babu respectively were held guilty by the Trial Court, of the

offence of murder of the brother of the appellant herein, namely, Manish

Kumar. The other co-accused were ordered to be acquitted.

4. The respondents Nos. 1, 3 and 4 respectively herein went in appeal

before the High Court of Judicature at Patna, challenging the order of

conviction and sentence passed by the Trial Court.

5. The case of the prosecution narrated by the Trial Court in its judgment

dated 12.03.2021 is as under:

“The F.I.R in the instant case had been registered on 14.08.2018,

on the basis of written application of informant Om Prakash

Sahni, alleging therein that the informant Om Prakash Sahni on

13-08-2018 at about 01:00 P.M. alongwith his younger brother

Manish Kumar, the Block Pramukh, Jandaha reached the Office of

Block Pramukh, situated at block Jandaha by their alto car.

Informant's brother went in his chamber. The driver of the B.D.O.

came in his car and told the Pramukh that B.D.O. has called him

and on such information the Block Pramukh Manish Kumar went

to the residence of B.D.O. in the B.D.O's car. After sometime the

Pramukh came back in the same vehicle and as he was heading

towards his chamber at about 03:00 P.M., the accused Jai Shankar

Chaudhary and Abhay Kumar came and opened fire on

informant's brother, the Block Pramukh upon the exhortation by

accused Ram Babu Sahni to kill him. The informant's brother fell

on the ground and both the accused waving their pistols, fled away

on a motorcycle towards Mahua road. The other two accused Ram

Babu Sahni and Binod Chaudhary also fled away from the place

of occurrence on one another motorcycle, towards the same

direction. The F.I.R. further states that the informant and the

P a g e 3 | 22

Pramukh's driver namely Anil Kumar alongwith certain others

were present at the time of occurrence. They took him to the clinic

of doctor Bindu Jha and on his reference, they took the injured to

the Ganpati Hospital, Hajipur, where he was declared dead.

Thereafter they took the deceased to Hajipur Sadar Hospital,

where the postmortem examination was carried out and the police

also reached there and carried out further proceeding. The F.I.R.

also states that the election of block pramukh was held on 02-08-

2018 and the Pramukh won the election. The informant in the

F.I.R. also states that Umesh Singh Kushwaha, M.L.A., Mahnar,

Binod Chaudhary s/o Ram Lakhan Chaudhary, Ajeet Kumar s/o

Ram Babu Sahni Village Dulaur P.S. Jandaha, Kundan Sahni

(Prakhand Shikshak) s/o Ram Nandan Sahni Vill Narharpur,

Randhir Kumar S/o Late Masudan Prasad Singh Vill Narharpur,

Ranjeet Kumar S/o Ram Briksh Singh Viii Narharpur, all from P.S.

Jandaha and Ajay Thakur (Teacher) Sankul Sadhan Sevi, Jandaha

Vill Nari Khurd P.S. Patepur Dist Vaishali had earlier threatened

the informant at Bindi Chowk Road (north from Suresh Chowk)

that they would not allow informant's brother to win the election

and in the event, he wins, they would not let him live. The

informant also states that these persons threatened him many times

and he informed his brother of such fact. The present Prakhand

Siksha Padadhikri, Jandaha also threatened that he should

communicate to the Pramukh for not getting involved in the

recruitment of Prakhand Shikshak, otherwise he may face dire

consequences. The informant is under the belief that all the

abovereferred persons in conspiracy, have committed the murder

of informant's brother Manish Kumar.”

6. In the course of the trial, the prosecution examined ten witnesses as

under:

P.W. 1 Raj Kumar Sahni,

P.W. 2 Anil Kumar Sahni,

P.W 3 Rup Kala Devi,

P.W. 4 Dr. Shashidhar Kumar,

P.W. 5 Lal Babu Sahni,

P.W. 6 Laldeo Sahni,

P. W. 7 Om Prakash Sahni/ informant,

P a g e 4 | 22

P. W. 8 Saroj Kumar Singh,

P.W. 9 Shobhakant Paswan (Investigating Officer) and

P.W. 10 Sunil Kumar Singh (Investigating Officer).

