ANILARIversusSTATE OF WEST BENGAL

                       (2009] 1 S.C.R. 1058


A                           ANILARI
                                v.
                   STATE OF WEST BENGAL
               (Criminal Appeal No. 239 of 2009)
                       FEBRUARY 9, 2009
B
          [DR. ARIJIT PASAYAT AND ASOK KUMAR
                       GANGULY, JJ.)

        Code of Criminal Procedure, 1973 - s. 389 -
C Suspension of sentence pending appeal - Essential
  ingredients for - Explained - On facts, conviction and
  sentence u/s. 342, 302 and 201 rlw s. 34 /PC - Application
  for suspension of sentence - Rejection of, by High Court -
  On appeal, held: Appellate court is duty bound to objectively
D assess the matter and record reasons in writing for ordering
  suspension of sentence - Fact that accused on bail during
  trial and no allegation of misuse of liberty, not of much
  significance - Considering that accused is 70 years old and
  in jail for one year, accused to be released on bail on
E furnishing of security- Penal Code, 1860 - s.342, 302, 201
  rlws.34.

      The question which arose for consideration in this
  appeal was whether the High Court was justified in
  rejecting the application for suspension of sentence u/s
F 389 of the Code of Criminal Procedure, 1973.

       Allowing the appeal, the Court
      HELD:1.1. Section 389 of the Code of Criminal
G Procedure, 1973 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

H                              1058
        ANIL ARI v. STATE.OF WEST BENGAL                  1059


to record reasons in writing for ordering suspension of           A
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             B
order directing suspension of sentence and grant of bail
should not be passed as a matter of routine. [Para 8)
[1061-F-H; 1062-A]
     1.2. The mere fact that during the trial, they were
granted bail and there was no allegation of misuse of             C
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            D
misuse of liberties, does not per se warrant suspension
of execution of sentence and grant of bail. What really is
necessary to be considered by the High Court is whether
reasons existed to suspend the execution of sentence
and thereafter grant bail. [Para 10] [1062-C-D]                   E
     Vijay Kumar v. Narendra and others 2002 (9) SCC 364;
Ramji Prasad v. Rattan Kumar Jaiswal and another 2002 (9)
SCC 366; Kishori Lal v. Rupa and Others 2004 (7) SCC 638;
Vasant Tukaram Pawar v. State of Maharashtra 2005 (5) SCC
281 and Gomti v. Thakurdas and Ors. 2007 (11) SCC 160,            F
referred to
     1.3. Considering the age of the accused-appellant, he
is directed to be released on bail on furnishing security
of Rs. 30,000/- with two sureties of like amount to the           G
satisfaction of the Court. [Para 13) [1063-B-C]
                     Case Law Reference:
    2002 (9) sec 364             Referred to.        Para 11
    2002 (9) sec 366             Referred to.        Para 11      H
    1060         SUPREME COURT REPORTS              (2009] 1 S.C.R.


A       2004(7) sec 638              Referred to.         Para 12
        2005 (5) sec 281             Referred to.         Para 12
        2001 (11) sec 160            Referred to.         Para 12

B       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 239 of 2009.

         From the final Judgment and Order dated 3.4.2008 of the
    High Court of Calcutta at Calcutta in C.R.A.N. No. 826 of 2008
    in C.R.A. No. 168 of 2008.
c
           Pijush K. Roy and Sushil Kumar Verma for the Appellant.

        H.K. Puri, S.K. Puri, V.M. Chauhan and Pirya Puri for the
    Respondent.

D       The Judgment of the Court was delivered by

        DR. ARIJIT PASAYAT, J.1. Leave granted.

       2. Challenge in this appeal is to the order passed by a
  Division Bench of the Calcutta High Court rejecting the
E application for suspension of sentence under Section 389 of
  the Code of Criminal Procedure, 1973 (in short the 'Code').
  Four persons who are the appellants in Criminal Appeal
  No.168 of 2008 were convicted by learned Additional District
  and Sessions Judge, Fast Track, Second Court, Contai, Purba
F Medinipur for offences punishable under Sections 342, 302 and
  201 read with Section 34 of the Indian Penal Code, 1860 (in
  short the 'IPC').

