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Judgment
N.K. Jain, J.—In the given case, on consideration, a learned single Judge of this Court observed, wherein the accused has been sentenced
to imprisonment for ten years and less, as there is no uniform practice among the Honourable Judges of this Court to suspend the sentence after
conviction by a competent Court, if appeal is pending for two years and to ensure uniformity among all the Honourable Judges and to avoid
conflicting orders, referred the matter to a larger Bench, to have an authoritative pronouncement by a detailed order dated 29.4.1998.
The matter was referred to a Division Bench, to which the learned single Judge was also a party, and the Division Bench observed that since
there is already a judgment by the Division Bench, the matter may be placed before the Hon''ble the Chief Justice to constitute a Full Bench to
settle the question referred to by the learned Single Judge. As such, as per the orders of the Hon''ble the Chief Justice the matter has been placed
before us.
As culled out, the question referred to our reference is whether an accused convicted for an offence and sentenced to ten years imprisonment
and less, can be granted bail, as a matter of course, if the appeal is pending for two years.
Learned counsel for the petitioners submits that the earlier decisions of the Division Benches, pertaining to imprisonment for life, are not
applicable wherein, in the instant case, the sentence has been imposed upto ten years, and normally, for the disposal of the criminal appeal, it will
take more than six years and that if the case ended in acquittal after six years, the period which the accused spent in jail would amount to
deprivation of their right to life and liberty. In such circumstances, he prayed that this Court should give a general direction to suspend the sentence
and to grant bail to such accused instantly, even without issuing notice to Public Prosecutor. Learned Counsel also submits that as per the
provisions of Criminal Procedure Code, on the suspension of sentence and release on bail, though Judicial Magistrates have certain restrictions, but
the Sessions Judges and the Hon''ble Judges of High Court, have no restriction to suspend the sentences. Therefore, the execution of the sentence
be suspended and bail can be granted as a matter of course. Learned counsel relied on the decisions in Uthaman and Others Vs. State of Kerala, ,
in Shanti Behal v. State, 1993 (3) Cri 648, in Harbhajan Singh v. State of Punjab, 1997 Cri.L.J.1424 and also relied on the abstract of the
decision of the Supreme Court in Kashmira Singh Vs. The State of Punjab, and on the basis of the above mentioned decisions, reiterated the
contention that an uniformity to be maintained and sentence be suspended and bail be granted as a matter of course, if appeal is pending for two
years.
On the other hand, learned Public Prosecutor submits that each case is to be seen on its own facts and no general order can be issued to
maintain uniform practice, even in the case where the sentence is upto ten years or less. Learned Public Prosecutor further submits that a Division
Bench of this Court in P. Manickam v. The state of Tamil Nadu etc., 1998 (1) L.W. (Cri.) 321 has discussed it at length and the learned single
Judge, who has referred the matter, has also observed that the principle laid down equally applies to the cases where the accused has been
sentenced to life imprisonment and where the punishment is upto ten years. Therefore, no direction can be issued as called for. Learned Public
Prosecutor submits that if a general direction, blanket in nature, is issued, it will amount to interfering with the judicial discretion and it will also
amount to passing orders mechanically, which is not certainly the object to be achieved. He also submits that in none of the cases mentioned
above, any general direction has been issued as prayed for and so they are not helpful. Learned Public Prosecutor submits that while considering
whether there is prima facie case for suspension and also to ascertain and verify the fact regarding age, ailment, and while the accused was in bail
granted earlier during trial, his antecedent and conduct etc. have to be seen as number of accused persons, after getting bail in trial Court, reported
absconding, and therefore notice is necessary before considering bail application. Learned Public Prosecutor further submits that so far as the
suspension of sentence in Supreme Court after admitting SLP is concerned, they are being preferred after completing two stages, i.e. trial and first
appellate stage and meanwhile, accused would have undergone substantial sentence, which is not the position here, as here the accused hardly
remain in jail till the conviction order is passed. So, the petitioners cannot take any advantage of the Kashmira''s case.
