Holding

An order suspending execution of sentence and granting bail under Section 389 CrPC must be based on specific, recorded reasons and cannot be granted as a routine matter; the High Court's order, relying merely on the absence of alleged misuse of liberty, was unsustainable and set aside.

Summary

The complainant appealed against the Allahabad High Court's orders granting bail to five convicted respondents under Section 389 of the Code of Criminal Procedure, 1973, while their appeals against convictions for murder and related offences were pending. The High Court had justified the bail on the ground that the accused had not misused their liberty during the trial when they were previously on bail. The Supreme Court examined whether such a bare allegation sufficed to satisfy the statutory requirement that the appellate court record specific, written reasons before suspending execution of a sentence and releasing the appellant on bail. It held that Section 389 mandates a careful, reasoned assessment and that the mere absence of alleged misuse of liberty is not a sufficient basis, especially in cases involving conviction for murder. Consequently, the Court set aside the High Court's orders and allowed the appeal, emphasizing that bail in serious offences must be granted only in exceptional circumstances with proper justification.

Issues considered

Whether the High Court correctly exercised its power under Section 389 CrPC to suspend execution of sentence and grant bail to convicted persons.
Whether the absence of allegation of misuse of liberty during trial is a sufficient ground for granting bail under Section 389.
Whether the appellate court is required to record written reasons for suspension of sentence and bail, and what factors must be considered in cases of murder convictions.

Legislation cited

Code of Criminal Procedure, 1973s. 389
Indian Penal Code, 1860s. 148, s. 149, s. 201, s. 302
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Acts. 3(2), s. 5

Subjects

bailsuspension of sentenceSection 389 CrPCmurder convictionappellate court discretionreasoned ordercriminal procedure

Judgment

A GOMTI
v.
'•
THAKURDAS AND ORS.

APRIL 13, 2007

B [DR. ARIJITPASAYAT ANDD. K.JAIN, JJ.]

Code of Criminal Procedure, 1973-s. 389--Suspension of execution -t-
of sentence and grant of bail -Grant of bail by appellate court on the ground
of absence of allegation of misuse of liberty while on bail during trial-
c Propriety of-Held: the order directing suspension of execution of sentence
and grant of bail should not be passed as a routine-Such order should
record reasons in writing-Misuse of liberty while on bail during trial does
not per se warrant such order-Order of appellate court was not passed
kfeping the correct principles.
D
Criminal Law-Bail and Suspension of execution of sentence-
Distinction between.
"(

Respondent Nos. I to S were convicted u/s 302 r/w s. 149 IPC, u/ss.
148 and 201 IPC and u/s 3(2) and S of Schedule Castes and Scheduled Tribes
E (Prevention of Atrocities) Act They filed appeals before High Court. During
pendency of the appea~ the respondents were granted bail in exercise of power
u/s 389 Cr.PC, on the ground that during the period when they were on bail
during trail, they did not misuse their liberties - Hence the present appeal
by the complainant opposing grant of bail.

F Allowing the appeal, the Court

HELD: I. Section 389 Cr.P.C. 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
G record 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
-1
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
releva.nt aspects and the order directing suspension of sentence and grant of
H 90
GOMTiv. THAKURDAS[PASAYAT,J.] 91
bail should not be passed as a matter of routine. [Para 11) (93-H; 94-A-BJ. A
2. 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 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 B
during the earlier period when the accused-respondents were on bail.
[Para 12) (94-C)

3. The mere fact that during the trial, they were granted bail and there
was no allegation of misuse ofliberty, is really not of much significance. The C
effect of bail granted during trial looses 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 D
sentence and thereafter grant bail. The High Court does not seem to have
) kept the correct principle in view. [Para 13) [94-D-E)
->
Vijay Kumar v. Narendra and Ors., [2002) 9 SCC 364; Ramji Prasad v.
Rattan Kumar Jaiswal and Anr., (2002) 9 SCC 366; Kishori Lal v. Rupa and
Ors., [2004) 7 SCC 638 and Vasant Tukaram Pawar v. State ofMaharashtra, E
[2005) 5 sec 281, relied on.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 555 of
2007.

.:; From the Judgment and Order dated 16.12.2002 & 23.01.2003 of the High F
Court of Judicature at Allahabad in Cr!. Appeal Neis. 3876 of2002 and 3777
of2002 respectively.

Dr. Nafis and A. Siddiqui for the Appellant.

Nalin Tripathi, Anurag Sharma, Rameshwar Prasad Goyal, Sahdev Singh, G
Shahid Ali Rao, Musharraf Chawdhry and Javed Mahmud Rao for the
. .._.
Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. I. Leave granted. H
92 SUPREME COURT REPORTS [2007) 5 S.C.R.

A 2. Challenge in this appeal is to the orders passed by a learned Single
Judge of the Allahabad High Court accepting prayer for bail, which has been
filed by the respondent Nos. I to 5, during pendency of the appeals (i.e.
CRLA 3876/2002 and 3777/2002) before the High Court. The present appeal
is by the complainant alleging that her husband has been killed by the
B respondents I to 5 on I2.9.1998, and the concerned respondents are not
entitled to bail.

3. Background facts in a nutshell are as follows:

4. 1be respondent Nos. I to 5 faced trial of alleged commission of
C offences punishable under Sedons 147, I48, I49, 302, 20I, 120(B) and 323
of the Indian Penal Code, I860 (in short the '!PC') and under Sections 3(2)
and (5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act (in short the 'SCSI Act' ) and Sections 3(2) and (5) of the Arms Act,
1954 (in short the 'Arms Act') in Sessions Trial Nos. I I and I2 of I999.

