(Passed on day of April, 2017)

Per :Ved Prakash Sharma, J.

A Division Bench of this Court comprising two of us
(Hon'ble Shri Justice P.K. Jaiswal and Hon'ble Shri Justice
Virender Singh) while considering the prayer for suspension of
custodial sentence under Section 389(1) of the Code of Criminal
Procedure, 1973 (for short 'the Code') in Cr.A. No.1248/2005
expressing its reservation to subscribe to the legal proposition made
by a co-ordinate Bench (Gwalior Bench) of this Court in Raghuvar Cr.A. No.1248/2005 2 Singh @ Raghuveer Singh vs. State of M.P. , reported in 2015 (2)
JLJ 218, has referred the question of law to be answered by a larger
Bench. Pursuant to this Hon'ble the Chief Justice has been pleased
to constitute this Bench. The question of law referred to this Bench
is as follows :

02. A brief conspectus of the facts relevant to unfold the
controversy is as under :

03. Appellant Dashrath, vide judgment dated 20.06.2005
rendered in S.T. No.15/15 by learned First Additional Sessions
Judge, Mandsaur, was convicted for offences punishable under Section 376 & 302 of IPC, 1860 (for short 'the IPC ') for
subjecting 10 years old girl child to rape and committing her
murder. He was ordered to suffer RI for 10 years with fine of
Rs.1000/- under Section 376 of IPC and further to suffer life
imprisonment and to pay a fine of Rs.500/- under Section 302 of
IPC with usual default stipulation.

04. The conviction and sentence was challenged by the
appellant by way of criminal appeal No.1248/2005. He also made
an application for suspension of sentence and grant of bail which Cr.A. No.1248/2005 3 came to be rejected on 16.04.2007 as not pressed. Repeat
application for suspension of sentence in terms of Section 389 of
'the Code' was rejected on merits, vide order dated 02.11.2015.

05. Third application for suspension under Section 389 of
Cr.P.C. was moved primarily on the ground that the appellant is in
jail since 20.10.2004 and has thus suffered a jail sentence of more
than 11 years 9 months. It was submitted that the final hearing of
the appeal is likely to take sufficient long period, therefore, the
sentence imposed against the appellant be suspended. The learned
counsel for the appellant in support of the plea for suspension
pressed into service the decision rendered by a Division Bench of
this Court (Gwalior Bench) in Raghuvar Singh @ Raghuveer
Singh (supra), wherein it has been held that the factor of
prolonged post-conviction incarceration, bleak possibility of the
appeal coming up for final hearing in near future and the appellant
not having misused the liberty for temporary bail granted earlier
and absence of criminal antecedents outweigh the gravity of
offence and the manner of commission of the offence. In para-8 of
the report, the Bench posed to itself the following question:-

06. Referring to decisions rendered by the apex Court in Kashmira Singh vs. State of Punjab reported in (1977) 4 SCC Cr.A. No.1248/2005 4 291, Babu Singh vs. State of U.P. reported in (1978) 1 SCC 579
and Shailendra Kumar vs. State of Delhi reported in (2000) 4
SCC 178, the Court observed that an appeal being continuation of
trial, the conviction, though binding on the parties is not final
and remains subject to the appellate order as and when passed.
The Court went on observing that while considering an
application under Section 389 of 'the Code' at the initial stage of
the appeal, the merits of the case are seen, though perfunctorily, to
ascertain justifiability of release on bail; however, when
substantial part of the sentence is suffered with no foreseeable
hope of final hearing in the appeal in near future, 'the factor of
merit involving gravity of offence, nature of commission of
offence and quality of evidence on record, takes a backseat' and
instead, the factors pertaining to the post-conviction period, i.e.
'period of custody, post-conviction behaviour, instances of
misuse of bail, age, possibility of hearing of the appeal in near
future and efforts made by the counsel for convict to get the
appeal heard,' assume prominence and primacy. Accordingly, the
Bench felt inclined to suspend the sentence of life imprisonment
that was imposed against the appellant.