Learned Public Prosecutor submits that in Kashmira Singh Vs. The State of Punjab, , it was observed that the accused served six months
rigorous imprisonment for the offence u/s 323 I.P.C. and was on bail throughout and thereafter on appeal, he was convicted for the offence u/s
302 I.P.C. and sentenced for life and when the SLP was admitted, the accused has spent in jail for 4-1/2 years and the appeal instituted in the year
1972 are being heard and the present appeal is of the year 1974 and will take some time for hearing. Considering the position, it was observed
that what will be the position of convict persons who remain in jail and ultimately got acquittal and under the said circumstances, Their Lordships
observed that it is absolutely essential and the practice which this Court has been following in past must be reconsidered when this Court was not
in a position to hear the appeal of the appellant in a reasonable time. The Court should ordinarily, unless there are cogent reasons for acting
otherwise, release the accused on bail in cases, when special leave was granted. Now, learned Public Prosecutor submits that no specific direction
was issued to grant bail in all cases, as a matter of course, in that case. Learned Public Prosecutor also submits that here, generally bail is granted
in the trial Court, even when the matter is at committal stage at Magistrate''s Court, in a routine manner and is continued till the judgment is
pronounced by Sessions Court and as a matter of fact, the conviction of the accused starts only from the date of conviction and if bail is granted,
as a matter of course, even without their being remain in jail for sometime and substantial period, the immediate suspension after conviction, will
affect the society at large, and the law and order situation will create problem and the very purpose of the Code will be defeated. Learned Public
Prosecutor also submits that every conviction is not going to end in acquittal, as suggested by the learned counsel for the petitioner so as to grant
bail in two years, as a matter of course and allowing any such practice will defeat the purpose and create law and order situation.
We have given our careful consideration to the arguments of the learned counsel on either side and perused the materials available on record
and the case law.
It will be appropriate to deal with, in short, the decisions of two Division Benches of this Court and other cases referred to.
A Division Bench of this Court evolved a rule of thumb method in ordering suspension of sentence and releasing persons who are found
convicted u/s 302 I.P.C. and suspending the sentence on the ground that the appeal could not have been disposed of in a reasonable time, except
in the case of murder for gain, bride burning, dowry death and murder committed in such a fashion as to shock the conscience of the Court.
Another Division Bench of this Court was not agreeable to the aforesaid proposition. It has observed that,
... Though there is a saying ""bail is a rule, rejection is an exception"" but, after trial---"" converse has to be the rule"", and it has to be viewed with the
changes in society having regard to the current social problems, where bails are granted in cases which are shocking the conscience of the society
and criminals go unpunished, it amounts to thereby encouraging the criminals and in the ultimate making, justice suffers by weakening the system''s
Credibility. Court must not only keep in view the right of the criminal but also the right of the victim of the crime and the society at large. Not that in
all cases of conviction bail should be denied, Whenever the crimes are heinous in nature, shocks the conscience of the society, manner of
committing is so brutal and when circumstances stare at the accused, in such cases bail should not be granted...
Regarding the contentions of the convicted accused therein that he is in jail since two years, and no way connected with the crime and there are no
credible evidence against him, it was observed,
the Criminal Rules of Practice contemplates preparation of paper book within a certain period of time he can resort to that course, after
preparation of paper book seek for an earlier disposal of the appeal itself. It has been further observed that ''if bail to be granted on the ground that
there will be delay in disposal of the appeal, the accused may indefinitely delay the hearing of the appeal since he is already on bail and it amounts
to giving a leverage to flee from justice---
A Division Bench of the Kerala High Court observed that ''the finding given by the trial Court after an elaborate trial and careful assessment of
evidence, cannot be totally disregarded while considering a bail application u/s 389(1) Cr. P.C. by the appellate Court ''and rejected the bail
application, believing that the appeal is against conviction. In Uthaman and Others Vs. State of Kerala, a Full Bench of the Kerala High Court,
disagreeing with this, has held that ''a conviction recorded by the trial Court cannot operate as a presumption of existence of reasonable grounds
for believing that the accused has been guilty of the offence''. In Kashmira Singh Vs. The State of Punjab, the Apex Court has held that where the
Court is not in a position to dispose of the appeal for 5 or 6 years in a measurable distance of time, bail should be granted to the appellant. In
Shanti Behal v. State, 1993 (3) Cri 648 it has been held that Section 389 Cr.P.C. does not stipulate that in a case where Court of Sessions has
passed a sentence of death, the accused cannot be ordered to be released on bail and no such limitations can be read in Section 389 of the Code.
