AASIF @ PASHAversusTHE STATE OF U.P. & ORS.

          [2025] 8 S.C.R. 682 : 2025 INSC 944

                      Aasif @ Pasha
                             v.
                  The State of U.P. & Ors.
             (Criminal Appeal No. 3409 of 2025)
                         06 August 2025
       [J.B. Pardiwala and R. Mahadevan, JJ.]


                    Issue for Consideration
Issue arose as to the correctness of the order passed by the High
Court by which it declined to suspend the substantive order of
sentence passed by the trial court against the appellant.

                           Headnotes†
Code of Criminal Procedure, 1973 – s.389 – Suspension of
sentence pending appeal – Appellant convicted under the
various provisions under the IPC, POCSO and SC/ST Atrocities
Act and maximum punishment of four years imposed – Appeal
against conviction pending before the High Court – Meanwhile,
the appellant filed an application u/s.389 seeking suspension
of the substantive order of sentence – High Court declined
to suspend the substantive order of sentence – Correctness:
Held: Instant case is one of a fixed term of sentence – High Court
while passing the impugned order failed to take into consideration
the well-settled principles of law governing the plea of suspension
of sentence on fixed term – High Court should have been mindful
of the fact that the appeal is of the year 2024 – Appeal of 2024 is
not likely to be taken up in near future – Ultimately, if four years
are to elapse in jail the same would render the appeal infructuous
and that would be travesty of justice – Impugned order set-aside –
Matter remanded to the High Court for fresh consideration of the
plea of the appellant for suspension of the substantive order of
sentence keeping in mind the principles of law – Penal Code,
1860 – ss.354, 354B, 323, 504 – Protection of Children from
Sexual Offences Act, 2012 – ss.7, 8 – Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 – s.3(1)(10).
[Paras 11, 19-22]
Judicial deprecation – Incorrect approach by High Court –
Matter pertaining to suspension of sentence – High Court
[2025] 8 S.C.R.                                                           683

                Aasif @ Pasha v. The State of U.P. & Ors.


     unfortunately while passing the impugned order failed to take
     into consideration the well-settled principles of law governing
     the plea of suspension of sentence on fixed term – High
     Court reiterated the entire case of the prosecution and the
     oral evidence, which is not the correct approach – This Court
     constrained to observe that such errors creep in at the level
     of High Court only because the well settled principles of law
     on the subject not applied correctly – Very important to first
     look into the subject-matter and thereafter the court should
     look into the issue involved and in the last the court should
     look into the plea of the litigant and then proceed to apply
     the correct principles of law. [Paras 19, 20, 23]

                             Case Law Cited
     Bhagwan Rama Shinde Gosai and Others v. State of Gujarat
     [1999] 3 SCR 545 : (1999) 4 SCC 421; Omprakash Sahni v. Jai
     Shankar Chaudhary and Anr. [2023] 5 SCR 141 : (2023) 6 SCC
     123 – referred to.

                                List of Acts
     Code of Criminal Procedure, 1973; Penal Code, 1860; Protection
     of Children from Sexual Offences Act, 2012; Scheduled Castes
     and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

                             List of Keywords
     Suspension of sentence; Fixed term of sentence; Expeditious
     hearing of appeals; Travesty of justice; Render appeal infructuous;
     Suspend the substantive order of sentence; Incorrect approach
     by the High Court.

                            Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     3409 of 2025
     From the Judgment and Order dated 29.05.2025 of the High Court
     of Judicature at Allahabad in CRLA No. 8689 of 2024

                         Appearances for Parties
     Advs. for the Appellant:
     Mohd. Fuzail Khan, Ms. Shisba Chawla, Anisul Haque.
684                                                          [2025] 8 S.C.R.