       3. Law was set into motion on 9.7.1994 by one
G Shamburam Maity, alleging that 17 accused persons and many
  unknown persons on 8.7.1994 at about 11.00 p.m. in
  furtherance of their common intention had murdered the
  complainant's brother Shibram Maity and had concealed the
  dead body in the house of one Sasanka Maity. The police
H undertook investigation and after completion of investigation
                 ANIL ARI v. STATE OF WEST BENGAL                    1061
                       [DR. ARIJIT PASAYAT, J.]
         charge sheet was filed against 19 persons. Charge was framed        A
         on 5.11.2005 and the accused persons faced trial as they
         pleaded innocence.

              4. It is to be noted that charges were framed against 16
         persons as two of the accused persons had expired before the        B
         commencement of the trial. The trial Court on consideration of
         the evidence came to hold that appellants before the High Court
         were guilty as afore-noted.
    '~

              5. The application for suspension of sentence in terms of
         Section 389 of Code was filed which was rejected primarily          c
         being of the view that the evidence of PWs 1, 2, 4 and 7 was
         sufficient to establish the accusations and, therefore, this was
         not a fit case where prayer in terms of Section 389 of Code
         was to be accepted.
                                                                             D
               6. On 29.9.2008 a Special Leave Petition was dismissed
         in respect of petitioner Nos.2 to 4. Notice was issued qua
         petitioner No.1 only. Learned counsel for the appellant-Anil Ari
         submitted that the said appellant is nearly 70 years old and is
         in jail for nearly one year and that he was on bail during trial.   E
              7. Learned counsel for the respondent-State on the other
         hand submitted that the trial Court has analysed the evidence
         in great detail and has come to the conclusion about the guilt
         of the appellant and three other accused persons.
                                                                            F
               8. 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 G
         reasons in writing for 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 H
   1062        SUPREME COURT REPORTS              [2009] 1 S.C.R.


A and the order directing suspension of sentence and grant of
   bail sbould not be passed as a matter of routine.

       9. The appellate Court is duty bound to objectively assess
  the matter and to record reasons for the conclusion that the
8 case warrants suspension of execution of sentence and grant
  of bail.

       10. 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
C 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 is
D necessary to be considered by the High Court is whether
  reasons existed to suspend the execution of sentence and
  thereafter grant bail.

       11. In Vijay Kumar V. Narendra and others (2002 (9) SCC
E 364) and Ramji Prasad V. Rattan Kumar Jaiswa/ and another
  (2002 (9) sec 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. In Vijay Kumar's case (supra) it was held that
  in considering the prayer for bail in a case involving a serious
                                                                      ).
F 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
G after they have been convicted for committing the serious
  offence of murder.

       12. The above position was highlighted in Kishori Lal v.
  Rupa and Others [2004(7) SCC 638], Vasant Tukaram Pawar
H v. State of Maharashtra [2005 (5) SCC 281] and Gomti v.
          ANIL ARI v. STATE OF WEST BENGAL                  1063
                [DR. ARIJIT PASAYAT, J.]

Thakurdas and Ors. (2007 (11) SCC 160).                             A
      13. On the peculiar facts of the case considering the age
of the accused appellant Anil Ari, we direct that he shall be
released on bail on furnishing security of Rs.30,000/- with two
sureties of like amount to the satisfaction of learned Additional
                                                                    8
District and Sessions Judge, Fast Track, Second Court, Contai,
Purba Medinipur in Sessions trial No.112/2004 relating to C.R.
No.432/1994. It is made clear that we have directed release
of appellant No.1 only on considering the fact that he is 70
years old and not on consideration of the merits of the case.
                                                                    c
       14. The appeal is allowed to the aforesaid extent.
N.J.                                           Appeal allowed.