OMPRAKASH SAHNI versus JAI SHANKAR CHAUDHARY & ANR. ETC. on 2 May 2023

[2023] 5 S.C.R. 141

OMPRAKASH SAHNI

v.

JAI SHANKAR CHAUDHARY & ANR. ETC.

(Criminal Appeal Nos. 1331-1332 of 2023)

MAY 02, 2023

[M. R. SHAH AND J. B. PARDIWALA, JJ.]

Code of Criminal Procedure, 1973 – s. 389 – The threerespondents were convicted for the murder of the appellant’s brotherby the Trial Court and sentenced to life imprisonment – The orderof conviction and sentence passed by Trial Court was challengedin appeal by the respondents before the High Court – Respondentsprayed before the High Court that they be released on bail pendingthe final disposal of their appeals by suspending the substantiveorder of sentence of life imprisonment – High Court suspendedsentence and ordered their release on bail – On appeal, held: Theendeavour on the part of the Court should be to see as to whetherthe case presented by the prosecution and accepted by the TrialCourt can be said to be a case in which, ultimately the convict standsfor fair chances of acquittal – While undertaking the exercise toascertain whether the convict has fair chances of acquittal, what isto be looked into is something palpable – Something which is veryapparent or gross on the face of the record, on the basis of which,the Court can arrive at a prima facie satisfaction that the convictionmay not be sustainable – The Appellate Court should not reappreciatethe evidence at the stage of s.389 and try to pick up few lacunas orloopholes here or there in the case of the prosecution, it is not correctapproach – In the instant case, High Court has gone into the issueslike political rivalry, delay in lodging the FIR, some over-writingsin the First Information Report etc. – All these aspects, will have tobe looked into at the time of the final hearing of the appeals filedby the convicts – High Court committed a serious error in suspendingthe substantive order of sentence of the convicts and their releaseon bail pending the final disposal of their criminal appeals – Orderof High Court set aside – Convicts ordered to surrender.

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142SUPREME COURT REPORTS

AAllowing the appeals, the Court

HELD:1. In Vijay Kumar, it was held that in consideringthe prayer for bail in a case involving a serious offence like murderpunishable under Section 302 of the IPC, the court shouldconsider the relevant factors like the nature of accusation madeBagainst the accused, the manner in which the crime is alleged tohave been committed, the gravity of the offence, and thedesirability of releasing the accused on bail after they have beenconvicted for committing the serious offence of murder. [Para31][162-G]

C2. The endeavour on the part of the Court, therefore, shouldbe to see as to whether the case presented by the prosecutionand accepted by the Trial Court can be said to be a case in which,ultimately the convict stands for fair chances of acquittal. If theanswer to the above said question is to be in the affirmative, as anecessary corollary, if ultimately the convict appears to be entitledDto have an acquittal at the hands of this Court, he should not bekept behind the bars for a pretty long time till the conclusion ofthe appeal, which usually take very long for decision and disposal.However, while undertaking the exercise to ascertain whetherthe convict has fair chances of acquittal, what is to be looked intoEis something palpable. To put it in other words, something whichis very apparent or gross on the face of the record, on the basisof which, the Court can arrive at a prima facie satisfaction thatthe conviction may not be sustainable. The Appellate Court shouldnot reappreciate the evidence at the stage of Section 389 of theCrPC and try to pick up few lacunas or loopholes here or there inFthe case of the prosecution. Such would not be a correct approach.[Para 33][163-B-D]

3. In the case on hand, what the High Court has done issomething impermissible. High Court has gone into the issueslike political rivalry, delay in lodging the FIR, some over-writingsGin the First Information Report etc. All these aspects, will haveto be looked into at the time of the final hearing of the appealsfiled by the convicts. Upon cursory scanning of the evidence onrecord, this court is unable to agree with the contentions comingfrom the Senior Counsel for the convicts that, either there is H

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absolutely no case against the convicts or that the evidenceagainst them is so weak and feeble in nature, that, ultimately inall probabilities the proceedings would terminate in their favour.For the very same reason this court was unable to accept thecontention coming from the convicts through their Senior Counselthat, it would be meaningless, improper and unjust to keep thembehind the bars for a pretty long time till they are found not to beguilty of the charges. [Para 34][163-E-G]

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4. In the overall view of the matter, this Court is convincedthat the High Court committed a serious error in suspending thesubstantive order of sentence of the convicts and their releaseon bail pending the final disposal of their criminal appeals. [Para35][163-H]

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Rajesh Ranjan Yadav Alias Pappu Yadav v. CBI (2007)1 SCC 70 : [2006] 9 Suppl. SCR 40; Ash Mohammadv. Shiv Raj Singh Alias Lalla Babu and Another (2012)9 SCC 446 : [2012] 7 SCR 584; Bhagwan Rama ShindeGosai and Others v. State of Gujarat (1999) 4 SCC421 : [1999] 3 SCR 545; Sidhartha Vashisht Alias ManuSharma v. State (NCT of Delhi) (2008) 5 SCC 230 :[2008] 8 SCR 220; Atul Tripathi v. State of UttarPradesh and Others (2014) 9 SCC 177 : [2014] 14SCR 1188 – relied on.