07. The Division Bench in Criminal Appeal No.1248/2005
has been of the view that Hon'ble the Supreme Court in a catena
of decisions has consistently held that mere fact of incarceration
for a certain period nor the fact that the trial is not likely to be
concluded in the near future either by itself or with the period of
incarceration, would not be sufficient to enlarge a person on
bail, when the gravity of the offence alleged is severe.
Resultantly, expressing its inability to subscribe to the view taken Cr.A. No.1248/2005 5 by the co-ordinate Division Bench in Raghuvar Singh @
Raghuveer Singh (supra), the matter was referred to larger
Bench.

08. Shri C.L. Yadav, learned Senior Counsel appearing on
behalf of the appellant referring to decisions of the apex Court in Kashmira Singh (supra), Hussainara Khatun vs. Home Secretary,
State of Bihar , AIR 1979 SC 1360, Smt. Akhtari Bi vs. State, AIR
2001 SC 1528, Moti Lal Saraf vs. State of Jammu & Kashmir , AIR 2007 SC 56 and Bhagwan Rama Shinde Gosai & Ors. vs.
State of Gujarat , AIR 1999 SC 1859, has submitted before us that
right to speedy trial is a fundamental right being implicit in the
broad sweep of Article 21 of the Constitution of India as interpreted
by the apex Court in Maneka Gandhi vs. Union of India reported
in AIR 1978 SC 597. It is further submitted that as held in Akhtari
Bi (supra), the trial Court's verdict does not attain finality during
the pendency of the appeal and for that purpose trial is deemed to be
continuing despite conviction of an accused. The contention is that
speedy trial being a fundamental right, the State is under an
obligation that the criminal matters particularly, criminal appeals
are disposed of expeditiously. The further submission is that since
the Criminal Appeals filed in 1998, 1999 and the year 2000 are still
waiting for their turn to be taken for final hearing, therefore, the
appellants, who are in jail and have suffered substantial part of the
sentence imposed against them, deserve to be released on bail under Section 389 of 'the Code'.

09. The learned Senior Counsel appearing on behalf of the
appellant has also referred to decisions of the apex Court in Kamal
vs. State of Haryana , (2004) 13 SCC 526, A.E. Premanand vs. Cr.A. No.1248/2005 6 Escorts Finance Ltd. & Ors.,(2004) 13 SCC 527 and Salim Javed
vs. State of Rajsthan, (2006) 9 SCC 602, where Hon'ble the apex
Court has been pleased to grant suspension on account of the
imprisonment suffered by appellant in cases where the appellant
was sentenced to undergo imprisonment for a term. Noticeably,
none of these cases relates to sentence of life imprisonment.

10. Per contra, referring to the decisions of the apex Court in Kishori Lal vs. Rupa and others reported in ( 2004) 7 SCC 638,
Anil Ari vs. State of West Bengal , ( 2009) 11 SCC 363 and State of
Haryana vs. Hasmat , (2004) 6 SCC 175, it is submitted by Shri
Sunil Jain, learned Additional Advocate General that in exercise of
powers under Section 389 of 'the Code' the appellate Court has to
decide about the question of suspension of sentence on the basis of
all relevant aspects of the case including seriousness of the crime
and that no straight jacket formula can be laid down with regard to
suspension of sentence.

11. Learned Senior Counsel Shri P.K. Saxena has also
addressed the Court. It is submitted by him that this Court cannot re-
write the provisions of Section 389 of 'the Code' by formulating
that an appellant who has served 12 years or more imprisonment,
being substantive part of the sentence imposed against him, is
entitled for suspension of sentence and release on bail. The
contention is that prescribing any time limit in this regard will
amount to judicial legislation which is not permissible under the
scheme of the things. It is further submitted that though an appeal is
required to be disposed of within a reasonable time, however, there
is difference between a person facing a trial who carries with him a
presumption of innocence and a person who has been found guilty Cr.A. No.1248/2005 7 and has preferred appeal against conviction in which case the
presumptions of innocence is no more available. The contention is
that prescription of any time limit may rather prove counter-
productive in the sense that those accused who on merits of the case
deserve suspension of their sentence within a year or so of filing of
appeal, in such a situation will have to wait for 12 years and thus,
the remedy may prove worst than the malady itself. Lastly, it is
submitted that the jurisdiction under Section 389 (1) of 'the Code'
cannot be bracketed within any airthmetical formula as it cannot be
said that every person who has challenged the conviction is
ultimately going to be acquitted.

