On which grounds appellate court can suspend the sentence of the convict?

Conclusion

110. The discussion, undertaken hereinbefore, may be summarized as follows:--

a. While considering an application for suspension of sentence, the Appellate Court has to record reasons, in writing. The requirement of recording of reasons must be preceded by careful consideration of the relevant aspects of the case at hand including issues of human rights or other relevant aspects as envisaged under Article 21 of the Constitution of India.

b. The mere fact that during the period, when an accused person was on bail during trial, there was no misuse of liberty does not per se warrant suspension of execution of sentence and grant of bail. What really is necessary to be considered by the Court is whether reasons exist, on the merits of the case, to suspend the execution of sentence and, thereafter, grant bail to the appellant.

c. During pendency of an appeal against conviction or sentence or both, temporary or interim or provisional suspension of sentence, on some extremely rare circumstances, is inherent in the jurisdiction of the Appellate Court, under Sec. 389 Cr.P.C., by the doctrine of implied power. Such a recourse must be taken only when pressing circumstances are shown to exist and when the Court is of the opinion that further inquiry would be required before finally disposing of the application for suspension of sentence pending decision on the convict's appeal.

d. It may be equally necessary to mention that circumstances, which show existence of a right within the ambit Article-21 of the Constitution of India, may be considered as valid circumstances, while granting interim suspension pending disposal of an appellant's application seeking suspension of sentence and bail.

e. Notwithstanding the fact that a prisoner's application for suspension of sentence and his consequent release on bail cannot be allowed on merit or has been rejected on merit, the Appellate Court still retains the power to suspend sentence for such period as the Court may consider imperative, particularly, when the Court finds that such suspension of sentence would make the right to life, guaranteed by Article 21, meaningful. Thus, inordinate delay, in disposal of appeal, terminal ailments, marriage of daughter, performing last rites, etc., are circumstances falling in the broader definition of "right to life" and can become valid grounds for suspension of sentence of a prisoner and his release on bail for a temporary period or until disposal of his substantive appeal.

 IN THE HIGH COURT OF PATNA

I.A. Nos. 1746 in Cr. Appeal (DB) No. 1403 of 2010, 

Decided On: 27.01.2014

Chandra Shekhar Bharti Vs. The State of Bihar

Hon'ble Judges/Coram:

I.A. Ansari and V.N. Sinha, JJ.

Citation: MANU/BH/0232/2014

Authored By : I.A. Ansari, V.N. Sinha

I.A. Ansari, J.

1. "Love and compassion are necessities, not luxuries. Without them, humanity cannot survive". Dalai Lama.

These applications, made under sub-section (1) of Section 389 Cr.P.C., seeking suspension of sentences, passed against the appellants-applicants, have raised some questions of great significance, the most important of all the these questions being whether it is permissible, in law, to temporarily suspend sentence of an appellant, pending disposal of his application seeking suspension of his sentence, and, upon such suspension, whether the Court can allow the appellant to go on bail temporarily until the time his application, seeking suspension of sentence, is decided either in his favour or against him. An equally important question is whether an appellant, whose application seeking suspension of sentences stands rejected, can apply for temporary suspension of his sentence, so as to enable him to perform some religious rites or ceremonies or to receive proper medical treatment, then requisite medical treatment is not possible to receive in prison, etc. Yet another question, not less important than the preceding ones, is whether enforcement of human rights or humanitarian considerations, as envisaged by Article 21 of the Constitution of India, can govern the outcome of an application, made by an appellant, seeking suspension of sentence pending decision in appeal or when an application seeking temporary, provisional or interim suspension of sentence is made.

Before we deal with the merit of each of the present applications seeking temporary suspension of sentences passed against the present appellants upon their conviction under various penal provisions, we are required to decide if it is within the powers of an Appellate Court, under Section 389(1) Cr.P.C., to suspend temporarily or provisionally sentence, for a specified period, when application, seeking suspension of sentences, has already been rejected on merit and if so, under what circumstances, exercise of such exceptional power would be permissible. We are also required to decide before dealing with individual merit of the applications seeking suspension of sentences whether, during pendency of an application seeking suspension of sentence, an Appellate Court can, under Section 389(1) Cr.P.C., grant interim suspension of sentence and allow the appellant to go on bail until decision on the application seeking suspension of sentence and if so, when would such interim suspension of sentence be permissible.