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Kishori Lal v. Rupa and Others (2004) 7 SCC 638 :[2004] 4 Suppl. SCR 628; Vijay Kumar v. Narendraand Others (2002) 9 SCC 364; Ramji Prasad v. RattanKumar Jaiswal and Another (2002) 9 SCC 366; VasantTukaram Pawar v. State of Maharashtra (2005) 5 SCC281 : [2005] 3 SCR 630; Gomti v. Thakurdas and Others(2007) 11 SCC 160 : [2007] 5 SCR 90 – referred to.

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[2023] 5 S.C.R.

BCRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 1331-1332 of 2023.

From the Judgment and Order dated 16.09.2022 of the High Courtof Judicature at Patna in CRADB Nos. 322 and 411 of 2021.

R. Chandrachud, Ms. Fauzia Shakil, Agastya Sen, Advs. for theCAppellant.

V. K. Shukla, Sr. Adv., Rakesh Kumar, Shailendra Mani Tripathi,Chand Qureshi, C. Thangaraja, S. Krishnamoorthy, K. Kumaravadivel,Manish Kumar, Advs. for the Respondents.

DThe Judgment of the Court was delivered by

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 orderEpassed by the High Court of Judicature at Patna in Criminal Appeal(DB) No. 322 of 2021 and Criminal Appeal (DB) No.411 of 2021respectively by which, the High Court suspended the substantive orderof sentence of life imprisonment imposed by the Trial Court on therespondent Nos. 1, 3 and 4respectively herein (convicts) and orderedtheir release on bail pending the final disposal of the two criminal appealsFreferred to above.

FACTUAL MATRIX

2. It appears from the materials on record that the respondentsNos. 1, 3 and 4 respectively herein alongwith six other co-accused wereput to trial in the Court of Additional Sessions Judge-VII, Vaishali, Hajipur,GDistrict: Vaishali at Hajipur (Bihar) in Sessions Trial No. 280/2019 forthe offences punishable under Sections 302, 120-B, 506 respectivelyread with Section34 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,HAbhay 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 beacquitted.

4. The respondents Nos. 1, 3 and 4 respectively herein went inappeal before the High Court of Judicature at Patna, challenging theorder of conviction and sentence passed by the Trial Court.

5. The case of the prosecution narrated by the Trial Court in itsjudgment dated 12.03.2021 is as under:

“The F.I.R in the instant case had been registered on14.08.2018, on the basis of written application of informantOm Prakash Sahni, alleging therein that the informant OmPrakash Sahni on 13-08-2018 at about 01:00 P.M. alongwithhis younger brother Manish Kumar, the Block Pramukh,Jandaha reached the Office of Block Pramukh, situated atblock Jandaha by their alto car. Informant’s brother went inhis chamber. The driver of the B.D.O. came in his car andtold thePramukh that B.D.O. has called him and on suchinformation the Block Pramukh Manish Kumar went to theresidence of B.D.O. in the B.D.O’s car. After sometime thePramukh came back in the same vehicle and as he washeading towards his chamber at about 03:00 P.M., theaccused Jai Shankar Chaudhary and Abhay Kumar came andopened fire on informant’s brother,the Block Pramukh uponthe exhortation by accused Ram Babu Sahni to kill him. Theinformant’s brother fell on the ground and both the accusedwaving their pistols, fled away on a motorcycle towardsMahua road. The other two accused Ram Babu Sahni andBinod Chaudhary also fled away from the place of occurrenceon one another motorcycle, towards the same direction. TheF.I.R. further states that the informant and the Pramukh’sdriver namely Anil Kumar alongwith certain others werepresent at the time of occurrence. They took him to the clinicof doctor Bindu Jha and on his reference, they took the injuredto 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 thepolice also reached there and carried out further proceeding.The F.I.R. also states that the election of block pramukh was A

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SUPREME COURT REPORTS

Aheld on 02-08-2018 and the Pramukh won the election. Theinformant in the F.I.R. also states that Umesh Singh Kushwaha,M.L.A., Mahnar, Binod Chaudhary s/o Ram LakhanChaudhary, Ajeet Kumar s/o Ram Babu Sahni Village DulaurP.S. Jandaha, Kundan Sahni (Prakhand Shikshak) s/o RamNandan Sahni Vill Narharpur, Randhir Kumar S/o LateBMasudan Prasad Singh Vill Narharpur, Ranjeet Kumar S/oRam Briksh Singh Viii Narharpur, all from P.S. Jandaha andAjay Thakur (Teacher) Sankul Sadhan Sevi, Jandaha Vill NariKhurd P.S. Patepur Dist Vaishali had earlier threatened theinformant at Bindi Chowk Road (north from Suresh Chowk)Cthat they would not allow informant’s brother to win theelection and in the event, he wins, they would not let him live.The informant also states that these persons threatened himmany times and he informed his brother of such fact. Thepresent Prakhand Siksha Padadhikri, Jandaha alsothreatened that he should communicate to the Pramukh forDnot getting involved in the recruitment of Prakhand Shikshak,otherwise he may face dire consequences. The informant isunder the belief that all the abovereferred persons inconspiracy, have committed the murder of informant’s brotherManish Kumar.”