12. We have bestowed our anxious consideration to the
submissions raised at the Bar and have gone through the record.

13. Section 389 of 'the Code', which falls under Chapter
XXIX, reads as follows:

[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:

14. Inordinate delay in disposal of criminal appeals at the
level of High Court has been a perennial problem faced by the
judicial system and time to time the apex Court has attempted to
address the same. Expressing its deep concern over delay in
disposal of Criminal Appeals, the apex Court in the case of
Akhtari Bi (supra), observed as under (para-5) :

15. In Moti Lal Saraf (supra), the apex Court observed that
speedy trial is one of the facets of the fundamental right to life and
liberty enshrined in Article 21 of the Constitution of India and the
law must ensure 'reasonable, just and fair' procedure which has a
creative connotation after the decision in Maneka Gandhi 's case
(supra).

16. In Kashmira Singh (supra), another case relied upon by
the learned counsel for the appellant, the apex Court in para-2 of the
report had expressed its concern in the following words :

Hon'ble the apex Court in view of the aforesaid further
held that:

17. Another case on which strong reliance has been placed
by the learned Counsel for the appellants is that of Babu Singh vs.
State of U.P. , (1978) 1 SCC 579, wherein the apex Court
observed, that, the significance and sweep of Article 21 of the
Constitution make the deprivation of liberty a matter of grave
concern and permissible only when the law authorising it is
reasonable, even-handed and geared to the goals of community
good as spelt out in Article 19.

18. In Surinder Singh alias Shingara Singh vs. State of
Punjab , AIR 2005 SC 3669, Hon'ble the apex Court had an
occasion to consider the sweep and objective of the observations
made by it in the cases of Kashmira Singh (supra), Akhtari Bi
(supra) and Babu Singh (supra) and observed that none of the
decisions lay down any invariable rule for grant of bail on
completion of a specified period of detention in custody as in a
discretionary matter, like grant or refusal of bail, it would be
impossible to lay down any invariable rule or evolve a strait jacket
formula. Relevant observations run as under:

(Emphasis supplied)

19. In Kishori Lal Vs. Rupa and Others , (2004) 7 SCC
638, the apex Court delineated the factors to be taken into
consideration while exercising jurisdiction under Section 389 of
'the Code' in cases involving serious offences like murder etc. The
relevant observations run as under:

20. Reiterating the aforesaid in Anil Ari vs. State of West
Bengal , (2009) 11 SCC 363, the apex Court observed thus:

21. Recently in Atul Tripathi vs. State of U.P. and another ,
(2014) 9 SCC 177, the apex Court summing up the legal parameters Cr.A. No.1248/2005 14 regarding exercise of discretionary power under section 389(1) of
'the Code' stressed that the Court is required to judiciously consider
all the relevant factors including gravity of offence and the nature of
the crime. The relevant observations in this regard run as under:

22. In State of Haryana v. Hasmat , (2004) 6 SCC 175, the
apex Court again held as under:

23. The aforesaid view has consistently been held by the
apex Court in most of the decisions on the point including in the
case of Vasant TukaramPawar Vs. State of Maharashtra , ( 2005) 5
SCC 281 and Gomti Vs. Thakurdas and Others , (2007) 11 SCC
160 and SidharthVashisht @ Manu Sharma Vs.The State (N.C.T.
of Delhi), (2008) 5 SCC 230.