Thus, u/s 389 Cr.P.C. pending an appeal by a convict person, the appellate Court can order the suspending of the execution of the sentence or the
suspension of the order appealed against and further observed that detailed examination of merits of case should be avoided. In Harbhajan Singh
and Others Vs. The State of Punjab, a Division Bench of Punjab and Haryana High Court has considered suspension of sentence and grant of bail
considering the fact that by the time of appeal would be finally heard, the accused would however be served against the full or a substantial portion
of the sentence imposed upon them. In Ajudhia Prasad Vs. State, following the judgment of above Division Bench of Punjab and Haryana,
Harbhajan Singh and Others Vs. The State of Punjab, suspended the sentence of imprisonment and granted bail. In Gyan Chand Vs. The State of
Rajasthan, Rajasthan High Court has held that the power of the High Court in suspending the sentence during the pendency of the appeal has not
been taken away by Section 32A of the NDPS Act, but they have been preserved by Section 36B of the Act and the High Court can exercise its
powers of suspending the sentence during the pendency of the appeal subject to the conditions and limitations mentioned in Sec.37 of the Act.
In so far as the argument that in cases where the sentence of imprisonment is ten years, even without issuing notice to the Public Prosecutor,
bail should be granted except for the offences grievous in nature having category like bride burning, dowry death, murder for gain etc. is
concerned, there is no doubt that u/s 389 Cr.P.C. the convict appellant can be released on bail, by suspending the execution of sentence, by the
Judges, in exercise of the powers, discretionary powers, irrespective of the offence being bailable or not. There is no provision in the Code of
Criminal Procedure requiring the convict to give advance notice before the appeal is being admitted. Pending any appeal by a convict person,
appellate Court may for the reasons to be recorded in writing, order that the execution of the sentence or the order appealed against, be
suspended and, also, if he is in confinement that he be released on bail, or on his own bond, as stated in 389(1) Cr.P.C. The language employed
''may'' only indicates that it is only the discretion vested on the appellate Courts to release the convicted persons on bail, but not automatically,
whereas as per Section 389(3) Cr.P.C. if the accused intended to file an appeal, the convict accused shall be released on bail, if
imprisonment/term is not exceeding three years. Otherwise, special reasons to be recorded for refusal. So, when the appeal is preferred against
conviction in the High Court, the High Court has ample power and discretion to suspend the sentence, but the discretion has to be exercised
judiciously depending upon the facts and the circumstances of each case. While considering the suspension of sentence, as stated, each case is to
be considered, on the basis of nature of the offence, manner in which occurrence had taken place, age and antecedent and it is also to be seen,
whether in any manner, liberty has been misused in the bail granted earlier and whether by his conduct, the accused has disentitled himself to the
concession so granted and other circumstances like jumping of bail etc. As all the above facts could not be disclosed while filing the appeal, nor
they are within the knowledge of the accused himself, we are of the view that it is necessary to issue notice to Public Prosecutor. Under the
circumstances, in our opinion, notice to Public Prosecutor before considering the bail application for suspension of sentence is necessary, even the
imprisonment is upto ten years or less.
The other contention regarding the grant of bail pending appeal for two years is concerned, in none of the cases cited by the learned counsel
and discussed above, it is stated that after two years, bail should be granted as a matter of course, wherein in the above cases each case has been
considered on its own facts and circumstances and granted bail. In our view, this is only the judicial course open to the concerned Judge. So, the
petitioners cannot take advantage of the above cases to lay down a proposition as argued in this reference.
It is also brought to our notice that bail is granted in general in all cases as per the practice prevailing before the trial Court and the same is
continued even after the matter is committed to Sessions Court. According to the learned counsel for the petitioners, it is the practice prevailing as
per the verdict of the Apex Court reported in Kewal Krishnan''s case,. To this, learned Public Prosecutor submits that in most of the cases, the
period of commencement of the sentence starts from the date of the order of conviction only and by the time, the appeal is preferred, he did not
serve sufficient imprisonment at all and if two years rule as argued is applied and sentence of imprisonment upto ten years is suspended and in
routine manner the accused is released on bail, it will defeat the object to be achieved. We have given our careful consideration to Kewal
Krishnan''s case. In that case there was a counter case, one on police report and the other or criminal complaint arising out of the same transaction
and should be exclusively triable by Sessions, and it was held that they should be tried separately by the same Court. In that case, while committing
the matter to Sessions, the Magistrate committed the accused who was on bail rejecting his bail, to custody and in such circumstances, the Apex
Court observed that ""if the Committing Magistrate thinks that it is not necessary to commit the accused who may be on bail to custody, he may not
cancel the bail arbitrarily. This is made clear by the words, ""subject to the provisions of the Code"" relating to bail as per Section 209(b) Cr.P.C.
and therefore, if the accused is already on bail, his bail bond should not be arbitrarily cancelled. To this, learned Public Prosecutor submits that a
perusal of the decision mentioned above, shows that it never gave a general direction, general in nature, to the effect that it is not necessary to get
fresh bail or even fresh bond after committal. He further submits that so as to check and ascertain the antecedent etc. if any such practice is
prevailing which is not in consonance with the provisions of law, such practice cannot be allowed to continue. Be that as it may, on committal the
accused concerned has to take a fresh bail or fresh bond, if necessary, so as to avoid the possibility of absconding and to minimise the delay in
trial, in accordance with law.