E6. In the course of the trial, the prosecution examined ten witnessesas under:

P.W. 1 Raj Kumar Sahni,

P.W. 2 Anil Kumar Sahni,

FP.W 3 Rup Kala Devi,

P.W. 4 Dr. Shashidhar Kumar,

P.W. 5 Lal Babu Sahni,

P.W. 6 Laldeo Sahni,

GP. W. 7 Om Prakash Sahni/ informant,

P. W. 8 Saroj Kumar Singh,

P.W. 9 Shobhakant Paswan (Investigating Officer) and P.W. 10 Sunil Kumar Singh (Investigating Officer).

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7. The Trial Court, upon evaluation of the oral as well asdocumentary evidence on record, in the final analysis observed in paras40 and 41 respectively as under:

“40. On considering the submissions made by learned counselof parties and the conjoint perusal of prosecution evidenceincluding the cross-examination done by learned counsels fordefence this court finds that the prosecution has led credibleevidence that on 13-08-2018, at about 03:00 PM at Jandahablock, the accused Ram Babu Sahni and Binod Chaudharyexhorted Jai Shankar Chaudhary and Abhay Kumar Sahnito kill Manish Sahni. On such provocation, Jai ShankarChaudhary and Abhay Kumar Sahni shot the bullet overManish Sahni. He was then taken to doctor Bindu Jha inJandaha and was referred from there to Hajipur. He was takento Hajipur Ganpati Hospital by an ambulance, where thedoctor declared him dead. As per the evidence of PW-7/informant, the Manish Sahni alongwith him and the driverP.W. 2 reached the block Jandaha at about 01:00 P.M., theywere sitting in his chamber, when the B.D.O. called him throughhis driver and he went to meet the B.D.O. to his resident fromthe B.D.O’s vehicle. When he arrived back at about 03:00P.M., as he was heading towards his chamber, the accusedRam Babu Sahni and Binod Chaudhary exhorted Jai ShankarChaudhary and Abhay Kumar Sahni to kill Manish Sahni.On such provocation, Jai Shankar Chaudhary and AbhayKumar Sahni shot the bullet over Manish Sahni and he fellon the ground. All the four accused fled away from northerngate towards Mahua road. Manish Sahni was then taken todoctor Bindu Jha in Jandaha and was referred from there toHajipur. He was taken to Hajipur Ganpati Hospital by anambulance, where the doctor declared him dead. His autopsywas performed at Sadar Hospital, Hajipur. The reason behindthe occurrence in question is that the accused Jai ShankarChaudhary was earlier elected the block Pramukh, but wasdefeated by Manish Sahni in no confidence motion. TheManish Sahni then became Block Pramukh. All the accusedpersons are said to conspire for commission of the allegedoffence. The P.W. 1 Raj Kumar Sahni in his evidence hasproved that the Pramukh Manish Sahni came from B.D.O’s AB

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vehicle and was heading towards his chamber, when accusedJai Shankar alongwith another opened fire over ManishSahni. He has stated that it was Jai Shankar, who shot ManishSahni. P.W. 2, the driver of Block Pramukh namely Anil KumarSahni also proved that Manish Sahni arrived from B.D.O’svehicle. The accused Jai Shankar Chaudhary and AbhayKumar Sahni were already present there. The other accusedRam Babu Sahni and Binod Chaudhary reached there andsaid “kya dekhte ho goli maaro”. Jai Shankar Chaudharyshot the bullet and thereafter Abhay Kumar shot the otherbullet. The Pramukh fell on the ground and the informantand the witness P.W.2 are said to take him to hospital atJandaha, from where he was referred to Hajipur SadarHospital, but he died on the way. P.W. 3 the wife of deceasedis not an eye witness. However, she has testified the death ofher husband by accused persons in the manner as stated bywitnesses. In addition to these facts, she has also stated thatwhen her husband won the election, he was given threat forlife and she had advised her husband to remain alert. P.W. 5in his statement-in-chief has proved the date and time ofoccurrence i.e., 13-08-2018 at 03:00 P.M. He, an eye witnessalso testifies the prosecution story that the accused JaiShankar Chaudhary and Abhay Kumar opened fire overManish Sahni on the provocation and exhortation by RamBabu 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 ofthe occurrence and testifies that Binod Chaudhary and RamBabu came by a bike and exhorted Jai Shankar Chaudharyand another person, whom he did not identify. On suchexhortation and provocation, Jai Shankar Chaudhary andthe other one opened fire over Manish Sahni. P.W. 8 SarojKumar Singh also claims to be an eye witness and testifiesthe fact that on the instigation of Binod Chaudhary, theaccused Jai Shankar Chaudhary opened fire over ManishSahni and he does not identify the other person, who alsoshot bullet over Manish Sahni. However, the date ofoccurrence has been contradicted by PW-8 to be 30.08.2018.The accused Binod Chaudhary whose name reflects in the

evidence repeatedly is not facing the instant trial before court.The doctor has proved the postmortem report and the injuriesthereon are the two entry wounds, one each over left upperchest and over epigastrium alongwith two exit wounds, oneeach on right sub costal region impugned posterior axillaryline and the other over right lumbar region in posterior axillaryline. The two investigating officers who carried out theinvestigation, have proved genuineness of the investigationprocess as has been discussed in the preceding paragraphs.The defence could not bring such material or contradictionsor any other evidence on record to falsify the facts placedand proved by prosecution.