                          Supreme Court Reports


                  Judgment / Order of the Supreme Court

                                    Order

1.     Leave granted.
2.     The impugned Order is one more from the High Court of Judicature
       at Allahabad with which we are disappointed.
3.     This petition arises from the order passed by the High Court
       of Judicature at Allahabad dated 29-5-2025 in Criminal Appeal
       No.8689/2024 by which the High Court declined to suspend the
       substantive order of sentence passed by the Trial Court.
4.     It appears from the materials on record that the appellant was
       put to trial in the Court of 2nd Additional Sessions Judge/Special
       Judge(POCSO Act), Meerut, Uttar Pradesh in Protection of Children
       from Sexual Offences Act (POCSO) Case No.270/2016 for the offence
       punishable under Sections 7 & 8 respectively of the POCSO Act,
       Sections 354, 354Kha, 323 and 504 respectively of the Indian Penal
       Code and Section 3(1)(10) of the Scheduled Castes and Scheduled
       Tribes (Prevention of Atrocities) Act, 1989.
5.     At the end of the trial, the appellant stood convicted.
6.     He was sentenced to undergo one year rigorous imprisonment with
       fine of Rs.3000/- for the offence punishable under Section 354 IPC
       for the offence under Sections 7 and 8 respectively of the POCSO,
       he came to be sentenced to undergo 4 years of RI with fine of
       Rs.4,000/- and for the offence under the SC/AT Atrocities Act, he
       came to be sentenced to undergo 4 years of RI with fine of Rs.5,000/-.
       The Trial Court ordered that all the sentences shall run concurrently.
7.     Being dissatisfied with the Judgment and order of conviction passed
       by the Trial Court, the appellant went in appeal before the High Court.
       His Criminal Appeal No.8689/2024 is awaiting final hearing. In the
       said appeal, the appellant preferred an application under Section
       389 of the Code seeking suspension of the substantive order of
       sentence passed by the Trial Court.
8.     The High Court declined to suspend the substantive order of sentence
       observing as under:-
            “21. Having heard the learned counsel for applicant/
            appellant, the learned A.G.A. for State-opposite party-1,
[2025] 8 S.C.R.                                                            685

                Aasif @ Pasha v. The State of U.P. & Ors.


           upon perusal of material brought on record, evidence,
           nature and gravity of offence as well as complicity of
           applicant/appellant, accusation made, this court finds that
           the objections raised by the learned AGA in opposition to
           this application for suspension of sentence could not be
           dislodged by the learned counsel for applicant/appellant
           with reference to the record at this stage, therefore,
           irrespective of the varied submissions urged by the learned
           counsel for applicant/appellant in support of this application
           for suspension of sentence and also considering the fact
           that the applicant/appellant has been held to be guilty of
           committing the offence which is not only immoral but also
           heinous, therefore, this Court does not find any good or
           sufficient ground so as to enlarge the applicant/appellant
           on bail during the pendency of present appeal.”
9.   In such circumstances, referred to above, the appellant is here before
     this Court with the present petition.
10. There are two types of sentence that the Trial Court can impose
    depending on the nature of the offence. Some orders of sentence
    are for a fixed term, unlike the order of sentence of life imprisonment.
11. The case in hand is one of a fixed term of sentence. The maximum
    punishment that has been imposed is 4 years.
12. Way back in 1999, this Court in “Bhagwan Rama Shinde Gosai and
    Others v. State of Gujarat” reported in (1999) 4 SCC 421 stated that
    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 should be considered by the Appellate Court liberally
    unless there are exceptional circumstances.
13. Of course, if there is any statutory restriction against suspension of
    sentence, it is a different matter.
14. Similarly, when the sentence is life imprisonment, the consideration
    for suspension of sentence could be of a different approach.
15. 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.
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                          Supreme Court Reports


