MASOOD ALI KHANversusSTATE OF U.P. AND ORS.

                               [2009) 1 S.C.R. 859

·- ~                          MASOOD ALI KHAN                                A
                                        v.
                           STATE OF U.P. AND ORS.
                       (Criminal Appeal No. 213 of 2009)
                              FEBRUARY 5, 2009
                                                                             8
                 [DR. ARIJIT PASAYAT AND ASOK KUMAR
 __>!-
                              GANGULY, JJ.]

               Code of Criminal Procedure, 1973 - s.389 - Suspension
          of sentence pending appeal and release on bail - Death due         c
          to assault with sharp edged weapons - Conviction u/s.302
          /PC and sentence of life imprisonment - During pendency of
          criminal appeal, application for release on bail - High Court
         granted bail - Challenged - Held: Order directing suspension
          of sentence and grant of bail should not be passed as a matter     D
         of routine - In cases involving conviction under s.302 /PC, it
         is only in exceptional cases that benefit of suspension of
         sentence can be granted - In considering prayer for bail in
         such case, Courts ought to_ consider factors like nature of
         accusation, manner in which crime was allegedly committed,
                                                                             E
         gravity of the offence, and desirability of releasing the accused
         on bail - These aspects were not considered by High Court
         - Accused directed to surrender to custody - Bail.

               According to the prosecution, respondents 2 to 4
         alongwith two co-accused assaulted the appellant's                  F
         brother with various sharp edged weapons which
         caused his death. The trial Court convicted the
         respondents 2 to 4 u/s. 302 IPC and sentenced them to
         life imprisonment. During pendency of criminal appeal,
         respondents 2 to 4 filed application for release on bail.           G
         The High Court granted bail. Hence the present appeal.

             Allowing the appeal, the Court

                                       859                                   H
    860        SUPREME COURT REPORTS           [2009] 1 S.C.R.


A      HELD:1.1. S.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
8 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
C 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. [Para 8) (865-G-H; 866-A-B]

        1.2. The mere fact that during the trial, the accused
D 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 accus~d persons have been found
  guilty. The mere fact that during the period when the
E 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
F sentence and thereafter grant bail. The High Court does
  not seem to have kept the correct principle in view. [Para
  9) (866-C-D]

      1.3. In cases involving conviction under s.302 IPC, it
  is only in exceptional cases that the benefit of
G suspension of sentence can be granted. The impugned
  order of the High Court does not meet the requirement.
  In considering the prayer for bail in a case involving a
  serious offence like murder punishable under s.302 IPC,
  the Court should consider the relevant factors like the
H
          MASOOD ALI KHAN v. STATE OF U.P. AND ORS.           861


      nature of accusation made against the accused, the             A
      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             B
      Court, while passing the impugned order. [Para 1O] [866-
      E-G]
          1.4. Looked at from any angle the order of the High
      Court is clearly indefensible and is set aside.                C
      Respondents 2 to 4 shall surrender to custody forthwith.
      [Para 12] [867 -8]

          Vijay Kumar v. Narendra and others (2002) 9 SCC 364;
      Ramji Prasad v. Rattan Kumar Jaiswa/ and another (2002) 9
      SCC 366; Kishori Lal v. Rupa and Ors. (2004) 7 SCC 638;        D
      Vasant Tukaram Pawar v. State of Maharashtra (2005) 5 SCC
      281 and Gomti v. Thakurdas and Ors. (2007) 11 SCC 160 -
      relied on.
                          Case Law Reference:
                                                                     E
r         (2002) s sec 364           relied on           Para 10
          (2002) s sec 366           relied on           Para 10
          (2004) 1 sec 638           relied on           Para 11
                                                                     F
          (2005) 5 sec 281           relied on           Para 11
          (2001) 11 sec 160          relied on           Para 11

          CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No. 213 of 2009.                                               G

1 ~       From the final Judgment and Order dated 16.10.2008 of
      the High Court of Judicature at Allahabad in Crl. Appeal No.
      3693 of 2007.

          V.K. Shukla and K.K.Mohan for the Appellant.               H
    862          SUPREME COURT REPORTS            [2009] 1 S.C.R.


A         The Judgment of the Court was delivered by

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

      2. Challenge in this appeal is to the order of a Division
  Bench of the Allahabad High Court granting bail to the
B respondent Nos. 2 to 4 during the pendency of Criminal Appeal
  No. 3693 of 2007.

        3. Background facts as projected by the complainant in
    FIR Case Crime No.198 of 2005 of P.S. Kotwali district,
c   Rampur, Uttar Pradesh are as follows:

        The FIR was lodged on 29.5.2005 stating that the
  respondent armed with deadly weapons alongwith co-accused
  Chhote and Raza came to a milk dairy where brother of the
  appellant namely Javed (hereinafter referred to as the
D 'deceased') was milking the buffaloes. He was attacked with
  Palaia Daon - a sharp edged weapon, knife and dagger due
  to which he fell down after receiving the fatal injuries. The
  accused persons thereafter fled away towards the forest after
  terrorizing people by firing in the air. Prior to this incident,
E respondents Lalam and Murshad and co-accused Chhote had
  stolen a buffalo of the deceased and for that they were required
  to pay Rs.20,000/- as per the decision of the panchayat held
  earlier. Appellant brought the injured to the hospital where he
  was declared dead. The incident had taken in a broad day light
F in a busy Hazratpur crossing at Rampur City and was witnessed
  by many persons.

