HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION No.6802 of 2009 DATED:27.08.2009 Between: K.Nagaratnamma .. Petitioner And The State of Andhra Pradesh rep., by its Public Prosecutor, High Court of A.P., Hyderabad through Sub Divisional Police Officer, Kavali and another .. Respondents HON’BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION No.6802 of 2009 ORDER: Heard Sri V.V.Sateesh, learned counsel representing Sri G.Sravan Kumar, learned counsel for the petitioner, and Sri A.Ramesh, learned counsel representing the learned Public Prosecutor for the first respondent. The second respondent is stated to be not a necessary party to the petition. Learned counsel for the petitioner brought to notice that in C.Nageswara Rao V. State of Andhra Pradesh and another [1], this Court interfered in a case where the question of suspension under Section 389 of the Code of Criminal Procedure is involved on being moved through a petition under Section 482 of the Code of Criminal procedure. The learned Judge pointed out that the appellate Court to which an appeal against the conviction and sentence has been preferred cannot exercise its discretion arbitrarily and such discretion has to be exercised fairly and reasonably with reference to facts and circumstances of the case, the nature of the offence, the quantum of sentence imposed, the fact whether the accused was on bail during the trial and the probability of securing the presence of the convicted accused for undergoing the sentence in case appeal is dismissed and other relevant circumstances. A cryptic order from the Court of Session that the petitioner failed to satisfy the Court by showing any cogent reason to suspend the execution of the sentence was held to be not a reason which could have been depended upon for refusing to suspend the sentence. The learned Judge also had taken into consideration the fact that the sentence of imprisonment in that case was so short that if it was not suspended, the accused would have served the sentence by the time, the appeal is decided. The impugned order in the present case is more cryptic saying that there is no reason to suspend the sentence at all. The reason if any that can be deduced from the impugned order is that the learned I Additional Sessions Judge was persuaded by the dishonour of the cheque for want of sufficient funds, which was issued in favour of the State Bank of India towards repayment of a loan. The proof of such a fact in the opinion of the trial Court made the accused suffer the conviction and sentence but the same is not a consideration germane, while examining the question of suspension of sentence pending the appeal. The learned counsel for the petitioner submitted that the petitioner was on bail during the pendency of the case before the trial Court and that he was having very strong grounds as stated in the grounds of appeal to believe in the likelihood of his possible success in the appeal. The learned Magistrate himself was pleased to suspend the sentence till 18.08.2009 obviously being persuaded by the right of the accused to have his defence reheard in appeal on merits. As the grounds on which the impugned order in Crl.M.P.No.313 of 2009 in Crl.A.No.148 of 2009 was passed by the learned I Additional Sessions Judge, Kurnool on 18.08.2009 do not appear to be relevant for the consideration under Section 389 (1) of the Code of Criminal Procedure and as the cryptic dismissal of the application does not convey the presence of any justifiable reasons for such dismissal, the said order has to be set aside. The learned I Additional Sessions Judge, Kurnool need not have given any liberty to the appellant to submit his arguments in the Criminal Appeal as observed in the said order and the appellant need not have to act, as advised by the learned I Additional Sessions Judge as it is the right of the petitioner to advance such arguments in the appeal. Taking all these circumstances into account including the nature of the offence, the sentence imposed, the continuance of the accused on bail during trial and the absence of any likelihood of the accused making himself scarce on any confirmation by the appellate Court, the sentence has to be suspended pending the appeal. Therefore, the sentence imposed on the petitioner by the judgment, dated 23.07.2009 in C.C.No.134 of 2007 on the file of the Special Judicial Magistrate of First Class (Prohibition and Excise), Kurnool shall stand suspended pending Criminal Appeal No.148 of 2009 on the file of the I Additional Sessions Judge, Kurnool subject to the same terms and conditions, subject to which the trial Court suspended the sentence originally till 18.08.2009 and the petitioner is granted two weeks time from today for compliance with any such terms and conditions before the appellate Court. The Criminal Petition is allowed accordingly. ___________________ G. BHAVANI PRASAD, J 27th August 2009 KH [1] 2000 (1) A.L.D. (Crl.) 490 (A.P.,)