Holding

Suspension of sentence under Section 389 CrPC is generally not desirable for convictions under the Prevention of Corruption Act, but the Supreme Court directed early disposal of the appeal and permitted a fresh bail application if the appeal is not concluded by the stipulated date.

Summary

Shiv Kumar was convicted under sections 7 and 13(2) of the Prevention of Corruption Act, 1988 and sentenced to three years' imprisonment. He applied to the Delhi High Court for suspension of his sentence under Section 389 of the Code of Criminal Procedure, arguing that he had already served one year and eight months and that the statutory minimum for the offence was six months. The High Court rejected the application, prompting an appeal to the Supreme Court. The Supreme Court observed that, as a general rule, suspension of sentence under Section 389 is not advisable for offences under the Prevention of Corruption Act, but directed the High Court to dispose of the appeal as early as possible and allowed the appellant to seek fresh bail if the appeal is not concluded by March 2009. The appeal was therefore disposed of with the directive for expeditious disposal.

Issues considered

Whether suspension of sentence under Section 389 CrPC is permissible for a conviction under the Prevention of Corruption Act, 1988.
Whether the High Court erred in rejecting the appellant's application for suspension of sentence.
Whether the circumstances of the case warrant an order for early disposal of the appeal and a fresh bail application.

Legislation cited

Code of Criminal Procedure, 1973s. 389
Prevention of Corruption Act, 1988s. 13(2), s. 7

Subjects

suspension of sentenceSection 389 CrPCPrevention of Corruption Actappeal disposalbailearly disposalconviction

Judgment

[2008] 17 S.C.R. 568 e
~

A SHIV KUMAR
v.
... "(
STATE OF N.C.T. OF DELHI
(Criminal Appeal No. 2034 of 2008)
DECEMBER 15, 2008
B
[DR. ARIJIT PASA VAT AND DR. MUKUNDAKAM
SHARMA, JJ.]
~-
Code of Criminal Procedure, 1973-S. 389-Suspension
of sentence during pendency of appeal and release of accused
c on bail - Conviction ulss. 7 and 13(2) of Prevention of
Corruption Act and sentence of three years - Application for ,.,.
suspension of sentence on the plea that minimum sentence
for the offence was only six months and he had already served
sentence of one year and eight months - Rejected by High
D Court - On appeal, Held: Generally for conviction under the
Act, protection uls.389 not desirable-However, in the peculiar
facts of the case, direction to High Court for early disposal of
the appeal - Prevention of Corruption Act, 1988 - ss. 7 and
13 (2).
E Appellant was convicted u/ss. 7 and 13(2) of
Prevention of Corruption Act, 1988 and sentenced to three
years imprisonment. Appellant filed an application seeking
suspension of sentence in terms of Section 389 Cr.P.C, on
the ground that he had suffered more than 1 year and 8
F months sentence. He contended that the minimum
sentence for the offence was only six months; and that he
7-
being the peon in the depart!llent concerned had no ....
authority to issue any domicile certificate. High Court
J
rejected the application. Hence the present appeal.
Disposing of the appeal, the Court
G
HELD: Where the accused is convicted for offence
punishable under Prevention of Corruption Act, 1988, it
would not be prudent and desirable to give protection u/ -.--
s. 389 Cr.P.C. However taking into account th~ peculiar ....
H 568
SHIV KUMAR v. STATE OF N.C.T. OF DELHI 569

