389. Suspension of sentence pending the appeal; release of appellant on bail.
(1) 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.
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.
(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-
(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.
This section comes into use when there is a need to suspend execution of sentences or orders pending appeal and also to get the appellant released on bail. There is no provision for any previous notice being given to the Public Prosecutor before suspension of a sentence or release of the accused on bail. While the appellate Court exercises its power to suspend conviction, the Appellant is obligated to draw Court’s attention to consequences which would follow his conviction. Such power has to be exercised in rare cases only, taking into account the case’s special facts.
It is necessary to record reasons in writing for suspension of execution of sentence pending appeal and release of the appellant on bail. This is to ensure that relevant aspects are carefully considered before passing order and such order is not passed as a matter of routine. Simply because the convicted person has filed an appeal to challenge his conviction, the Court ought not to suspend the operation of conviction. The Court is duty bound to take into account all aspects including the ramification of keeping in abeyance such conviction.
Suspension of sentence pending appeal and release on bail- The onus is on the accused to satisfy the Court that he has is entitled with the ‘right’ to present appeal either under S. 379 of Code or Art. 134 of the Constitution. The powers of the authorities to grant parole are not affected by S.32-A of the N.D.P.S. Act which states that a sentence awarded under N.D.P.S. Act shall not be suspended or commuted or remitted. Parole doesn’t equate to suspension, commutation or remission of sentence, which could be withheld in the garb of S.32A of the N.D.P.S. Act. Suspension of sentence – Short term imprisonment – As per the norm, the rule states that the sentence should be suspended and rejection should take place only as an exception.
The plea that once bail has been granted to a convicted person by the trial court, the Supreme Court cannot insist that he should surrender to the sentence in terms of R. 13A before his appeal can be registered, would not be tenable. The trial Court under Sub-sec. (3) of S. 389, Cr.P.C has the power to release a convicted person on bail for such duration as would give him time enough to present an appeal and obtain orders of the appellate Court under sub-sec (1), namely, release on bail, and it is for such time period only that the sentence of imprisonment shall be considered to be suspended. The Supreme Court Rules, 1966, and the provisions of S. 389, Cr.P.C. are independent provisions and will have to be considered on their respective individual standing.
S.389 (3) is applied where there is a right to appeal. So either a prayer for grant of certificate of Chandigarh High Court to appeal to Supreme Court under Art.136 is made or in terms of Art. 134(A) – No right of appeal is involved. In such cases S.389 (3) has no application and an appeal under S.10 of Special court (Trial of Offences Relating to transactions in Securities) Act, 1992 falls in category of cases where right of appeal is there.
Under S.8(3) the conviction of a Chief Minister for a criminal offence and being sentenced to imprisonment for a period of not less than two years would lead to his disqualification- He cannot be sworn in and cannot continue as Chief Minister. If the execution of sentence is suspended in appeal, that would not remove his disqualification. Appellate Court has the power to suspend whole or part of the sentence, which may include fine as well as jail sentence whereas the trial Court can suspend jail sentence alone. Chandigarh High Court can exercise the power conferred on appellate Court by Section 1968 in case of revision under S. 401.
These provisions can be invoked before the convicting Court only in cases in which the convicted person is sentenced to imprisonment for a term not more than three years and is on bail and secondly if he has been convicted for a bailable offence and he is on bail. Though Sec.389 (1), Cr.P.C. does not mention any conditions yet the appellate Court isn’t prohibited from imposing the same while suspending execution of sentence. Conditions which the appellate Court considers to be reasonable can be imposed by Court while allowing the application for suspension of sentence execution.
The order referred to in Sec. 389(1) must be an order whose execution is possible. The rule making authority cannot transgress the statutory power conferred by the statute. Therefore the rules framed under the Act must be consistent with the Act. The executive cannot use the power of framing the rules and regulations to empower itself with the power which the statue itself does not entitle it to. Therefore once power under S. 432(5), Cr.P.C. was demonstrated to be exercised in the remaining period of conviction after the disposal of appeal, R.23 of A.P. Suspension of Sentence and Parole Rules which permits the executive to grant parole during the pendency of their appeals is in contravention of the statute and therefore clearly void.
Provisions of S.389(3) give the convicting Court the power to release the accused on bail though the convicted person must satisfy such Court that he intends to present an appeal but in case the accused wants to file revision application such provision does not give the court the power to release the accused on bail or suspend his sentence. Where a person was convicted by the Court of first instance and his conviction was confirmed by Session Court and in revision Chandigarh High Court declined to interfere as in such a case Chandigarh High Court is not the Court which convicted him.
The appellant who is filing an application under Sec. 389 of Cr.P.C. to get execution of sentence suspended and grant of bail, shall disclose in the cause of title of application whether the applicant had filed any suspension application before the Apex court, subsequently when the Chandigarh High Court didn’t grant bail along with all the particulars of the application of special leave petition. The appellant shall disclose details regarding the number of applications he has filed in the past, their serial numbers, and date of filing of application, date of decision, which bench heard the matter and names of Judges and the result of previous application in brief.
Once, the Court in exercise of its jurisdiction under Sec. 389 Cr.P.C. has stayed the operation of the order appealed against, i.e., the order of convicting and sentencing the petitioner, the concerned officer /authority is bound by duty to follow the same and till the stay order exists, they cannot consider execution of conviction/punishment of the petitioner.
In cases where a division bench has considered first application for bail, preferred pending appeal u/S.389 (1) of the Code and rejected it and thereafter the second bail application is filed and due to the non-availability of earlier Division Bench, second division Bench considers the application and rejects it, the other subsequent and successive bail application should be put before the said Bench and not before the bench that has been given the roster to deal with such matter.
Though the Courts are empowered to grant relief under Art. 226 of the Constitution of India, yet they cannot direct a disciplinary proceeding to be stayed under S.389, Cr.P.C. or S. 401, Cr.P.C. Suspension of execution of sentence pending appeal – Petition for – Intervener had no right to be heard while deciding petition.