41. Hence, on the basis of material and the evidence bothoral and documentary, as available on record, this courtarrives at conclusion that the prosecution has proved its caseagainst accused Jai Shankar Chaudhary, Abhay Kumar aliasAbhay Sahni and Ram Babu Sahni, beyond reasonable doubtsthat on exhortation of Ram Babu Sahni, the other two accusedJai Shankar Chaudhary and Abhay Kumar @ Abhay Sahniopened fire over Manish Sahni, causing his death and therebycommitting his murder. This court finds them guilty ofcommitting the murder of Manish Sahni in furtherance of theircommon intention.”

8. The three convicts before us i.e., the respondents Nos. 1, 3 and4 respectively prayed before the High Court that they be released onbail pending the final disposal of their appeals by suspending thesubstantive order of sentence of life imprisonment.

9. The High Court suspended the substantive order of sentenceof all the three convicts and ordered their release on bail vide theimpugned order dated 16.09.2022. The High Court observed thus:

“By the impugned judgment and order of conviction dated12.03.2021 and order of sentence dated 15.03.2021 passedby the learned Additional Sessions Judge-VII, Vaishali atHajipur, in Sessions Trial No. 280/2019 arising out ofJandaha P.S. Case No. 202/2018, the appellant has beenconvicted and sentenced as under:

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75 per cent of the fine amount has been ordered to be paid tothe widow of deceased Manish Sahni, namely, Rup Kala Deviand 25 per cent of the amount has been ordered to be paid tothe 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 firstproviso to Section 389(1) of the Criminal Procedure Code.

We have heard Mr. Vasant Vikas, learned counselappearing on behalf of the appellant in Criminal Appeal (DB)No. 322 of 2021; Mr. Sanjay Singh, learned Senior Counselappearing on behalf of the appellant in Criminal Appeal (DB)No. 411 of 2021 and learned Additional Public Prosecutorfor the State.

Learned counsel appearing on behalf of the appellantshave submitted that for the occurrence said to have takenplace at 03:00 pm, at a public place, on 13.08.2018, the FirstInformation Report came to be registered on 14.08.2018, basedon written report of the informant (P.W.-7) submitted at 01:00pm. The informant has claimed to be an eye-witness of theoccurrence. However, there is no explanation for the latesubmission of the written report, naming these appellants as the assailants. It has been argued that it is evident from theFirst Information Report that political rivalry between thedeceased and these appellants has been disclosed as thereason why the deceased was killed by these appellants. Theyaccordingly submit that disclosure of names of these appellantsin the First Information Report, as the main assailants, is anafterthought and in that background, the late registration ofFirst Information Report casts a serious doubt on the veracityof the prosecution’s case. It has, further, been argued thatthough (P.W.-7), the informant, has claimed to be an eye-witness to the occurrence, who had carried the deceased inthe injured condition to a nearby hospital and thereafter toSadar hospital, after the deceased was declared dead in aprivate hospital; his own deposition contradicts this versionas asserted in the First Information Report inasmuch as inresponse to a question during the course of cross-examination,he admitted that he had not gone to the Sadar hospital withthe deceased. It has further been argued that though theappellants were produced during the course of the trialthrough video conference from the jail, but there is no evidencethat the prosecution’s witnesses identified these appellantsduring the course of the trial.

Learned Additional Public Prosecutor opposingappellants’ prayer for bail has submitted that since theappellants are the main assailants, as disclosed in the FirstInformation Report, which has been substantiated by all theeye-witnesses during the course of the trial, who have beenconsistent in their depositions and political rivalry betweenthe deceased and these appellants, being an admitted fact,such animosity adds credence to the deposition of the eye-witnesses.

We have perused the impugned judgment and order ofthe trial court. We have given our anxious consideration torival submissions advanced on behalf of the parties. We haveperused the original copy of the First Information Reportavailable with the lower court records from which it is manifestthat there have been over-writings as regards the date whenthe said written report of the informant (P.W.-7) was submittedin the police station.

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It is the prosecution’s case, as disclosed in the FirstInformation Report as also set up at the trial, that theoccurrence had taken place at 03:00 pm on 13.08.2018 inthe Block office. The deceased was Pramukh of the said block.

It has been asserted in the First Information Report thatwhen the informant and the deceased were about to enterinto his (deceased’s) chamber in the Block office, appellantJai Shankar Chaudhary and Abhay Kumar opened fire onthe instigation of accused Ram Babu Sahani. The informantand others are said to have taken the deceased, in injuredcondition, to a private hospital, where he was declared dead.The dead body of the deceased was thereafter taken to Sadarhospital, where the inquest report was prepared by the policeofficer and post-mortem was also carried out on the samedate, i.e., 13.08.2018. In the aforesaid background, we findsubstance in the submission made on behalf of the appellantsthat there was no cogent explanation for the informant tohave 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 betruthful, particularly in view of the evidence of the prosecutionwitnesses to the effect that the body of the deceased was takenby villagers to the hospital and not by the informant.