circumstances of the case, the High Court is requested to A
, --, dispose of the appeal as early as practicable. In case the
appeal is not disposed of by the end of March, 2009, it shall
'
be open to the appellant to move to the High Court afresh
for bail. [Paras 9 and 10] [571-E-F; 572-G]
Bhagwan Rama Shinde Gosai vs. State of Gujarat (1999) B
4 SCC 421 and Vijay Kumar vs. Narendra (2002) 9 SCC 364,
referred to.
_.._ Case Law Reference:
(1999) 4 sec 421 referred to Para 6
c2002) 9 sec 364 referred to Para 7 c
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2034 of 2008.
From the Judgment and Order dated 19.8.2008 of the High
Court of Delhi at New Delhi in Crl. M.B. 221/2008 in Crl. Appeal
No. 253/2007. D
Rishi Malhotra for the Appellant.
+ B.B. Singh, Sadhana Sandhu and Anil Jatiyar for the
Respondent.
The Judgment of the Court was delivered by
E
DR. ARIJIT PASAYAT, J.1. Leave granted.
2. Challenge in this appeal is to order passed by a learned
Single Judge of the Delhi High Court rejecting the application
filed by the appellant for suspension of sentence in terms of
Section 389 of the Code of Criminal procedure, 1973 (in short
the 'Code'). The stand of the appellant is that he had suffered F
-~
\ more than 1 year and eight months' custody and therefore the
sentence should be suspended. The High Court noted that earlier
also asimilar prayer was made which was rejected by order
dated 18.9.2007.
3. Learned counsel for the appellant submitted that he was G:
only a peon who had no authority to issue any domicile
certificate. Therefore the conviction should not have been
.. _t recorded. In any event the sentences imposed for offence
punishable under Sections 7 & 13 (2) of the Prevention of
Corruption Act, 1988 (in short the 'Act') are harsh. In such a case H
570 SUPREME COURT REPORTS [2008] 17 S.C.R.

A minimum sentence is six months but in the instant case three
years imprisonment has been awarded.
r- '(
4. Learned counsel for the State on the other hand
supported the judgment.
5. Several decisions were cited at the bar.
B 6. In Bhagwan Rama Shinde Gosai v. State of Gujarat
[1999(4) sec 421] it was inter alia held as follows:
"3. When a convicted person is sentenced to a fixed period
of sentence and when he files an appeal under any statutory _A..

right, suspension of sentence can be considered by the
c appellate court liberally unless there are exceptional
circumstances. Of course if there is any statutory restriction
against suspension of sentence it is a different matter.
Similarly, when the sentence is life imprisonment the
consideration for suspension of sentence could be of a
D different approach. 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. Otherwise the very valuable right of
appeal would be an exercise in futility by efflux of time. When
E the appellate court finds that due to practical reasons such
appeals cannot be disposed of expeditiously the appellate
court must bestow special concern in the matter of
suspending the sentence. So as to make the appeal right,
meaningful and effective. Of course appellate courts can
F impose similar conditions when bail is granted."
7. In Vijay Kumar v. Narendra [2002(9) SCC 364] it was +
inter alia observed as follows:
"On perusal of the record and on consideration of the
submissions made by the learned counsel appearing for the
G parties, we are of the view that in the context of the facts and
circumstances of the case the High Court was in error in
passing the order releasing the respondents on bail. The
High Court has neither given any reason nor has indicated ·t _..,
any ex_ceptional circumstance for granting bail to the
respondents. In the above circumstances, it is difficult f9r·
H
SHIV KUMAR v. STATE OF N.C.T. OF DELHI 571
[DR ARIJIT PASAYAT, J.]

us to even surmise the circumstance which prompted the A
learned Single Judge to consider the accused persons to
be entitled to the discretionary relief of bail pending the
appeal. The principle is well settled that .in considering the
prayer for bail in a case involving a serious offence like
murder punishable under Section 302 IPC, the court should B
consider the relevant factors like the nature of the 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 C
of murder. Our attention has not been drawn to any material
which would show that the learned Single Judge took into
consideration the relevant factors while passing the bail
order. We refrain ourselves from making any observation
touching on merits of the case lest it may prejudice any of
the parties. Suffice it to state that we do not consider this a D
fit case for grant of bail to the respondents during pendency
+ of the appeal filed by them."
8. Of course both these cases related to offence punishable
under Section 302 IPC.
9. This court has observed in several cases that where the E
accused is convicted for offence punishable under the Act, it
would not be prudent and desirable to give protection under
Section 389 of the 'Code'.
10. However taking into account the peculiar circumstances
of the case we request the High Court to dispose of the appeal F
as early as practicable. To avoid unnecessary delay, let the
appellant appear before the High Court on the 6th of January,
2009. We request the learned Chief Justice of the High Court to
allot the case to an appropriate Bench. Needless to say the
appeal shall be disposed of, as noted above, as early as
practicable. In case the appeal is not disposed of by the end of G
March, 2009, it shall be open to the appellant to move to the High
Court afresh for bail and if such occasion arises needless to say
the application shall be dealt with in accordance with law.
11. The appeal is disposed of accordingly.
K.Klf. Ai)peal disposed of. H