D 5. All the accused were found guilty and sentenced to imprisonment for
life and were convicted in terms of Section 302 read with Section 149 !PC, and
other sentences in respect of Sections I48, 20 I and Section 3(2) and 5 of the
.•
SCSI Act. However, they were acquitted of the charges relatable to Sections
r.
25 of the Arms Act and Section I20 B !PC. The respondents I to 5 filed
Criminal Appeal Nos.3876 of2002 and 3777 of2002 before the High Court. By
E the impugned orders dated I6. ! 2.2002 and 23.1.2003, the prayer for bail was
accepted. In the Criminal Appeal No.3876 of 2002 the following order was
passed.

"Heard learned counsel for the appellants Sri Sanjay Tripathi for
complainant and the learned AG.A.
F
Perused the order of Sessions Judge and lower court's record. The .,.
appellants were on bail during trial.

Pending appeal, appellants-Thakur Das, Hanshraj & Dillan convicted
in S.T. No. I2/99 shall be released on bail on each of them executing
G a personal bond and on furnishing two sureties each in the like
amount to the satisfaction of the court concerned.

Until further orders realisation of fine shall also remain stayed." -·
6. In the other appeal i.e. Criminal Appeal No. 3777 of 2002 following
H order was passed:
GOMT!v. THAKURDAS[PASAYAT,J.] 93

--1
"Heard appellants' counsel, Sri Sanjay Tripathi for complainant's A
counsel and the learned A.G.A. for the State.

Appellant's counsel submits that other co-accused persons, who are
said to have fired have already been released on bail. Appellant's
counsel further submits that presence of Kali Charan at the time of
occurrence is highly doubtful as he was medically examined on 13.9.98 B
at 5.15 p.m. whereas the report was lodged on 12.9.98 at 7.15 p.m. and
he had also gone to lodge the report alongwith the complainant and
-r the applicants have been in jail for the last more than four years.

Pending appeal appellants Gyasi & Balkhandi convicted in S.T.
No. 2/99 be released on bail on each of them executing a personal c
bond and on furnishing two sureties each in the like amount to the
satisfaction of court concerned.

Until further orders the realization of fine shall also remain stayed."

7. The appellant has questioned correctness of the orders urging that D
in the first order there is no reason indicated except stating that the accused
appellants were on bail during trial and in the other case the only additional
"' ground indicated is that the presence of Kali Charan at the time of occurrence
is highly doubtful as he was medically examined on 13.9.1998 at 5.15 P.M.
whereas the report was lodged on 12.9.1998 at about 7.15 P.M. and he had
gone to lodge the report along with the complainant. The further reasons E
indicated is that the applicant is in jail for about four years.

8. Learned counsel for the appellant has submitted that while exercising
power relatable to Section 389 of the Code of Criminal Procedure, 1973 (in
short the 'Code'), it is imperative that the reasons have to be recorded. The
F
--", reasons indicated have to be germane to justify grant of bail. The factors
which have weighted with the High Court are not only irrelevant but also
show non-application of mind.

9. On the contrary learned counsel for respondents I to 5 has submitted
that grant of bail being discretionary, the High Court was justified in taking G
note of the relevant factors and granting bail.
_..__
10. Learned counsel for the State supported the stand of the appellant.

11. 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 H
94 SUPREME COURT REPORTS [2007) 5 S.C.R.

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 'r·
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 ~he
B relevant aspects and the order directing suspension of sentence and grant of
bail should not be passed as a matter of routine.

12. The appellate Court is duty bound to objectively assess the matter
-"'!'.'...
and to record reasons for the conclusion that the case warrants suspension
c of execution of sentence and grant of bail. In 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.

13. The mere fact that during the trial, they were granted bail and there
D was no allegation of misuse of liberty, is really not of much significance. The
effect of bail granted during trial looses 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
E the High Court is whether reasons existed to suspend the execution of
sentence and thereafter grant bail. The High Court does not seem \o have
kept the correct principle in view.

14. In Vijay Kumar v. Narendra and ors., [2002] 9 SCC 364 and Ramji
Prasad v. Rattan Kumar Jaiswal and anr., [2002] 9 SCC 366, it was held by
F
this Court that in cases involving conviction under Section 302 IPC, it is only
in exceptional cases that the benefit of suspension of sentence can be granted.
The impugned order of the High Court does not meet the requirement. In Vijay
Kumar's case (supra) it was held that in considering the prayer for bail in a
case involving a serious offence like murder punishable under Section 302
G !PC, the Court should consider the relevant factors like the nature of accusation
made against the accused, the manner in which the crime is alleged to have
been committed, the gravity of the offence, and the desirability of releasing
_,.
the accused on bail after they have been convicted for committing the serious
offence of murder.
H
GOMTiv. THAKURDAS(PASAYAT,J.] 95
15. The above position was highlighted in Kishori Lal v. Rupa and A
Ors., [2004] 7 SCC 638 and in Vasant Tukaram Pawar v. State ofMaharashtra,
[2005] 5 sec 281.

16. The order directing suspension of sentence and grant of bail is
clearly unsustainable and is set aside. Learned counsel for the accused-
respondents stated that fresh applications shall be moved before the High B
Court. In case it is done, it goes without saying, that the High Court shall
consider the matter in accordance with law, in its proper perspective.

I 7. Considering the principles set out above, we are of the view that the
impugned orders of the High Court cannot be maintained and are set aside. C
18. The appeal is allowed to the aforesaid extent.

K.K.T. Appeal partly allowed.

,
.