7. The Trial Court, upon evaluation of the oral as well as documentary

evidence on record, in the final analysis observed in paras 40 and 41

respectively as under:

“40. On considering the submissions made by learned counsel of

parties and the conjoint perusal of prosecution evidence including

the cross-examination done by learned counsels for defence this

court finds that the prosecution has led credible evidence that on

13-08-2018, at about 03:00 PM at Jandaha block, the accused

Ram Babu Sahni and Binod Chaudhary exhorted Jai Shankar

Chaudhary and Abhay Kumar Sahni to kill Manish Sahni. On such

provocation, Jai Shankar Chaudhary and Abhay Kumar Sahni

shot the bullet over Manish Sahni. He was then taken to doctor

Bindu Jha in Jandaha and was referred from there to Hajipur. He

was taken to Hajipur Ganpati Hospital by an ambulance, where

the doctor declared him dead. As per the evidence of PW-7/

informant, the Manish Sahni alongwith him and the driver P.W. 2

reached the block Jandaha at about 01:00 P.M., they were sitting

in his chamber, when the B.D.O. called him through his driver and

he went to meet the B.D.O. to his resident from the B.D.O's vehicle.

When he arrived back at about 03:00 P.M., as he was heading

towards his chamber, the accused Ram Babu Sahni and Binod

Chaudhary exhorted Jai Shankar Chaudhary and Abhay Kumar

Sahni to kill Manish Sahni. On such provocation, Jai Shankar

Chaudhary and Abhay Kumar Sahni shot the bullet over Manish

Sahni and he fell on the ground. All the four accused fled away

from northern gate towards Mahua road. Manish Sahni was then

taken to doctor Bindu Jha in Jandaha and was referred from there

to Hajipur. He was taken to Hajipur Ganpati Hospital by an

ambulance, where the doctor declared him dead. His autopsy was

performed at Sadar Hospital, Hajipur. The reason behind the

occurrence in question is that the accused Jai Shankar Chaudhary

was earlier elected the block Pramukh, but was defeated by

P a g e 5 | 22

Manish Sahni in no confidence motion. The Manish Sahni then

became Block Pramukh. All the accused persons are said to

conspire for commission of the alleged offence. The P.W. 1 Raj

Kumar Sahni in his evidence has proved that the Pramukh Manish

Sahni came from B.D.O's vehicle and was heading towards his

chamber, when accused Jai Shankar alongwith another opened

fire over Manish Sahni. He has stated that it was Jai Shankar, who

shot Manish Sahni. P.W. 2, the driver of Block Pramukh namely

Anil Kumar Sahni also proved that Manish Sahni arrived from

B.D.O's vehicle. The accused Jai Shankar Chaudhary and Abhay

Kumar Sahni were already present there. The other accused Ram

Babu Sahni and Binod Chaudhary reached there and said “kya

dekhte ho goli maaro”. Jai Shankar Chaudhary shot the bullet

and thereafter Abhay Kumar shot the other bullet. The Pramukh

fell on the ground and the informant and the witness P.W.2 are said

to take him to hospital at Jandaha, from where he was referred to

Hajipur Sadar Hospital, but he died on the way. P.W. 3 the wife of

deceased is not an eye witness. However, she has testified the death

of her husband by accused persons in the manner as stated by

witnesses. In addition to these facts, she has also stated that when

her husband won the election, he was given threat for life and she

had advised her husband to remain alert. P.W. 5 in his statement-

in-chief has proved the date and time of occurrence i.e., 13-08-

2018 at 03:00 P.M. He, an eye witness also testifies the prosecution

story that the accused Jai Shankar Chaudhary and Abhay Kumar

opened fire over Manish Sahni on the provocation and exhortation

by Ram Babu Sahni and Binod Chaudhary. P.W. 6 in his statement-

in-chief also proves the date 13-08-2018 and time 03:00 P.M. of

the alleged occurrence. He claims to be an eye witness of the

occurrence and testifies that Binod Chaudhary and Ram Babu

came by a bike and exhorted Jai Shankar Chaudhary and another

person, whom he did not identify. On such exhortation and

provocation, Jai Shankar Chaudhary and the other one opened fire

over Manish Sahni. P.W. 8 Saroj Kumar Singh also claims to be an

eye witness and testifies the fact that on the instigation of Binod

Chaudhary, the accused Jai Shankar Chaudhary opened fire over

Manish Sahni and he does not identify the other person, who also

shot bullet over Manish Sahni. However, the date of occurrence

has been contradicted by PW-8 to be 30.08.2018. The accused

Binod Chaudhary whose name reflects in the evidence repeatedly

P a g e 6 | 22

is not facing the instant trial before court. The doctor has proved

the postmortem report and the injuries thereon are the two entry

wounds, one each over left upper chest and over epigastrium

alongwith two exit wounds, one each on right sub costal region

impugned posterior axillary line and the other over right lumbar

region in posterior axillary line. The two investigating officers

who carried out the investigation, have proved genuineness of the

investigation process as has been discussed in the preceding

paragraphs. The defence could not bring such material or

contradictions or any other evidence on record to falsify the facts

placed and proved by prosecution.