24. In Sidharth Vashisht @ Manu Sharma Vs. The State
(N.C.T. of Delhi ), (2008) 5 SCC 230, the apex Court taking due
note of the observations made in the cases of Kashmira Singh (supra) and Babu Singh (supra), the cases relied on by the learned
Counsel for the appellant, so also referring to few other decisions on
the point had held as under:

25. Clearly, as held by Hon'ble the apex Court in State of
Punjab vs. Deepak Mattu , (2007) 11 SCC 319 & 2008 Cr.L.J. 322,
possible delay in disposal of the appeal and the fact that there are
arguable points may not by itself be sufficient to grant suspension of
a sentence.

26. To have a clearer perspective of the issue it may be
worthwhile to refer to few of the pronouncements of the apex Court,
wherein applicability of Section 389 of 'The Code' came for
consideration.

27. In Akhilesh Kumar Sinha vs. State of Bihar , (2000) 6
SCC 461, the appellant who was convicted u/s. 302 / 34 of IPC, in
appeal applied for suspension of sentence or for taking up his appeal
for out of turn hearing. The High Court of Patna declined the prayer
for out of turn hearing so also the prayer for suspension of sentence.
In an appeal against this order, the apex Court refusing to interfere
in the matter observed as under:

28. In Vijay Kumar vs. Narendra , (2002) 9 SCC 364 the
apex Court reversing an order of suspension passed in a case where
the appellant was convicted u/s. 302 / 34 of the IPC, held as under :

29. In Ramji Prasad vs. Rattan Kumar Jaiswal , (2002) 9
SCC 366, the apex Court held that the normal practice in cases
where a person has been found guilty by the trial Court u/s. 302 of
the IPC is not to suspend the sentence and it is only in exceptional
cases that the benefit of suspension of sentence can be granted.

30. In State of Haryana vs. Hasmat , (2004) 6 SCC 175, the
apex Court reiterated that there is a distinction between the bail and
the suspension of sentence. The apex Court observed that one of the
essential ingredients of Section 389 is the requirement of the
appellate Court to record reasons in writing for ordering suspension
of execution of sentence or order appealed. It was further observed
that the requirement of recording reasons in writing clearly indicates
that there has to be a 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 apex Court in para
9 of the report quoted with approval the view expressed earlier in
Vijay Kumar vs. Narendra, (2002) 9 SCC 364 and Ramji Prasad v.

Rattan Kumar Jaiswal, (2002) 9 SCC 366 to the effect that in cases
involving conviction u/s. 302 of IPC, it is only in exceptional cases
that the benefit of suspension of sentence can be granted. Para-9 of
the report runs as under :

31. In Kishori Lal vs. Rupa , (2004) 7 SCC 638, again a
matter involving suspension of sentence in a case relating to murder,
the apex Court did not approve the view taken by the High Court
that custodial sentence can be suspended only on account of absence
of allegation regarding misuse of liberty of bail during trial. The
relevant observations, which find place in Para 6, run as under :

It was reiterated that in cases involving conviction u/s. 302 of
IPC, it is only in exceptional cases that the benefit of suspension can
be granted.

32. In State of Maharashtra vs. Madhukar Wamanrao
Smarth , (2008) 5 SCC 721, the apex Court referred to the
parameters delineated in Kishori Lal vs. Rupa , (2004) 7 SCC 638 to
be observed by the High Court while dealing with an application for
suspension of sentence and grant of bail and reiterated the view
taken in Vasant Tukaram Pawar vs. State of Maharashtra , (2005)
5 SCC 281. The relevant part of the report runs as under :-

33. Recently, in Hussain and another vs. Union of India,
(Criminal Appeal No.509/2017 , order dated 09/03/2017), the issue
with regard to suspension of sentence of an appellant, who was in
custody since 11.01.2009 was agitated before the apex Court
contending that regard being had to the long period of custody, he
deserves to be released on bail. The apex Court, instead of granting
suspension, directed disposal of appeal within a period of six
months. Apart this, exhaustive directions with regard to speedy trial
of cases including criminal appeal pending in the High Court were
also issued.

