Courtesy: Armaan Khanduja
When a person is convicted by the trial court, they have the remedy to file an Appeal before the Appellate Court to challenge the conviction. However, during the pendency of the appeal, the convicted person may still be required to serve their sentence unless the appellate court passes an order to the effect of Suspension of the Sentence under Section 430 of Bhartiya Nagarik Suraksha Sanhita (earlier Section 389 of Criminal Procedure Code, 1973).
In common parlance, Suspension of Sentence is also referred to as Appeal Bail. Section 389 of the CrPC/430 BNSS grants the appellate court the power to suspend the execution of a sentence or order appealed against during the pendency of the appeal. The provision allows the convicted person to seek relief from serving the sentence immediately, especially when there are reasons to believe that the appeal may succeed.
Section 389(1) CrPC reads as follows:
“Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, if the person is in confinement, that he be released on bail, or on his own bond.”
Section 430(1) of BNSS reads as follows:
“Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond or bail bond”
In the case of State of Haryana v. Hasmat (2004), the Supreme Court distinguished between regular bail and bail during the pendency of appeal against conviction, and held as follows:
“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 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.”
What are the grounds for Suspension of Sentence that may be pressed before the Hon’ble Allahabad High Court?
The Appellate Court considers several factors before granting suspension of sentence. The Supreme Court in various cases has laid down the grounds for suspension of a sentence:
- Prima Facie Grounds of Success in Appeal: The most significant factor is the likelihood of success in the appeal. The court must believe there is a reasonable chance that the conviction may be overturned. In the landmark case of Omprakash Sahni Vs Jai Shankar Chaudhary and Anr (2023), the Hon’ble Apex Court has held that a Sentence can be suspended in appeal only if the convict has fair chances of acquittal:-
“The endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the above-said question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision and disposal.”
- Nature and Gravity of the Offence: The seriousness of the crime committed is another factor that the court considers. The Court considers all the relevant factors like the nature of the accusation made against the accused, how the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after he has been convicted for committing a serious offence.
- Behaviour of the Convict During Bail: If the convict was on bail during the trial and complied with the conditions of bail without any misuse of liberty, this weighs in favour of suspending the sentence. In Angana & Anr. v. State of Rajasthan (2009), the Supreme Court granted suspension of the sentence, noting that the appellants were on bail during the trial and had not committed any offence or violated their bail conditions.
- Delay in Disposal of Appeal: If the appeal is not likely to be heard and disposed of promptly, the court may suspend the sentence to prevent unnecessary hardship. Prolonged incarceration is a factor that resonates with the court. Appellate courts often acknowledge that delays in hearing appeals should not result in a convicted person serving the sentence if there is a chance of acquittal. In the case of Atul @ Ashutosh Vs. State Of Madhya Pradesh (CRL.APPEAL No.579 of 2024) Hon’ble Apex Court, while holding that the delay in deciding the appeal is a sound ground for the suspension of sentence, observed as follows:
“The appeal against conviction of the year 2022 is not likely to reach before the convict completes the entire sentence. Hence, a case is made out for grant of suspension of sentence pending the appeal and grant of bail,”
- Health and Age of the Convict: Courts may consider the health and age of the convict, especially when they are elderly or suffering from serious medical conditions. In such cases, the court may show leniency in suspending the sentence. A constitutional court, such as the Hon’ble Allahabad High Court must not be rigid on norms but display empathy, equity, and above all, reason in its judgments of discretion.
What is the position of law regarding suspension of sentence in serious crimes like murder?
In cases involving serious crimes, particularly murder or rape, the court takes a stringent approach when considering the suspension of sentence during the pendency of an appeal. In serious offences like murder, the courts have consistently emphasized that such relief should only be granted in exceptional circumstances.
In the case of State of Haryana v. Hasmat (2004), the Hon’ble Supreme Court held that mere good behaviour during parole is not sufficient to warrant the suspension of a sentence in serious offences like murder. It observed that courts must apply greater scrutiny when considering such applications, particularly given the gravity of the crime.
In Vijay Kumar v. Narendra and Others (2002), it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 of the IPC, the court should consider the relevant factors like-
- The nature of the accusations made against the accused,
- How the crime was committed,
- The gravity of the offence, and
- Whether it is desirable to release the accused on bail after conviction.