41. Hence, on the basis of material and the evidence both oral and

documentary, as available on record, this court arrives at

conclusion that the prosecution has proved its case against

accused Jai Shankar Chaudhary, Abhay Kumar alias Abhay Sahni

and Ram Babu Sahni, beyond reasonable doubts that on

exhortation of Ram Babu Sahni, the other two accused Jai Shankar

Chaudhary and Abhay Kumar @ Abhay Sahni opened fire over

Manish Sahni, causing his death and thereby committing his

murder. This court finds them guilty of committing the murder of

Manish Sahni in furtherance of their common intention.”

8. The three convicts before us i.e., the respondents Nos. 1, 3 and 4

respectively prayed before the High Court that they be released on bail pending

the final disposal of their appeals by suspending the substantive order of

sentence of life imprisonment.

9. The High Court suspended the substantive order of sentence of all the

three convicts and ordered their release on bail vide the impugned order dated

16.09.2022. The High Court observed thus:

“By the impugned judgment and order of conviction dated

12.03.2021 and order of sentence dated 15.03.2021 passed by

the learned Additional Sessions Judge-VII, Vaishali at Hajipur,

in Sessions Trial No. 280/2019 arising out of Jandaha P.S. Case

No. 202/2018, the appellant has been convicted and sentenced

as under:

P a g e 7 | 22

Appellant’s

Name

Conviction

under

Section

Sentence

Imprisonment Fine

(Rs.)

In

default

of fine

CRIMINAL APPEAL (DB) NO. 322 of 2021

Jai

Shankar

Chaudhary

302/34

of

the I.P.C.

Rigorous

imprisonment

for Life

50, 000/- Rigorous

imprison

ment for

six

months

27 of

The

Arms Act

Rigorous

imprisonment

for

five years

- -

CRIMINAL APPEAL (DB) NO. 411 of 2021

Abhay

Kumar

302/34

of the

I.P.C.

Rigorous

imprisonment

for Life

50, 000/- Rigorous

imprison

ment for

six

months

27 of

the Arms

Act

Rigorous

imprisonment

for

five

years

- -

Ram Babu

Sahni

302/34

of the

I.P.C.

Rigorous

imprison

ment for

Life

50, 000/- Rigorous

imprisonment

for six months

75 per cent of the fine amount has been ordered to be paid to the

widow of deceased Manish Sahni, namely, Rup Kala Devi and 25

per cent of the amount has been ordered to be paid to the State of

Bihar.

In compliance of this Court's order dated 03.08.2022, the

State has filed a written objection in terms of the first proviso to

Section 389(1) of the Criminal Procedure Code.

We have heard Mr. Vasant Vikas, learned counsel appearing

on behalf of the appellant in Criminal Appeal (DB) No. 322 of

2021; Mr. Sanjay Singh, learned Senior Counsel appearing on

P a g e 8 | 22

behalf of the appellant in Criminal Appeal (DB) No. 411 of 2021

and learned Additional Public Prosecutor for the State.