34. From the aforesaid, it is abundantly clear that the apex
Court has consistently taken the view that, while dealing with
question of suspension under Section 389 of 'The Code', the Court
is required to judiciously take into consideration 'all the relevant
factors', like - gravity of offence, nature of crime, manner in which
it was committed, age, criminal antecedents of the convict and
impact of public confidence in Court. It further clearly emerges that
sole factor that the appellant was on bail during trial and that there is
no allegation of misuse of liberty or that the appellant's appeal is
likely to take long time in its final disposal by itself cannot be
sufficient to grant suspension.

35. In Siddarth Vashist ' case (supra), in an admitted
criminal appeal pending before the apex Court, the appellant prayed
for early hearing of the appeal or grant of suspension. Reliance in
this regard was also placed on the decisions rendered by the apex
Court in Kashmira Singh 's case (supra), Babu Singh's case
(supra) and Akhtari Bi's case (supra). Declining the prayer for Cr.A. No.1248/2005 21 suspension the apex Court held that the Court while considering the
prayer for bail in a case involving serious offence like murder,
should consider 'all the relevant factors' like nature of accusation
made against the accused, manner in which the crime alleged to
have been committed, the gravity of offence, desirability of
releasing the accused on bail after he has been convicted for
committing serious offence of murder etc. It was reiterated that
normal practice in such cases has been not to suspend the sentence
and it is only in exceptional cases, that the benefit of suspension can
be granted.

36. No doubt, speedy trial is a fundamental right implicit in Article 21 of the Constitution of India, however, the Court
considering the question of bail is required to struck a balance
between right of the individual and societal interest and the bare fact
that the appellant has suffered substantial part of sentence cannot be
the sole criteria for grant of suspension. Needless to say that there
may be cases, including under Section 302 of IPC where sentence is
suspended on merits within a year or two. Again, contrarily there
may be cases, where in view of the gravity of the offence and the
manner in which it was committed, a Court of law, may find it
difficult to grant suspension. It was for, preciously, this reason that
the apex Court in Surinder Singh @ Shingara Singh 's case
(supra), referring to observations made in the Kashmira Singh's
case (supra), has held that such observations and similar
observations found in some of the other decisions of the Court only
lay down broad guidelines and that none of the decisions lay down
any invariable rule for grant of bail on completion of a specified
period of detention in custody and indeed, in a discretionary matter, Cr.A. No.1248/2005 22 like grant or refusal of bail, it would be impossible to lay down any
invariable rule or evolve a strait jacket formula and that the Court
must exercise its discretion having regard to all the relevant facts
and circumstances. It was in these premises that a Full Bench of
Rajasthan High Court, Mohd. Mohsin Khan @ Bhooria versus
State of Rajasthan , 2013 Cr.L.J. 4156 dealing with an identical
issue concluded in para-29 that merely because a convict has served
five years or one half of the sentence including remission would not
'ipse dixit' make him or her entitled to be released on bail as a
matter of right.

37. In the aforesaid premises we are of the considered view
that proposition of law laid down by the Division Bench of this
Court in Raghuwar Singh 's case (supra) to the effect that where
substantial part of the sentence is suffered with no foreseeable hope
of final hearing of the appeal in near future, the factor of the merits
involving gravity of offence, nature of commission of offence and
quality of evidence on record take a backseat, cannot be held to be a
good law.

38. As a fallout of the aforesaid discussion and analysis, we
are of the considered view that sentence for life imprisonment or
imprisonment for any lesser term of a convict cannot be suspended
'solely' on the ground of his having served sentence of any
particular period or one half of the maximum sentence, inclusive or
exclusive of remission, therefore, the view taken in this regard by
the Division Bench of this Court in Raghuwar Singh 's case (supra)
does not reflect correct position of law.

39. Accordingly, we answer the reference as under:

Reference is answered, accordingly.