In Omprakash Sahni v. Jai Shankar Chaudhary & Anr. Ec. (2023), the Supreme Court reaffirmed the precedent set in Vijay Kumar v. Narendra (2002) and Ramji Prasad v. Rattan Kumar Jaiswal (2002) that suspension of sentence in murder cases should be granted only in exceptional cases considering the relevant factors like the nature of accusation, manner of commission of crime, gravity of the offence, and desirability of releasing the accused on bail among others.
What are the Conditions imposed by the Court for granting bail during suspension of sentence?
When a court suspends a sentence under Section 389 CrPC and grants bail, it typically imposes conditions to ensure the accused complies with the legal process. The Supreme Court in Bhagwan Rama Shinde Gosai v. State of Gujarat (1999) laid down that “When 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 impose similar conditions when bail is granted.”
The court may impose certain conditions while suspending the sentence, such as payment of fines or compliance with specific terms. In Guddu v. State of U.P (2023), the Allahabad High Court granted bail to the appellant during the pendency of the appeal on the condition that the fine imposed was to be paid within six weeks.
What is the Difference Between Suspension of Sentence and Suspension of Conviction?
When the appellate court suspends the sentence, it means the convicted person does not need to serve their punishment during the pendency of the appeal but the conviction remains in force until the appeal is resolved. However, in case of suspending the conviction itself, the conviction has been stayed. This is important in cases where the conviction leads to significant legal consequences, such as disqualification under the Representation of the People Act, 1951.
Can a Court Suspend Both the Sentence and the Conviction?
Under Section 389(1), the court has the power to suspend both the sentence and the conviction. This principle was clarified by the Supreme Court in Rama Narang v. Ramesh Narang (1995), where the court recognized that the expression “order appealed against” includes both the sentence and the conviction. The court also stated that in appropriate cases, where the conviction leads to irreversible consequences, the appellate court can stay the conviction itself.
Further, it was observed that even if it is considered that the CrPC does not provide the High Court with the power to stay a conviction under Section 389(1), the court can still exercise this power through its inherent jurisdiction under Section 482/528 BNSS. This section provides the High Court with inherent jurisdiction to make orders as may be necessary to prevent abuse of the process of court and to secure justice.
How Does the Suspension of Conviction Affect Public Office Holders?
Under Section 8(3) of the Representation of the People Act, 1951, a person convicted and sentenced to imprisonment for two years or more is disqualified from contesting elections or holding public office. However, if the appellate court suspends the conviction under Section 389 CrPC, the disqualification no longer applies.
In Annu Tandon & Ors. v. State Through Railway Protection Force (2021), the Allahabad High Court considered an application for the suspension of both the sentence and the conviction. The appellant argued that unless his conviction was stayed, he would be disqualified from contesting the upcoming elections under Section 8(3). The court “his conviction and sentence, prima facie, appears to be without any specific evidence against him and unless the conviction and sentence of the appellant no. 4 are suspended, he will not be able to put forth his candidature in the upcoming Assembly elections in view of the bar contained in Section 8 (3) of the Representation of the People Act, 1951, which would cause such an injury to the appellant no. 4, as cannot be compensated in case he succeeds in this appeal”, so it suspended both his conviction and sentence.
What happens if appeal is dismissed finally?
If the appeal is dismissed, the suspension of the sentence ends immediately, and the accused whose appeal has been dismissed has to surrender to serve out the sentence imposed upon him. Any bail granted during the suspension will stand revoked, and the individual shall be taken into custody to complete the sentence.
What should an Application for Suspension of Sentence include?
The application for suspension of sentence under Section 389 CrPC should include:
- Details of the Conviction: The application must mention the details of the conviction, including the nature of the offence, the sentence imposed, and the court that passed the judgement.
- Grounds for Suspension: The application should state the reasons why the sentence should be suspended. These may include a likelihood of success in the appeal, health issues, good behaviour, or delays in the appeal process.
- Evidence Supporting the Request: If the application is based on specific grounds like poor health, relevant medical reports should be attached. Similarly, if the appeal is likely to succeed, the legal arguments supporting this should be clearly presented.
To conclude, an Application accompanying the Criminal Appeal for Suspension of the Sentence must provide for all the facts and circumstances which highlight the defects in the trial, and those which weigh in favour of the Applicant/ Convict and make out a prima facie case before the Hon’ble Court that the conviction may be held bad in law.