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In the abovementioned peculiar facts and circumstancesof the case, in our view, inordinate delay in filing of the writtenreport leading to registration of First Information Reportappears to be a valid ground for doubting the case of theFprosecution, for the purpose of exercise of discretion underArticle 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 releaseon bail is allowed.

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Let the appellants, namely, Jai Shankar Chaudhary [InCriminal 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 ofappeal on furnishing bail bond of Rs. 10,000/- (Ten Thousand)with two sureties of the like amount each to the satisfaction H

of learned Additional Sessions Judge-VII, Vaishali at Hajipur,in Sessions Trial No. 280 of 2019 arising out of Jandaha P.S.Case No. 202of2018.

The sentence shall remain suspended in the meanwhile.Realisation of fine shall also remain stayed.”

10. The original first informant (brother of the deceased) beingaggrieved and dissatisfied with the aforesaid order passed by the HighCourt has come up in appeals before us.

SUBMISSIONS ON BEHALF OF THE APPELLANT

11. Mr. R. Chandrachud, the learned counsel appearing for theappellant vehemently submitted that the High Court committed a seriouserror in passing the impugned order thereby releasing the three convictson bail pending final disposal of their respective appeals by suspendingthe substantive order of their sentence,in exercise of power under Section389 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’).

12. The learned counsel would submit that once the accused stoodconvicted for a very serious offence like murder, the presumption ofinnocence would no longer exist and the High Court is expected to bevery slow in granting bail. He submitted that the High Court whileconsidering the plea of the three convicts for suspension of substantiveorder of sentence has virtually appreciated the evidence. The High Courtcould not have gone into the issues like over-writings in the FirstInformation Report, inordinate delay in lodging the First InformationReport etc. while considering the plea of the convicts for suspension ofsentence of life imprisonment.

13. The learned counsel would submit that the entire case of theprosecution is based on ocular evidence. The Trial Court having believedand accepted the version of the appellant herein, who is one of theeyewitnesses to the incident, the High Court could not have so lightlyand casually suspended the substantive order of sentence of lifeimprisonment.

14. In such circumstances referred to above, the learned counselappearing for the appellant prayed that there being merit in his appeals,those may be allowed and the impugned common order passed by theHigh Court may be set aside.

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154SUPREME COURT REPORTS

ASUBMISSIONS ON BEHALF OF THE RESPONDENTNOS. 1, 3 AND 4 RESPECTIVELY (CONVICTS)

15. Mr. V.K. Shukla, the learned Senior Counsel appearing forthe convicts, on the other hand, vehemently opposed the appeals,submitting that no error not to speak of any error of law could be said toBhave been committed by the High Court in passing the impugned ordersuspending the substantive order of sentence, imposed on the respectiveconvicts by the Trial Court. He would submit that the entire case put upby the prosecution is highly doubtful and politically motivated. Theprosecution has suppressed the true origin of the occurrence. He wouldsubmit that his clients have been falsely implicated in the alleged crime.C

16. The learned Senior Counsel further submitted that this Courtshould be slow in exercise of its power under Article 136 of theConstitution while looking into a discretionary order, passed by the HighCourt under Section 389 of the CrPC. The impugned order passed bythe High Court cannot be termed as absolutely vague or perverse and, inDsuch circumstances, this Court may not disturb the impugned order.

17. In the last, the learned Senior Counsel submitted that it willtake years by the time, the appeals come up for final hearing and for allthat period of time his clients would be languishing in jail. He wouldsubmit that there are very fair chances of his clients getting acquitted inEthe criminal appeals and in such circumstances, there is nothing wrong ifthey are allowed to remain on bail, pending the final disposal of theirrespective criminal appeals.

18. In such circumstances referred to above, the learned SeniorCounsel prayed that there being no merit in the appeals, those may beFdismissed.

ANALYSIS

19. Having heard the learned counsel appearing for the partiesand having gone through the materials on record, the only question thatfalls for our consideration is whether the High Court committed anyGerror in passing the impugned order?

SECTION 389 OF THE CRPC AND THE LAW ON THESUSPENSION OF SENTENCE:

20. Section 389 of the CrPC reads thus:

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“389. Suspension of sentence pending the appeal; release ofappellant on bail.—(1) Pending any appeal by a convictedperson, the Appellate Court may, for reasons to be recordedby it in writing, order that the execution of the sentence ororder appealed against be suspended and, also, if he is inconfinement, that he be released on bail, or on his own bond.

Provided that the Appellate Court shall, before releasingon bail or on his own bond a convicted person who isconvicted of an offence punishable with death or imprisonmentfor life or imprisonment for a term of not less than ten years,shall give opportunity to the Public Prosecutor for showingcause in writing against such release:

Provided further that in cases where a convicted personis released on bail it shall be open to the Public Prosecutor tofile an application for the cancellation of the bail.