Learned counsel appearing on behalf of the appellants have

submitted that for the occurrence said to have taken place at 03:00

pm, at a public place, on 13.08.2018, the First Information Report

came to be registered on 14.08.2018, based on written report of

the informant (P.W.-7) submitted at 01:00 pm. The informant has

claimed to be an eye-witness of the occurrence. However, there is

no explanation for the late submission of the written report,

naming these appellants as the assailants. It has been argued that

it is evident from the First Information Report that political rivalry

between the deceased and these appellants has been disclosed as

the reason why the deceased was killed by these appellants. They

accordingly submit that disclosure of names of these appellants in

the First Information Report, as the main assailants, is an

afterthought and in that background, the late registration of First

Information Report casts a serious doubt on the veracity of the

prosecution's case. It has, further, been argued that though (P.W.-

7), the informant, has claimed to be an eye-witness to the

occurrence, who had carried the deceased in the injured condition

to a nearby hospital and thereafter to Sadar hospital, after the

deceased was declared dead in a private hospital; his own

deposition contradicts this version as asserted in the First

Information Report inasmuch as in response to a question during

the course of cross-examination, he admitted that he had not gone

to the Sadar hospital with the deceased. It has further been argued

that though the appellants were produced during the course of the

trial through video conference from the jail, but there is no

evidence that the prosecution's witnesses identified these

appellants during the course of the trial.

Learned Additional Public Prosecutor opposing appellants'

prayer for bail has submitted that since the appellants are the main

assailants, as disclosed in the First Information Report, which has

been substantiated by all the eye-witnesses during the course of

the trial, who have been consistent in their depositions and

political rivalry between the deceased and these appellants, being

an admitted fact, such animosity adds credence to the deposition

of the eye-witnesses.

P a g e 9 | 22

We have perused the impugned judgment and order of the

trial court. We have given our anxious consideration to rival

submissions advanced on behalf of the parties. We have perused

the original copy of the First Information Report available with

the lower court records from which it is manifest that there have

been over-writings as regards the date when the said written report

of the informant (P.W.-7) was submitted in the police station.

It is the prosecution's case, as disclosed in the First

Information Report as also set up at the trial, that the occurrence

had taken place at 03:00 pm on 13.08.2018 in the Block office. The

deceased was Pramukh of the said block.

It has been asserted in the First Information Report that when

the informant and the deceased were about to enter into his

(deceased's) chamber in the Block office, appellant Jai Shankar

Chaudhary and Abhay Kumar opened fire on the instigation of

accused Ram Babu Sahani. The informant and others are said to

have taken the deceased, in injured condition, to a private hospital,

where he was declared dead. The dead body of the deceased was

thereafter taken to Sadar hospital, where the inquest report was

prepared by the police officer and post-mortem was also carried

out on the same date, i.e., 13.08.2018. In the aforesaid

background, we find substance in the submission made on behalf

of the appellants that there was no cogent explanation for the

informant to have filed his written statement on the next day at 01

:00 pm, implicating these appellants as the main assailants.

Further, the informant (P.W.-7) does not prima facie appear to be

truthful, particularly in view of the evidence of the prosecution

witnesses to the effect that the body of the deceased was taken by

villagers to the hospital and not by the informant.

In the abovementioned peculiar facts and circumstances of

the case, in our view, inordinate delay in filing of the written report

leading to registration of First Information Report appears to be

a valid ground for doubting the case of the prosecution, for the

purpose of exercise of discretion under Article 389(1) of the

Criminal Procedure Code.

Considering the facts and circumstances as noted above, the

prayer made on behalf of the appellants for their release on bail is

allowed.

P a g e 10 | 22

Let the appellants, namely, Jai Shankar Chaudhary [In

Criminal Appeal (DB) No. 322 of 2021], Abhay Kumar @ Abhay

Sahni and Ram Babu Sahni [In Criminal Appeal (DB) No. 411 of

2021] be released on bail during the pendency of appeal on

furnishing bail bond of Rs. 10,000/- (Ten Thousand) with two

sureties of the like amount each to the satisfaction of learned

Additional Sessions Judge-VII, Vaishali at Hajipur, in Sessions

Trial No. 280 of 2019 arising out of Jandaha P.S. Case No. 202 of

2018.

The sentence shall remain suspended in the meanwhile.

Realisation of fine shall also remain stayed.”

(Emphasis supplied)

10. The original first informant (brother of the deceased) being aggrieved

and dissatisfied with the aforesaid order passed by the High Court has come up

in appeals before us.

SUBMISSIONS ON BEHALF OF THE APPELLANT

11. Mr. R. Chandrachud, the learned counsel appearing for the appellant

vehemently submitted that the High Court committed a serious error in passing

the impugned order thereby releasing the three convicts on bail pending final

disposal of their respective appeals by suspending the substantive order of their

sentence, in exercise of power under Section 389 of the Code of Criminal

Procedure, 1973 (for short, ‘the CrPC’).

