In CRL.A. 729/2019-DEL HC- Appellate Court, at stage of suspension of sentence and release on bail till disposal of appeal, has to examine if there is any patent infirmity in order of conviction; Evidence is not to be re-assessed to suspend execution of sentence: Delhi HC Justice Anoop Kumar Mendiratta [04-08-2022]

Read Order: ANIL v. STATE 

Mansimran Kaur

New Delhi, August 5, 2022:  The Delhi High Court has observed that the difference between grant of bail under Section 439 Cr.P.C during trial as well as (suspension of sentence) under  Section 389 Cr.P.C after conviction is well distinguished and the presumption of innocence which is provided at the time of trial does not continue after the conviction of the accused.

 A Single bench of Justice Anoop Kumar Mendiratta dismissed the application  instituted under Section 389 of Cr.P.C. seeking suspension of sentence amid pendency of the appeal was preferred on behalf of the appellant. 

The Single Judge bench was of the view that the mere fact that during the Trial accused were granted bail and there was no allegation of misuse of liberty, is not of much significance, as the accused was found  guilty on conviction.

The appellant was convicted through judgment dated March 25 , 2019 for the offences under Sections 498A/304B of the Indian Penal Code and Section 4 of Dowry Prohibition Act, 1961.

Through  order dated April 30, 2014  the appellant was sentenced to undergo RI for a period of 02 years with fine of Rs.10,000/- (in default of payment of fine, to undergo SI for 06 months) for offence under Section 498A I.P.C., to undergo regular imprisonment  for a period of 10 years for offence under Section 304B I.P.C. and to undergo simple imprisonment  for a period of 01 year with fine of Rs.5,000/- (in default of payment of fine, to undergo SI for 03 months) for offence under Section 4 of Dowry Prohibition Act, 1961.

After hearing the submissions of the parties, the Court took into consideration  the judgment of the Apex Court in the case of Kishori Lal v. Rupa wherein the Top Court indicated the factors that require to be considered by the Court while granting benefit under Section 389 in cases involving serious offences like murder, etc.

It was further noted by the Court that in view of the mandate of Section 389 Cr.P.C,  the principles are different in the case of sentences not exceeding three years as well as in case of bailable offences. Also in the cases where the person is convicted of offences punishable with death or imprisonment for life or imprisonment for a term not less than ten years, an opportunity is to be given to the public prosecutor under provision to Section 389(1) Cr.P.C.

In addition to the same, the Court further stated the court is obliged to consider whether any cogent grounds have been disclosed and whether there is likelihood of delay in disposal of appeal. Even though a detailed examination of the merits of the case may not be required for suspension of sentence, the exercise of jurisdiction is to be made in a judicious manner (based on well settled principles) and for the reasons to be recorded in writing. The difference between grant of bail under Section 439 Cr.P.C during trial as well as (suspension of sentence) Section 389 Cr.P.C after conviction is well distinguished and the presumption of innocence which is provided at the time of trial does not continue after the conviction of the accused, the Court further remarked. 

The mere fact that during the Trial accused were granted bail and there was no allegation of misuse of liberty, is not of much significance, as the accused have been found guilty on conviction. The mere fact that during trial liberty of bail was not misused may not per se warrant suspension of sentence and grant of bail, the Court stated. 

However if the convict has undergone more than half of the sentence in case of fixed term sentence and disposal of appeal is likely to take some time, the matter needs to be seen in light of observations made by the Hon’ble Supreme Court in the case of Sonadhar v. The State of Chhattisgarh, the Court observed. 

Thus, the Court  concluded by reiterating that the Appellate Court, at the stage of suspension of sentence and release on bail till disposal of appeal, has to examine if there is any patent infirmity in the order of conviction that renders the conviction prima facie erroneous. The evidence is not to be re-assessed or re-analyzed to suspend the execution of the sentence. The detailed observations on merits of the case are not called for, at this stage lest it prejudices the case of the petitioner but the matter has been seen in the light settled principles of law.

Hence, the Court opined that in the present case there were no grounds for suspension of sentence till disposal of appeal were made out. 

The application was accordingly dismissed.