(2) The power conferred by this section on an AppellateCourt may be exercised also by the High Court in the case ofan appeal by a convicted person to a Court subordinatethereto.

(3) Where the convicted person satisfies the Court bywhich he is convicted that he intends to present an appeal,the Court shall,—

(i) where such person, being on bail, is sentenced toimprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has beenconvicted 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 suchperiod as will afford sufficient time to present the appeal andobtain the orders of the Appellate Court under sub-section(1), and the sentence of imprisonment shall, so long as he isso released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced toimprisonment for a term or to imprisonment for life, the timeduring which he is so released shall be excluded in computingthe term for which he is so sentenced.”

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A21. Suspension conveys postponement or temporarily preventinga state of affairs from continuing. According to the Black’s LawDictionary (Seventh Edition), the word ‘suspend’ means, inter alia, tointerrupt; postpone; defer. The Black’s Law Dictionary (Seventh Edition)describes the word ‘suspension’ to mean, inter alia, an act of temporarilydelaying, interrupting or terminating something. Attributing the sameBmeaning to the word ‘suspend’ as pointed out above, the New OxfordDictionary of English (1998 Edition) describes suspend as temporarilypreventing from continuing or being enforced or given effect or defer ordelay an action, event or judgment.

22. Thus, when we speak of suspension of sentence afterCconviction, the idea is to defer or postpone the execution of the sentence.The purpose of postponement of sentence cannot be achieved by detainingthe convict in jail; hence, as a natural consequence of postponement ofexecution, the convict may be enlarged on bail till further orders.

23. The principle underlying the theory of criminal jurisprudenceDin our country is that an accused is presumed to be innocent till he is heldguilty by a court of the competent jurisdiction. Once the accused is heldguilty, the presumption of innocence gets erased. In the same manner, ifthe accused is acquitted, then the presumption of innocence gets furtherfortified.E

24. From perusal of Section 389 of the CrPC, it is evident thatsave and except the matter falling under the category of sub-section 3neither any specific principle of law is laid down nor any criteria hasbeen fixed for consideration of the prayer of the convict and further,having a judgment of conviction erasing the presumption leaning in favourFof the accused regarding innocence till contrary recorded by the courtof the competent jurisdiction, and in the aforesaid background, therehappens 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.G25. In Rajesh Ranjan Yadav alias Pappu Yadav v. CBI, reportedin (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 thedecision of this Court in Kashmira Singh v. State ofPunjab [(1977) 4 SCC 291 : 1977 SCC (Cri) 559] . In para 2H

of the said decision it was observed as under : (SCC pp. 292-93)

“It would indeed be a travesty of justice to keep a personin jail for a period of five or six years for an offence whichis ultimately found not to have been committed by him. Canthe Court ever compensate him for his incarceration whichis found to be unjustified? Would it be just at all for theCourt to tell a person:‘We have admitted your appealbecause we think you have a prima facie case, butunfortunately we have no time to hear your appeal forquite a few years and, therefore, until we hear your appeal,you must remain in jail, even though you may beinnocent?’What confidence would such administration ofjustice inspire in the mind of the public? It may quiteconceivably happen, and it has in fact happened in a fewcases in this Court, that a person may serve out his fullterm of imprisonment before his appeal is taken up forhearing. Would a Judge not be overwhelmed with a feelingof contrition while acquitting such a person after hearingthe appeal? Would it not be an affront to his sense ofjustice? Of what avail would the acquittal be to such aperson who has already served out his term ofimprisonment or at any rate a major part of it? It is,therefore, absolutely essential that the practice which thisCourt has been following in the past must be reconsideredand so long as this Court is not in a position to hear theappeal of an accused within a reasonable period of time,the Court should ordinarily, unless there are cogent groundsfor acting otherwise, release the accused on bail in caseswhere special leave has been granted to the accused toappeal against his conviction and sentence.”

9. Learned counsel for the appellant then relied on thedecision of this Court in Bhagirathsinh v. State ofGujarat [(1984) 1 SCC 284 : 1984 SCC (Cri) 63] , ShaheenWelfare Assn. v. Union of India [(1996) 2 SCC 616 : 1996SCC (Cri) 366] , Joginder Kumar v. State of U.P. [(1994) 4SCC 260 : 1994 SCC (Cri) 1172] , etc.

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A10. In our opinion none of the aforesaid decisions can besaid to have laid down any absolute and unconditional ruleabout when bail should be granted by the Court and when itshould not. It all depends on the facts and circumstances ofeach case and it cannot be said there is any absolute rulethat because a long period of imprisonment has expired bailBmust necessarily be granted.”

