KISHORI LAL v.

RUPA AND ORS.

SEPTEMBER 23, 2004

[ARIJIT PASAYAT AND C.K. THAKKER, JJ.]

Code of Criminal Procedure, 1973-Section 389--Convictionfor murder by trial Court-During pendency of appeal suspension of execution of sentence and grant of bail by High Court-On the ground that accused while on bail during trial did not misuse the liberty-Appeal challenging grant of bail-Held: Order to suspend execution of sentence and grant of bail was erroneous-Such order is not to be passed as a matter of routine-Order was passed without considering the relevant factors required to be considered while granting bail in case involving offence of murder.

Respondentsaccused were convicbd by trial Court u/s 302 IPC and sentenced for the same. In the appeal before High Court, they fUed application u/s 389 Cr.P.C. for suspension of execution of sentence. High Court granted bail on the ground that. during trfal, they were on bail and had not misused the liberties granted to them; Appellant-info.rmant filed appeal before this Court challenging the grant of bail.

Allowing. the appeal, the Court

HELD: 1. The order directing suspension of sentence and grant of bail is unsustainable. The mere fad that during the perio.d when the

 F 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. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. What

. really was necessary to be considered by the High Court was whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Courtdoes not seem to have kept the correct principle in view. [631-F; 631-A-B)

State of Haryana v. Hasmat, JT (2004) 6 SC 6, relied on.

2. One of the essential ingredients of Section 389 Cr; P.C. is the

KISH ORI LAL v. RUPA [PASA VAT, J.] 629

requirement for the appellate Court to record reasons in writing for A 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 B grant of bail should not be passed as a matter of routine. (630-D-F]

3. 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 mit meet the requirement. In considering the prayer for bail in a case involving a serious offence like C 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. (631-C-E)

Vijay Kumar v. Narendra and Ors., [2002) 9 SCC 364 and Ramji Prasad v. Rattan Kumar Jaiswal and Anr., [2002) 9 SCC 366, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

I 067 of 2004.

From the Judgment and Order dated 13 .1.2004 of the Allahabad High Court in Cr!. A. No. 148 of 2004.

Dr. (Mrs.) Vipin Gupta for the Appellant.

Shahid Anwar and Naresh Kumar for the Respondents.

R. K. Singh and J.K. Bhatia for State.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. : Leave granted.

The informant calls in question legality of grant of bail to accused- H

SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A respondent Nos. I to 3 by the High Court of Allahabad. In the appeal preferred by respondents l 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 B 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 accusedrespondent Nos. l 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. I to 3, however, submitted that the case was instituted on account of previous enriiity and at present no case is pending where they are accused.

Section 3 89 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 ord.er appealed. Ifhe 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 p aspects and the order directing suspelis_iori. of sentence and grant of ball should not be passed as a matter of routine.

. H

The appellate Court is duty bound to objectively assess the matter and to re.cord . reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the ins_tant 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 ..

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 .

KISHORI LAL v. RUPA [PASAYAT, J.] 631

effect of bail granted during trial looses significance when on completion of A 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 B 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 v. 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.

K.K.T.

Appeal allowed.