KISHORI LALversusRUPA AND ORS.

A                                  KISHORI LAL
                                        v.
                                  RUPA AND ORS.

                               SEPTEMBER 23, 2004

B                 [ARIJIT PASAYAT AND C.K. THAKKER, JJ.]

          Code ofCriminal Procedure, 1973-Section 389--Convictionfor murder
     by trial Court-During pendency of appeal suspension of execution of
     sentence and grant of bail by High Court-On the ground that accused while
c    on bail during trial did not misuse the liberty-Appeal challenging grant of
     bail-Held: Order to suspend execution of sentence and grant of bail was
     erroneous-Such order is not to be passed as a matter ofroutine-Order was
     passed without considering the relevant factors required to be considered
     while granting bail in case involving offence of murder.

D          Respondents~accused were convicb~d by trial Court u/s 302 IPC
     and sentenced for the same. In the appeal before High Court, they fUed
     application u/s 389 Cr.P.C. for suspension of execution of sentence. High
     Court granted bail on the ground that. during trfal, they were on bail
     and had not misused the liberties granted to them; Appellant-info.rmant
E    filed appeal before this Court challenging the grant of bail.

           Allowing. the appeal, the Court

             HELD: 1. The order directing suspension of sentence and· grant of
       bail is unsustainable. The mere fad that during the perio.d when the
·F     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. The effect of bail granted during trial loses significance when
       on completion of trial, the accused persons have been found guilty. What
     . really was necessary to be considered by the High Court was whether
       reasons existed to suspend the execution of sentence and thereafter grant
G
       bail. The High Court- does not seem to have kept the correct principle
       in view. [631-F; 631-A-B)

           State of Haryana v. Hasmat, JT (2004) 6 SC 6, relied on.

H          2. One of the essential ingredients of Section 389 Cr;P.C. is the
                                          628
                 KISH ORI LAL v. RUPA [PASA VAT, J.]                     629

requirement for the appellate Court to record reasons in writing for            A
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 and the order directing suspension of sentence and             B
grant of bail should not be passed as a matter of routine. (630-D-F]

     3. 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 mit meet the requirement. In
considering the prayer for bail in a case involving a serious offence like      C
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
after they have been convicted for committing the serious offence of
murder. These aspects have not been considered by the High Court, while
                                                                                D
passing the impugned order. (631-C-E)

     Vijay Kumar v. Narendra and Ors., [2002) 9 SCC 364 and Ramji
Prasad v. Rattan Kumar Jaiswal and Anr., [2002) 9 SCC 366, relied on.
                                                                                E
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
I 067 of 2004.

    From the Judgment and Order dated 13 .1.2004 of the Allahabad High
Court in Cr!. A. No. 148 of 2004.
                                                                                F
     Dr. (Mrs.) Vipin Gupta for the Appellant.

     Shahid Anwar and Naresh Kumar for the Respondents.

     R. K. Singh and J.K. Bhatia for State.
                                                                                G
     The Judgment of the Court was delivered by

     ARIJIT PASAYAT, J. : Leave granted.

     The informant calls in question legality of grant of bail to accused-      H
     630                  SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A    respondent Nos. I to 3 by the High Court of Allahabad. In the appeal
     preferred by respondents l to 3, an application was filed purportedly under
     Section 389 of the Code of Criminal Procedure, 1973 (in short the 'Code')
     with the prayer that execution of substantive sentence of imprisonment for
     life and a fine of Rs.10,000 imposed after finding them guilty for offences
B    punishable under Section 302 read with Section 34 of the Indian Penal Code,
     1860 (in short the 'IPC') be suspended. The High Court, by the impugned
     order, granted bail primarily on the ground that during trial, the accused
     respondents were on bail and had not misused the liberties granted to them.

           According to learned counsel for the appellant-informant, who is
c supported by learned counsel for respondent No. 4 - State, the approach of
     the High Court is clearly erroneous. In a large number of cases the accused-
     respondent Nos. l to 3 were involved and the appellant and his family
     members have been threatened with dire consequences for having set law into
     motion. Learned counsel for accused-respondent Nos. I to 3, ·however,
D    submitted that the case was instituted on account of previous enriiity and at
     present no case is pending where they are accused.

           Section 3 89 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 ·
E    Section 389 is the requirement for the appellate Court to record reasons in
     writing for ordering suspension of execution of the sentence or ord.er
     appealed. Ifhe 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
p    aspects ·and the order directing suspelis_iori. of sentence and grant of ball
     should not be passed as a matter of routine.

           The appellate Court is duty bound to objectively assess the matter and
     to re.cord .reasons ·for the conclusion that the case warrants suspension· of
     execution of sentence and grant of bail. In the ins_tant case, the only factor
G    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 ..

           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 .
.H
                 KISHORI LAL v. RUPA [PASAYAT, J.]                       631

effect of bail granted during trial looses significance when on completion of    A
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            B
sentence and thereafter grant bail. The High Court does not seem to have kept
the correct principle in view.

     A similar question was examined in State of Haryana v. Hasmat, JT
(2004) 6 SC 6.
                                                                                 c
      In Vijay Kumar v. Narendra and Others, [2002] 9 SCC 364 and Ramji
Prasad v. Rattan Kumar Jaiswal and Another, [2002] 9 SCC 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. The impugned order of the High Court does not meet the
requirement. In Vijay Kumar's case (supra) it was held that in considering
                                                                                 D
the prayer for bail in a case involving a serious 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 after they have   E
been convicted for committing the serious offence of murder. These aspects
have not been considered by the High Court, while passing the impugned
order.

      The order directing suspension of sentence and grant of bail is clearly
unsustainable and is set aside. Learned counsel for the accused-respondents      F
stated that a fresh application shall be moved. In case it is done, the High
Court, it goes without saying, shall consider the matter in accordance with
law, in its proper perspective. We express no opinion in that regard.

     The appeal is; accordingly, allowed.                                        G
K.K.T.                                                      Appeal allowed.