26. This Court, in the case of Ash Mohammad v. Shiv Raj Singhalias Lalla Babu and Another, reported in (2012)9 SCC 446, hasCobserved in para 30, as follows:

“30. We may usefully state that when the citizens are scaredto lead a peaceful life and this kind of offences usher in animpediment in establishment of orderly society, the duty ofthe court becomes more pronounced and the burden is heavy.DThere should have been proper analysis of the criminalantecedents. Needless to say, imposition of conditions issubsequent to the order admitting an accused to bail. Thequestion should be posed whether the accused deserves tobe enlarged on bail or not and only thereafter issue ofimposing conditions would arise. We do not deny for a momentEthat period of custody is a relevant factor but simultaneouslythe totality of circumstances and the criminal antecedents arealso to be weighed. They are to be weighed in the scale ofcollective cry and desire. The societal concern has to be keptin view in juxtaposition of individual liberty. Regard beingFhad to the said parameter we are inclined to think that thesocial 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 ofGGujarat, reported in (1999) 4 SCC 421, wherein the appellants wereconvicted by the Trial Court against which, the appeal was pending beforethe High Court, the High Court successively rejected the prayer forgrant of bail till the pendency of appeal after suspending thesentence.Thus, it has been held as follows:

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“3.When a convicted person is sentenced to a fixed periodof sentence and when he files an appeal under any statutoryright, suspension of sentence can be considered by theappellate court liberally unless there are exceptionalcircumstances. Of course, if there is any statutory restrictionagainst suspension of sentence it is a different matter. Similarly,when the sentence is life imprisonment the consideration forsuspension of sentence could be of a different approach. Butif for any reason the sentence of a limited duration cannot besuspended every endeavour should be made to dispose ofthe appeal on merits more so when a motion for expeditioushearing of the appeal is made in such cases. Otherwise thevery valuable right of appeal would be an exercise in futilityby efflux of time. When the appellate court finds that due topractical reasons such appeals cannot be disposed ofexpeditiously the appellate court must bestow special concernin the matter of suspending the sentence so as to make theappeal right, meaningful and effective. Of course, appellatecourts can impose similar conditions when bail is granted.”

28. In Sidhartha Vashisht alias Manu Sharma v. State (NCTof Delhi), reported in (2008) 5SCC 230 (popularly known as the JessicaLal murder case), this Court had the occasion to consider the rivalsubmissions as well as various judicial pronouncements referred to byboth 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, arelikely to prejudice one or the other party to the appeal. Weare hence not entering into the correctness or otherwise ofthe evidence on record. It, however, cannot be overlookedthat as on today, the applicant has been found guilty andconvicted by a competent criminal court. Initial presumptionof innocence in favour of the accused, therefore, is no moreavailable to the applicant.

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30. ….In the above cases, it has been observed that once aperson has been convicted, normally, an appellate court willproceed on the basis that such person is guilty. It is no doubttrue that even thereafter, it is open to the appellate court tosuspend the sentence in a given case by recording reasons.But it is well settled, as observed in Vijay Kumar [(2002) 9SCC 364 : 2003 SCC (Cri) 1195 : JT 2002 Supp (1) SC 60]that in considering the prayer for bail in a case involving aserious offence like murder punishable under Section 302IPC, the Court should consider all the relevant factors likethe nature of accusation made against the accused, the mannerin which the crime is alleged to have been committed, thegravity of the offence, the desirability of releasing the accusedon bail after he has been convicted for committing seriousoffence of murder, etc. It has also been observed in some ofthe cases that normal practice in such cases is not to suspendthe sentence and it is only in exceptional cases that the benefitof 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 ofexecution of sentence pending the appeal and release ofthe applicant on bail. There is a distinction between bailand suspension of sentence. One of the essential ingredientsof Section 389 is the requirement for the appellate court torecord reasons in writing for ordering suspension ofexecution of the sentence or order appealed. If he is inconfinement, the said court can direct that he be releasedon bail or on his own bond. The requirement of recordingreasons in writing clearly indicates that there has to becareful consideration of the relevant aspects and the orderdirecting suspension of sentence and grant of bail shouldnot be passed as a matter of routine.”

(emphasis supplied)

32. The mere fact that during the period of trial, the accusedwas on bail and there was no misuse of liberty, does not perse warrant suspension of execution of sentence and grant of bail. What is really necessary is to consider whether reasonsexist to suspend execution of the sentence and grant of bail.”

A(Emphasis supplied)B

29. In the case of Atul Tripathi v. State of Uttar Pradesh andOthers, reported in (2014) 9 SCC 177, whereunder apart from identifyingthe differences of consideration of prayer for grant of bail relating topre-conviction stage as well as post-conviction stage, it has been held inpara 14 which is as follows:

“14. Service of a copy of the appeal and application for bailon the Public Prosecutor by the appellant will not satisfy therequirement of the first proviso to Section 389(1) CrPC. Theappellate court may even without hearing the PublicProsecutor, decline to grant bail. However, in case theappellate court is inclined to consider the release of the convicton bail, the Public Prosecutor shall be granted an opportunityto show cause in writing as to why the appellant be notreleased on bail. Such a stringent provision is introduced onlyto ensure that the court is apprised of all the relevant factorsso that the court may consider whether it is an appropriatecase for release having regard to the manner in which thecrime is committed, gravity of the offence, age, criminalantecedents of the convict, impact on public confidence inthe justice-delivery system, etc. …..”