       After investigation, charge sheet was filed. On the basis
  of statement made by respondent Lalam recovery of a Pata!
G was made. Subsequently, blood stained dagger was also
  recovered. Similarly, one country made pistal and five life
  cartridges were recovered. Accused Raza Ali could not be
  apprehended and he has absconded. Learned Additional
  Sessions Judge, Rampur, placing reliance on the evidence of
H the witnesses found the respondents guilty. Each of the
    MASOOD ALI KHAN v. STATE OF U.P. AND ORS.                863
             [DR. ARIJIT PASAYAT, J.)

respondents 2 to 4 and co-accused Chhote was awarded life           A
sentence. An appeal (Criminal Appeal No. 3693 of 2001) was
filed before the High Court. The respondents filed an application
for release on bail. By the impugned order bail has been
granted.
                                                                    B
    4. Learned counsel for the appellant submitted that the
High Court's order is indefensible. By a practically non-
reasoned order, bail has been granted. Various other factors
have been pointed out, they are essentially as follows:

          (a) No opportunity was given by the High Court to         C
    public prosecutor as required under amended proviso (1)
    of Section 389 Cr.P.C.

           (b) The Division bench completely ignored the fact
    that respondents Lalam and Akbar during the trial had fled      D
    from the custody and were convicted for this offence by
    C.J.M. Rampur.

           (c) High Court ignored the fact that it was the case
    of brutal broad daylight murder for which accused were not
    granted bail by the Sessions or High Court during Trial.        E

          (d) No cogent or detailed reasons were given by the
    High Court while granting bail to Respondents in their
    appeal against their conviction which is a mandatory
    requirement of Session 389 Cr.P,C,                              F

         (e) Division Bench of High Court ironically and
    without applying its judicial mind granted bail to the
    Respondents in their appeal and suspended their
    sentence of life imprisonment during pendency of their          G
    appeal even when there was no application under Section
    389 Cr.P.C. for suspension of sentence by respondents.

          (f) The Division Bench of the High Court also ignored
    the criminal history of the accused persons and did not
    take into consideration the possibility of misuse of liberty    H
    864           SUPREME COURT REPORTS               [2009] 1 S.C.R.


A         by respondents.

         5. There is no appearance on behalf of respondents in
    spite of service of notice.

       6. At the outset it needs to be noticed that the High Court
B has not referred to any circumstance which warrants grant of
  bail. The only reason given reads as follows:

          "The allegations made in the FIR and the nature of injuries
          mentioned in the post mortem report and the weapons
c         alleged to have been used by the present appellants in the
          incident are sufficient to grant bail to the appellants as the
          fatal ante-mortem injuries appear to have been caused by
          Patal (Dav), which has been assigned on the co-accused
          Chhotey."
D        7. Section 389 of the Code empowers the Court to
    suspend the sentence pending the appeal and for release of
    the appellant on bail. Section 389 so far relevant reads as
    follows:

E         "389. Suspension of sentence pending the appeal; release
          of appellant on bail - (1) Pending any appeal by a
          convicted person, the Appellate Court may, for reasons to
          be recorded by it in writing, order that he execution of the
          sentence or order appealed against be suspended and,
F         also, if he is in confinement, that he be released on bail,
          or on his own bond.

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

H               Provided further that in cases where a convicted
             MASOOD ALI KHAN v. STATE OF U.P. AND ORS.                 865
                      [DR. ARIJIT PASAYAT, J.]
               person is released on bail it shall be open to the Public A
               Prosecutor to file an application for the cancellation of the
               bail.

              (2) The power conferred by this section on an Appellate
              Court may be exercised also by the High Court in the case
                                                                              8
              of an appeal by convicted person to a Court subordinate
              thereto.
    >t-
              (3) Where the convicted person satisfies the Court by which
              he is convicted that he intends to present an appeal, the
              Court shall, -                                              C

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

                      (ii)   where the offence of which such person has D
                             been convicted is a baliable one, and he is
                             on bail,

              order that the convicted person be released on bail unless
              there are special reasons for refusing bail, for such period    E
              as will afford sufficient time to present the appeal and
              obtain the orders of the Appellate Court under sub-section
              (1), and the sentence of imprisonment shall, so long as he
              is so released on bail, be deemed to be suspended.

              (4) When the appellant is ultimately sentenced to               F
              imprisonment for a term or to imprisonment for life, the time
              during which he is so released shall be excluded in
              computing the term for which he is so sentenced."

"             8. Section 389 of the Code deals with suspension of G
          execution of sentence pending the appeal and release of the
    1-    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 H
    866          SUPREME COURT REPORTS              (2009] 1 S.C.R.


A sentence or order appealed against. If he is in confinement, the      -t- •
  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
B and grant of bail should not be passed as a matter of routine.
       9. 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 looses
  significance when on completion of trial, the accused persons
c 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
D 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.                                           .....
                                                                                '
       10. In Vijay Kumar v. Narendra and others (2002 (9) SCC
E 364) and Ramji Prasad v. Rattan Kumar Jaiswal 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. The impugned order of the High Court does
  not meet the requirement. In Vijay Kumar's case (supra) it was
F
  held that in considering 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
G 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 passing the impugned order.

H         11. The parameters governing Section 389 of the Code
   MASOOD ALI KHAN v. STATE OF U.P. AND ORS.             867
            [DR. ARIJIT PASAYAT, J.]
were highlighted in Kishori Lal v. Rupa and Ors. (2004 (7) SCC A
638), Vasant Tukaram Pawar v. State of Maharashtra (2005
(5) SCC 281) , Gomti v. Thakurdas and Ors. (2007 (11) SCC
160).

      12. Looked at from any angle the order of the High Court
is clearly indefensible and is set aside. Respondents 2 to 4 8
shall surrender to custody forthwith.

     13. The appeal is allowed

8.8.8.                                      Appeal allowed.    C




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