16. This Court said in so many words that otherwise the very valuable
    right of the appellant would be an exercise in futility by afflux of time.
17. When the Appellate Court finds that due to practical reasons, such
    appeals cannot be disposed of expeditiously, the Appellate Court
    must show special concern in the matter of suspending the sentence
    so as to make the appeal right, meaningful and effective. At the
    same time, the appellate courts can impose similar conditions when
    appeal is granted.
18. In “Omprakash Sahni vs. Jai Shankar Chaudhary and Anr. (2023)
    6 SCC 123, this Court while considering the scope of 389 CrPC in
    cases of life imprisonment held as under:-
           30. In Kishori Lal v. Rupa [Kishori Lal v. Rupa, (2004) 7
           SCC 638 : 2004 SCC (Cri) 2021], this Court has indicated
           the factors that require to be considered by the courts while
           granting benefit under Section 389CrPC in cases involving
           serious offences like murder, etc. Thus, it is useful to refer
           to the observations made therein, which are as follows :
           (SCC pp. 639-40, paras 4-6)
                “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 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
[2025] 8 S.C.R.                                                    687

                Aasif @ Pasha v. The State of U.P. & Ors.


                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 [Vijay Kumar v.
                Narendra, (2002) 9 SCC 364 : 2003 SCC (Cri)
                1195] and Ramji Prasad v. Rattan Kumar Jaiswal
                [Ramji Prasad v. Rattan Kumar Jaiswal, (2002)
                9 SCC 366 : 2003 SCC (Cri) 1197] , it was held
                by this Court that in cases involving conviction
                under Section 302IPC, it is only in exceptional
                cases that the benefit of suspension of sentence
                can be granted. In Vijay Kumar [Vijay Kumar v.
                Narendra, (2002) 9 SCC 364 : 2003 SCC (Cri)
                1195], it was held that in considering the prayer
                for bail in a case involving a serious offence
                like murder punishable under Section 302IPC,
                the court should consider the relevant factors
                like the nature of accusation made against
                the accused, the manner in which the crime is
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                Supreme Court Reports


       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.
       32. The aforesaid view is reiterated by this
       Court in Vasant Tukaram Pawar v. State of
       Maharashtra [Vasant Tukaram Pawar v. State
       of Maharashtra, (2005) 5 SCC 281 : 2005 SCC
       (Cri) 1052] and Gomti v. Thakurdas [Gomti v.
       Thakurdas, (2007) 11 SCC 160 : (2008) 1 SCC
       (Cri) 644].
       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
       abovesaid 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 takes 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 CrPC and try to pick
       up a few lacunae or loopholes here or there in
       the case of the prosecution. Such would not be
       a correct approach.”
[2025] 8 S.C.R.                                                            689

                   Aasif @ Pasha v. The State of U.P. & Ors.


19. It is unfortunate that the High Court while passing the impugned
    order failed to take into consideration the well-settled principles of
    law governing the plea of suspension of sentence on fixed term is
    concerned. What the High Court did was to reiterate the entire case
    of the prosecution and the oral evidence which has come on record.
20. That is not the correct approach.
21. The High Court should have been mindful of the fact that the appeal
    is of the year 2024. Appeal of 2024 is not likely to be taken up in
    near future. Ultimately, if 4 years are to elapse in jail the same would
    render the appeal infructuous and that would be travesty of justice.
22. In such circumstances, referred to above, we set aside the impugned
    order and remand the matter to the High Court for fresh consideration
    of the plea of the appellant – herein for suspension of the substantive
    order of sentence keeping in mind the principles of law as explained
    by us aforesaid. The High Court shall keep in mind that the sentence
    is for a fixed term, i.e. 4 years and it is only if there are any compelling
    circumstances on record to indicate that the release of the appellant
    would not be in public interest that the Court may order accordingly.
23. We are once again constrained to observe that such errors creep in
    at the level of High Court and only because the well-settled principles
    of law on the subject are not applied correctly. It is very important to
    first look into the subject-matter. Thereafter the court should look into
    the issue involved. In the last the court should look into the plea of
    the litigant and then proceed to apply the correct principles of law.
24. With the aforesaid, the Appeal stands disposed of.
25. The High Court shall re-hear the application filed by the appellant –
    herein afresh at the earliest and pass an appropriate order within
    15 days from today.
26. Pending applications, if any, also stand disposed of.

     Result of the case: Appeal disposed of.




     †
         Headnotes prepared by: Nidhi Jain