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30. In Kishori Lal v. Rupa and Others, reported in(2004)7 SCC638, this Court has indicated the factors that require to be considered bythe courts while granting benefit under Section 389 of the CrPC in casesinvolving serious offences like murder etc. Thus, it is useful to refer tothe observations made therein, which are as follows:

“4. Section 389 of the Code deals with suspension ofexecution of sentence pending the appeal and release of theappellant on bail. There is a distinction between bail andsuspension of sentence. One of the essential ingredients ofSection 389 is the requirement for the appellate court to recordreasons in writing for ordering suspension of execution ofthe sentence or order appealed against. If he is in confinement,the said court can direct that he be released on bail or on hisown bond. The requirement of recording reasons in writing G

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Aclearly indicates that there has to be careful consideration ofthe relevant aspects and the order directing suspension ofsentence and grant of bail should not be passed as a matterof routine.

5. The appellate court is duty-bound to objectively assess theBmatter and to record reasons for the conclusion that the casewarrants suspension of execution of sentence and grant ofbail. In the instant case, the only factor which seems to haveweighed with the High Court for directing suspension ofsentence and grant of bail is the absence of allegation ofmisuse of liberty during the earlier period when the accused-Crespondents were on bail.

6. The mere fact that during the trial, they were granted bailand there was no allegation of misuse of liberty, is really notof much significance. The effect of bail granted during trialloses significance when on completion of trial, the accusedDpersons have been found guilty. The mere fact that duringthe period when the accused persons were on bail duringtrial there was no misuse of liberties, does not per se warrantsuspension of execution of sentence and grant of bail. Whatreally was necessary to be considered by the High Court isEwhether reasons existed to suspend the execution of sentenceand thereafter grant bail. The High Court does not seem tohave kept the correct principle in view.”

31. In Vijay Kumar v. Narendra and Othersreported in (2002)9 SCC 364 and Ramji Prasad v. Rattan Kumar Jaiswal andFAnotherreported in (2002)9 SCC 366, it was held by this Court that incases involving conviction under Section 302 of the IPC, it is only inexceptional cases that the benefit of suspension of sentence can begranted. In Vijay Kumar (supra), it was held that in considering theprayer for bail in a case involving a serious offence like murder punishableunder Section 302 of the IPC, the court should consider the relevantGfactors like the nature of accusation made against the accused, themanner in which the crime is alleged to have been committed, the gravityof the offence, and the desirability of releasing the accused on bail afterthey have been convicted for committing the serious offence of murder.

32. The aforesaid view is reiterated by this Court in the case ofHVasant Tukaram Pawar v. State of Maharashtra reported in (2005)5

SCC 281 and Gomti v. Thakurdas and Others reported in (2007)11SCC 160.

33. Bearing in mind the aforesaid principles of law, the endeavouron the part of the Court, therefore, should be to see as to whether thecase presented by the prosecution and accepted by the Trial Court canbe said to be a case in which, ultimately the convict stands for fair chancesof acquittal. If the answer to the above said question is to be in theaffirmative, as a necessary corollary, we shall have to say that, ifultimately the convict appears to be entitled to have an acquittal at thehands of this Court, he should not be kept behind the bars for a prettylong time till the conclusion of the appeal, which usually take very longfor decision and disposal. However, while undertaking the exercise toascertain whether the convict has fair chances of acquittal, what is to belooked into is something palpable. To put it in other words, somethingwhich is very apparent or gross on the face of the record, on the basis ofwhich, the Court can arrive at a prima facie satisfaction that theconviction may not be sustainable. The Appellate Court should notreappreciate the evidence at the stage of Section 389 of the CrPC andtry to pick up few lacunas or loopholes here or there in the case of theprosecution. Such would not be a correct approach.

34. In the case on hand, what the High Court has done is somethingimpermissible. High Court has gone into the issues like political rivalry,delay in lodging the FIR, some over-writings in the First InformationReport etc. All these aspects, will have to be looked into at the time ofthe final hearing of the appeals filed by the convicts. Upon cursoryscanning of the evidence on record, we are unable to agree with thecontentions coming from the learned Senior Counsel for the convictsthat, either there is absolutely no case against the convicts or that theevidence against them is so weak and feeble in nature, that, ultimately inall probabilities the proceedings would terminate in their favour.For thevery same reason we are unable to accept the contention coming fromthe convicts through their learned Senior Counsel that, it would bemeaningless, improper and unjust to keep them behind the bars for apretty 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 theHigh Court committed a serious error in suspending the substantive orderof sentence of the convicts and their release on bail pending the finaldisposal of their criminal appeals.

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36. In fact, it was expected of the Stateas the prosecuting agencyto challenge the order passed by the High Court, but for some reason orthe other, the State thought fit not to do anything further. Ultimately, it isthe original first informant (brother of the deceased) who had to comebefore this Court.

B37. We make it clear and it goes without saying that anyobservations touching the merits of the case are purely for the purposeof deciding the present appeals and shall not be construed as an expressionof the final opinion in the pending criminal appeals before the High Court.

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

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

40. The convicts are ordered to surrender before the Trial Courtwithin a period of three days from today.

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Ankit Gyan

(Assisted by : Aarsh Choudhary, LCRA)

Appeals allowed.

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