12. The learned counsel would submit that once the accused stood convicted

for a very serious offence like murder, the presumption of innocence would no

longer exist and the High Court is expected to be very slow in granting bail. He

submitted that the High Court while considering the plea of the three convicts

for suspension of substantive order of sentence has virtually appreciated the

P a g e 11 | 22

evidence. The High Court could not have gone into the issues like over-writings

in the First Information Report, inordinate delay in lodging the First

Information Report etc. while considering the plea of the convicts for

suspension of sentence of life imprisonment.

13. The learned counsel would submit that the entire case of the prosecution

is based on ocular evidence. The Trial Court having believed and accepted the

version of the appellant herein, who is one of the eyewitnesses to the incident,

the High Court could not have so lightly and casually suspended the substantive

order of sentence of life imprisonment.

14. In such circumstances referred to above, the learned counsel appearing

for the appellant prayed that there being merit in his appeals, those may be

allowed and the impugned common order passed by the High Court may be set

aside.

SUBMISSIONS ON BEHALF OF THE RESPONDENT NOS. 1, 3 AND 4

RESPECTIVELY (CONVICTS)

15. Mr. V.K. Shukla, the learned Senior Counsel appearing for the convicts,

on the other hand, vehemently opposed the appeals, submitting that no error

not to speak of any error of law could be said to have been committed by the

High Court in passing the impugned order suspending the substantive order of

sentence, imposed on the respective convicts by the Trial Court. He would

submit that the entire case put up by the prosecution is highly doubtful and

politically motivated. The prosecution has suppressed the true origin of the

occurrence. He would submit that his clients have been falsely implicated in

the alleged crime.

16. The learned Senior Counsel further submitted that this Court should be

slow in exercise of its power under Article 136 of the Constitution while

P a g e 12 | 22

looking into a discretionary order, passed by the High Court under Section 389

of the CrPC. The impugned order passed by the High Court cannot be termed

as absolutely vague or perverse and, in such circumstances, this Court may not

disturb the impugned order.

17. In the last, the learned Senior Counsel submitted that it will take years

by the time, the appeals come up for final hearing and for all that period of time

his clients would be languishing in jail. He would submit that there are very

fair chances of his clients getting acquitted in the criminal appeals and in such

circumstances, there is nothing wrong if they are allowed to remain on bail,

pending the final disposal of their respective criminal appeals.

18. In such circumstances referred to above, the learned Senior Counsel

prayed that there being no merit in the appeals, those may be dismissed.

ANALYSIS

19. Having heard the learned counsel appearing for the parties and having

gone through the materials on record, the only question that falls for our

consideration is whether the High Court committed any error in passing the

impugned order?

SECTION 389 OF THE CRPC AND THE LAW ON THE SUSPENSION

OF SENTENCE:

20. Section 389 of the CrPC reads thus:

"389. Suspension of sentence pending the appeal; release of

appellant on bail.—(1) Pending any appeal by a convicted person,

the Appellate Court may, for reasons to be recorded by it in

writing, order that the execution of the sentence or order appealed

P a g e 13 | 22

against be suspended and, also, if he is in confinement, that he be

released on bail, or on his own bond.

Provided that the Appellate Court shall, before releasing on

bail or on his own bond a convicted person who is convicted of an

offence punishable with death or imprisonment for life or

imprisonment for a term of not less than ten years, shall give

opportunity to the Public Prosecutor for showing cause in writing

against such release:

Provided further that in cases where a convicted person is

released on bail it shall be open to the Public Prosecutor to file an

application for the cancellation of the bail.

(2) The power conferred by this section on an Appellate

Court may be exercised also by the High Court in the case of an

appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which

he is convicted that he intends to present an appeal, the Court

shall,—

(i) where such person, being on bail, is sentenced to

imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been

convicted is a bailable one, and he is on bail,

order that the convicted person be released on bail, unless there

are special reasons for refusing bail, for such period as will afford

sufficient time to present the appeal and obtain the orders of the

Appellate Court under sub-section (1), and the sentence of

imprisonment shall, so long as he is so released on bail, be deemed

to be suspended.

(4) When the appellant is ultimately sentenced to

imprisonment for a term or to imprisonment for life, the time

during which he is so released shall be excluded in computing the

term for which he is so sentenced."

