S.389 CrPC | Application For Suspension Of Sentence Should Be Considered Liberally If Punishment Is Less Than 10 Yrs: J&K&L High Court Reiterates

The Jammu and Kashmir and Ladakh High Court has recently reiterated that as per the provision under Section 389 CrPC, if the convict is punished with imprisonment for a term less than ten years, no notice is required to the Public Prosecutor/State regarding the application filed by the accused for suspension of his sentence and his release on bail.

Justice Mohan Lal referred to the case of Bhagwan Rama Shinde Gosai & Ors v. State of Gujarat, where it was held that Section 389 CrPC does not contain any "statutory restriction" in the suspension of sentence and granting of bail to the accused/convict. It added that the prayer should be considered liberally, and the Appellate Court may impose restrictions considering the gravity of offence.

The Court was hearing a criminal appeal under Section 374 of CrPC, directed against the judgment of conviction and order of sentence where the appellants were found guilty of office under Section 307, 451, 34 of the Ranbir Penal Code and sentenced to go for rigorous imprisonment for ten years with a fine of Rs. 10,000/-.

The said judgment was challenged on the ground that it resulted from misappreciation of facts and misapplication of the law by the trial court. Along with the appeal, the appellants filed an application for suspension of conviction and sentence pending the hearing of the appeal, with a request to be released on bail. To put forth the argument, Supreme Court directions were relied upon where it has been held that when a convicted person is sentenced to a fixed period of sentence, on the filing of an appeal, suspension of a sentence should be considered liberally unless there are exceptional circumstances.

Senior Advocates Sunil Sethi and P.N. Raina, appearing for the appellant, argued that when the sentence is of life imprisonment, the consideration for suspension of the sentence should be of a different approach. When the appellate court finds that due to practical reasons, the appeal could not be disposed of expeditiously, the appellate court must bestow special concern in suspending the sentence to make the appeal right, meaningful and effective. Still, if the sentence of limited duration cannot be suspended, every endeavor should be made to dispose of the appeal on merits.

On the contrary, Additional Advocate General Amit Gupta argued that there is every likelihood of accused persons are misusing their liberty if granted bail and may jump over the bail having regard to all the circumstances, including the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment as such does not deserve bail at this stage.

The Court perused Section 389 of the Code, which deals with the provision of suspension of sentence pending the appeal. It noted that on a cursory glance of the provision, it could be seen that, pending an appeal preferred by a convicted person, notice shall only be issued to the Public Prosecutor/State in case the convict is punished for offences punishable with death or imprisonment for life or imprisonment for a term not less than ten years.

It also referred to the case of Mahesh Pande v. State of Madhya Pradesh, where it was held that the victims of heinous crimes cannot be denied the right to address their grievances before a court of law.

Noting that the appellants have been in custody for more than 2.5 years of the total sentence imposed with a kidney-related ailment, and in the absence of any immediate prospect of the main appeal being heard, the Court suspended their sentence.

Case Title: Ghulam Mustafa & Anr. v. Union Territory of J&K

Citation: 2022 LiveLaw (JK) 32

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