Considering the argument of the learned counsel for the petitioners, in the light of above judgments as already stated, that if the case ended in
acquittal after six years, the period in which the accused spent in jail deprives the valuable right to life and liberty, in our view, at every stage
sufficient safeguards have been provided in Code and it is not necessary to elaborate. The prime object of the Code is to see that no innocent be
punished. This Court is always to see the prima facie case and to get satisfied its conscience while considering the bail matters viz., the fact of
circumstances leading to the conclusion, whether in the given facts and circumstances of the case, the accused has been implicated falsely with the
crime or not, regarding the glaring defect of procedure established by law and applying the facts to the legal principles in arriving at the conclusion
vis-a-vis the accused and the other accused, violation if any and many other factors like gravity of offence, motive, intention, mens rea, conduct,
any offence is repeated, other antecedents, the effect of the immediate release of the accused to the society at large, etc., ofcourse, without going
into the merits and without appreciating the evidence in detail at that stage, in granting or rejecting the bail. It is also to be seen that if the bail is
granted automatically as a matter of course, the same cannot be cancelled unless there is violation of any condition. But, no hard and fast rule can
be framed to suspend the sentence imposed, instantly. If some yardstick is fixed, as suggested, in cases though conviction is above three years and
less than ten years, it will amount to, in our humble opinion, interfering with the judicial discretion of the Hon''ble Judge concerned. In other words,
it will amount to directing them to pass orders mechanically, which is not certainly, the object sought to be achieved. So in our humble opinion, it
will be unwise to make an attempt to lay down to make any particular rule which would bind the High Court having regard to the facts that the
Legislation itself left the judicial discretion to the Court concerned. As already stated, the discretion is to be exercised judiciously and not merely on
the whims, sentiments and vogueness with arbitrariness, depending upon the facts of each of the case.
This Court also cannot lose sight of the fact that each of the cases, where conviction had been passed, cannot ultimately turn into acquittal. So,
no general order with uniformity on that basis, can be granted as asked for.
The other aspect that if sentence is suspended and bail is granted in a routine manner in the matter pending appeal for two years, there will be a
possibility of the appeal being decided with an inordinate delay, at the instance of the accused, cannot also be ignored.
Once bail is rejected in pending appeal without subsequent material change and in the fact situation, generally, second bail is not entertainable.
Even if the accused remain in jail for sufficient time and for substantial period and the appeal could not be decided in a reasonable time, it can be
one of the grounds for making fresh application for bail and the learned Judge can consider the same and can exercise the discretion accordingly.
However, to safeguard the interest of those accused, so that the possibility of such accused, to remain in jail anymore, as per the argument of the
learned counsel on the basis of apprehension who are to be acquitted, will be minimised, in such circumstances, we deem it proper to give some
directions.
In all, we conclude that as stated, notice is necessary before considering an application for bail. Judicial discretion is to be exercised without
meaning to abuse it. We are of the view that a wise and careful use of their discretion is to be exercised including trial and appellate Court which
the Legislature has conferred by laying down an inflexible rule of general application, to serve the ends of justice, objectively and in consonance
with the principle governing the grant of bail as per overall facts and circumstances of that case as stated earlier. But the accused has no right to get
bail as a matter of course, if appeal is pending for two years. However, if the accused had spent substantial period of imprisonment in bail and if
bail is not granted and if there is no possibility of hearing the appeal in a reasonable time, the accused is free to move an application for early
hearing of the appeal. The Bench concerned, in appropriate cases, after hearing the Public Prosecutor and the learned counsel for the accused who
are in jail for sufficient period, will pass orders, for early hearing and final disposal, as per year of institution on priority basis. The accused is also
free to make a mini paper book containing F.I.R. evidence of eye witnesses, of Doctors and other material documents on his own out of the Court
as the case may be.
The Registry is also directed to get appropriate orders from the Hon''ble the Chief Justice, for constituting more Single Bench/s Division
Bench/s as the case may be, for early disposal of such cases exclusively.
The Reference referred to us is answered in the negative.
The matter may be listed before the Bench concerned, which deals with the bail matters as per Roster.