21. Suspension conveys postponement or temporarily preventing a state of

affairs from continuing. According to the Black's Law Dictionary (Seventh

Edition), the word 'suspend' means, inter alia, to interrupt; postpone; defer. The

P a g e 14 | 22

Black's Law Dictionary (Seventh Edition) describes the word 'suspension' to

mean, inter alia, an act of temporarily delaying, interrupting or terminating

something. Attributing the same meaning to the word 'suspend' as pointed out

above, the New Oxford Dictionary of English (1998 Edition) describes suspend

as temporarily preventing from continuing or being enforced or given effect or

defer or delay an action, event or judgment.

22. Thus, when we speak of suspension of sentence after conviction, the idea

is to defer or postpone the execution of the sentence. The purpose of

postponement of sentence cannot be achieved by detaining the convict in jail;

hence, as a natural consequence of postponement of execution, the convict may

be enlarged on bail till further orders.

23. The principle underlying the theory of criminal jurisprudence in our

country is that an accused is presumed to be innocent till he is held guilty by a

court of the competent jurisdiction. Once the accused is held guilty, the

presumption of innocence gets erased. In the same manner, if the accused is

acquitted, then the presumption of innocence gets further fortified.

24. From perusal of Section 389 of the CrPC, it is evident that save and

except the matter falling under the category of sub-section 3 neither any

specific principle of law is laid down nor any criteria has been fixed for

consideration of the prayer of the convict and further, having a judgment of

conviction erasing the presumption leaning in favour of the accused regarding

innocence till contrary recorded by the court of the competent jurisdiction, and

in the aforesaid background, there happens to be a fine distinction between the

prayer for bail at the pre-conviction as well as the post-conviction stage, viz

Sections 437, 438, 439 and 389(1) of the CrPC.

P a g e 15 | 22

25. In Rajesh Ranjan Yadav alias Pappu Yadav v. CBI, reported in (2007)

1 SCC 70, it has been held under paras 8, 9 and 10 respectively, which are as

follows:

"8. Learned counsel for the appellant then relied on the decision

of this Court in Kashmira Singh v. State of Punjab [(1977) 4 SCC

291 : 1977 SCC (Cri) 559] . In para 2 of the said decision it was

observed as under : (SCC pp. 292-93)

“It would indeed be a travesty of justice to keep a person in

jail for a period of five or six years for an offence which is

ultimately found not to have been committed by him. Can the

Court ever compensate him for his incarceration which is

found to be unjustified? Would it be just at all for the Court

to tell a person: ‘We have admitted your appeal because we

think you have a prima facie case, but unfortunately we have

no time to hear your appeal for quite a few years and,

therefore, until we hear your appeal, you must remain in jail,

even though you may be innocent?’ What confidence would

such administration of justice inspire in the mind of the

public? It may quite conceivably happen, and it has in fact

happened in a few cases in this Court, that a person may

serve out his full term of imprisonment before his appeal is

taken up for hearing. Would a Judge not be overwhelmed

with a feeling of contrition while acquitting such a person

after hearing the appeal? Would it not be an affront to his

sense of justice? Of what avail would the acquittal be to such

a person who has already served out his term of

imprisonment or at any rate a major part of it? It is,

therefore, absolutely essential that the practice which this

Court has been following in the past must be reconsidered

and so long as this Court is not in a position to hear the

appeal of an accused within a reasonable period of time, the

Court should ordinarily, unless there are cogent grounds for

acting otherwise, release the accused on bail in cases where

special leave has been granted to the accused to appeal

against his conviction and sentence.”

9. Learned counsel for the appellant then relied on the decision of

this Court in Bhagirathsinh v. State of Gujarat [(1984) 1 SCC 284

: 1984 SCC (Cri) 63] , Shaheen Welfare Assn. v. Union of

India [(1996) 2 SCC 616 : 1996 SCC (Cri) 366] , Joginder

P a g e 16 | 22

Kumar v. State of U.P. [(1994) 4 SCC 260 : 1994 SCC (Cri) 1172]

, etc.

10. In our opinion none of the aforesaid decisions can be said to

have laid down any absolute and unconditional rule about when

bail should be granted by the Court and when it should not. It all

depends on the facts and circumstances of each case and it cannot

be said there is any absolute rule that because a long period of

imprisonment has expired bail must necessarily be granted."

(Emphasis supplied)

26. This Court, in the case of Ash Mohammad v. Shiv Raj Singh alias Lalla

Babu and Another, reported in (2012) 9 SCC 446, has observed in para 30, as

follows:

"30. We may usefully state that when the citizens are scared to lead

a peaceful life and this kind of offences usher in an impediment in

establishment of orderly society, the duty of the court becomes

more pronounced and the burden is heavy. There should have been

proper analysis of the criminal antecedents. Needless to say,

imposition of conditions is subsequent to the order admitting an

accused to bail. The question should be posed whether the accused

deserves to be enlarged on bail or not and only thereafter issue of

imposing conditions would arise. We do not deny for a moment

that period of custody is a relevant factor but simultaneously the

totality of circumstances and the criminal antecedents are also to

be weighed. They are to be weighed in the scale of collective cry

and desire. The societal concern has to be kept in view in

juxtaposition of individual liberty. Regard being had to the said

parameter we are inclined to think that the social concern in the

case at hand deserves to be given priority over lifting the

restriction on liberty of the accused.” (Emphasis supplied)

27. In Bhagwan Rama Shinde Gosai and Others v. State of Gujarat,

reported in (1999) 4 SCC 421, wherein the appellants were convicted by the

Trial Court against which, the appeal was pending before the High Court, the

High Court successively rejected the prayer for grant of bail till the pendency

of appeal after suspending the sentence. Thus, it has been held as follows:

P a g e 17 | 22

"3. 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 can be considered by the appellate court

liberally unless there are exceptional circumstances. Of course, if

there is any statutory restriction against suspension of sentence it

is a different matter. Similarly, when the sentence is life

imprisonment the consideration for suspension of sentence could

be of a different approach. 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.

Otherwise the very valuable right of appeal would be an exercise

in futility by efflux of time. When the appellate court finds that due

to practical reasons such appeals cannot be disposed of

expeditiously the appellate court must bestow special concern in

the matter of suspending the sentence so as to make the appeal

right, meaningful and effective. Of course, appellate courts can

impose similar conditions when bail is granted."

(Emphasis supplied)

28. In Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi),

reported in (2008) 5 SCC 230 (popularly known as the Jessica Lal murder case),

this Court had the occasion to consider the rival submissions as well as various

judicial pronouncements referred to by both the sides over the prayer for bail.

Thus, it has been held as follows:

"19. We are conscious and mindful that the main matter (appeal)

is admitted and is pending for final hearing. Observations on

merits, one way or the other, therefore, are likely to prejudice one

or the other party to the appeal. We are hence not entering into the

correctness or otherwise of the evidence on record. It, however,

cannot be overlooked that as on today, the applicant has been

found guilty and convicted by a competent criminal court. Initial

presumption of innocence in favour of the accused, therefore, is no

more available to the applicant.

xxx xxx xxx

P a g e 18 | 22

30. ….In the above cases, it has been observed that once a person

has been convicted, normally, an appellate court will proceed on

the basis that such person is guilty. It is no doubt true that even

thereafter, it is open to the appellate court to suspend the sentence

in a given case by recording reasons. But it is well settled, as

observed in Vijay Kumar [(2002) 9 SCC 364 : 2003 SCC (Cri)

1195 : JT 2002 Supp (1) SC 60] 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 all 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, the desirability of releasing the accused on

bail after he has been convicted for committing serious offence of

murder, etc. It has also been observed in some of the cases that

normal practice in such cases is not to suspend the sentence and it

is only in exceptional cases that the benefit of suspension of

sentence can be granted.

31. In Hasmat [(2004) 6 SCC 175 : 2004 SCC (Cri) 1757 : JT

(2004) 6 SC 6] , this Court stated : (SCC p. 176, para 6)

“6. Section 389 of the Code deals with suspension of

execution of sentence pending the appeal and release of the

applicant 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.”

(emphasis supplied)

32. The mere fact that during the period of trial, the accused was

on bail and there was no misuse of liberty, does not per se warrant

suspension of execution of sentence and grant of bail. What is

really necessary is to consider whether reasons exist to suspend

execution of the sentence and grant of bail.”

(Emphasis supplied)

P a g e 19 | 22

29. In the case of Atul Tripathi v. State of Uttar Pradesh and Others,

reported in (2014) 9 SCC 177, whereunder apart from identifying the

differences of consideration of prayer for grant of bail relating to pre-conviction

stage as well as post-conviction stage, it has been held in para 14 which is as

follows:

"14. Service of a copy of the appeal and application for bail on the

Public Prosecutor by the appellant will not satisfy the requirement

of the first proviso to Section 389(1) CrPC. The appellate court

may even without hearing the Public Prosecutor, decline to grant

bail. However, in case the appellate court is inclined to consider

the release of the convict on bail, the Public Prosecutor shall be

granted an opportunity to show cause in writing as to why the

appellant be not released on bail. Such a stringent provision is

introduced only to ensure that the court is apprised of all the

relevant factors so that the court may consider whether it is an

appropriate case for release having regard to the manner in which

the crime is committed, gravity of the offence, age, criminal

antecedents of the convict, impact on public confidence in the

justice-delivery system, etc. ….."

30. In Kishori Lal v. Rupa and Others, reported in (2004) 7 SCC 638, this

Court has indicated the factors that require to be considered by the courts while

granting benefit under Section 389 of the CrPC in cases involving serious

offences like murder etc. Thus, it is useful to refer to the observations made

therein, which are as follows:

“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

P a g e 20 | 22

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.”

31. In Vijay Kumar v. Narendra and Others reported in (2002) 9 SCC 364

and Ramji Prasad v. Rattan Kumar Jaiswal and Another reported in (2002) 9

SCC 366, it was held by this Court that in cases involving conviction under

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

suspension of sentence can be granted. In Vijay Kumar (supra), it was held that

in considering the prayer for bail in a case involving a serious offence like

murder punishable under Section 302 of the 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.

P a g e 21 | 22

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

Tukaram Pawar v. State of Maharashtra reported in (2005) 5 SCC 281 and

Gomti v. Thakurdas and Others reported in (2007) 11 SCC 160.

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

above said question is to be in the affirmative, as a necessary corollary, we shall

have to say that, if ultimately the convict appears to be entitled to have an

acquittal at the hands of this Court, he should not be kept behind the bars for a

pretty long time till the conclusion of the appeal, which usually take very long

for decision and disposal. However, while undertaking the exercise to ascertain

whether the convict has fair chances of acquittal, what is to be looked into is

something palpable. To put it in other words, something which is very apparent

or gross on the face of the record, on the basis of which, the Court can arrive at

a prima facie satisfaction that the conviction may not be sustainable. The

Appellate Court should not reappreciate the evidence at the stage of Section

389 of the CrPC and try to pick up few lacunas or loopholes here or there in the

case of the prosecution. Such would not be a correct approach.

34. In the case on hand, what the High Court has done is something

impermissible. High Court has gone into the issues like political rivalry, delay

in lodging the FIR, some over-writings in the First Information Report etc. All

these aspects, will have to be looked into at the time of the final hearing of the

appeals filed by the convicts. Upon cursory scanning of the evidence on record,

we are unable to agree with the contentions coming from the learned Senior

Counsel for the convicts that, either there is absolutely no case against the

convicts or that the evidence against them is so weak and feeble in nature, that,

ultimately in all probabilities the proceedings would terminate in their favour.

P a g e 22 | 22

For the very same reason we are unable to accept the contention coming from

the convicts through their learned Senior Counsel that, it would be meaningless,

improper and unjust to keep them behind the bars for a pretty long time till they

are found not to be guilty of the charges.

35. In the overall view of the matter, we are convinced that the High Court

committed a serious error in suspending the substantive order of sentence of

the convicts and their release on bail pending the final disposal of their criminal

appeals.

36. In fact, it was expected of the State as the prosecuting agency to

challenge the order passed by the High Court, but for some reason or the other,

the State thought fit not to do anything further. Ultimately, it is the original first

informant (brother of the deceased) who had to come before this Court.

37. We make it clear and it goes without saying that any observations

touching the merits of the case are purely for the purpose of deciding the present

appeals and shall not be construed as an expression of the final opinion in the

pending criminal appeals before the High Court.

38. In the result, both the appeals succeed and are hereby allowed.

39. The impugned order passed by the High Court is hereby set aside.

40. The convicts are ordered to surrender before the Trial Court within a

period of three days from today.

…………..……………..J.

(M.R. SHAH)

..…..….………………..J.

(J.B. PARDIWALA)

NEW DELHI;

MAY 2, 2023.