2. Suspension conveys postponement or temporarily preventing a state of affairs from continuing. According to Black's Law Dictionary (Seventh Edition), the word "suspend" means, inter alia, to interrupt; post-pone; defer. Black's Law Dictionary (Seventh Edition) describes word "suspension" to mean, inter alia, an act of temporarily delaying, interrupting or terminating something. Attributing the same meaning to the word "suspend" as pointed out above, New Oxford Dictionary of English (1998 Edition) describes suspend as temporarily preventing from continuing or being enforced or given effect or defer or delay an action, event or judgment.

3. Thus, when we speak of suspension of sentence after conviction, the idea is to defer or postpone execution of the sentence. The purpose of postponement of sentence cannot be achieved by detaining the convict in jail; hence, as a natural consequence of postponement of execution, the convict may be enlarged on bail till further orders.

4. In fact, when a sentence is suspended, no fruitful purpose would be served by continuing to detain the convict, whose sentence, upon appeal being preferred against conviction, has been suspended by court. Conversely, if a convict is allowed to go on bail without suspending his sentence, the sentence of imprisonment would continue to run. For instance, if a convict is sentenced to imprisonment, simple or rigorous, for a period of one year and he is allowed to go on bail without suspending his sentence and if he remains on bail for a period of one year, his sentence of imprisonment would be over, though he may not have, in actual terms, served the sentence of imprisonment.

Brief History of Evolution of The law on Suspension of Sentence and Conviction

5. The law, on suspension of sentence, has evolved gradually and out of intense debate. In order to correctly appreciate the process of evolution, it will be appropriate to survey, in brief, the material decisions in this context so that the law, on this aspect, becomes clearer.

6. In the case of Lala Jairam Das vs. Emperor (MANU/PR/0005/1945 : AIR 1945 PC 94), Privy Council had the occasion to sum up the sources of power, as it existed in those days, as regards granting of bail to a convict. The various views, which prevailed at that point of time, may be summarized as under:--

(i) If special leave to appeal has been obtained from His Majesty in Council and the Judicial Committee has said that an application for bail must be dealt with by the High Court, the High Court will have power under Section 498 (Sec. 437 new) of the Code of Criminal Procedure (hereinafter referred to as "Cr.P.C") to release a convicted person on bail pending hearing of his appeal. Thus, suspension of sentence was not the prime concern, the concern was the release of person on bail and, in doing so, the provisions of bail, applicable to persons accused of non-bailable offence, were resorted to;

(ii) The High Court has inherent power to release a convict on bail if special leave to appeal has been obtained from His Majesty in Council meaning thereby that bail of the convict was to be considered only when his appeal was admitted for hearing;

(iii) After disposal of a criminal appeal by High Court, the High Court becomes functus officio and, hence, cannot grant bail to a convicted person unless special leave to appeal had been obtained from His Majesty in Council;

(iv) The High Court's power to grant a convicted person bail, under Section 498 (439 new) Cr.P.C., would revive, when Judicial Committee grants special leave to appeal and permits the High Court to consider bail.

7. The Judicial Committee, having analysed the divergent views prevailing in those days, held, in Lala Jairam Das (supra), that even if the Judicial Committee had granted special leave to appeal against conviction and sentence under the Code of Criminal Procedure, a High Court, by taking resort to its inherent power, could not have granted bail to a convicted person, whose appeal had been dismissed by the High Court.

8. In conclusion, the Privy Council, Lala Jairam Das (supra), held that since provisions had been made in the form of Section 426 (389 new) Cr.P.C., recourse to, inherent power, under Section 561A (482 new) Cr.P.C., would not be permissible irrespective of the fact whether special leave to appeal had or had not been granted.

9. Section 426 Cr.P.C., in those days, provided as follows:--

(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 any appeal by a convicted person to a Court subordinate thereto.

(3) When the appellant is ultimately sentenced to imprisonment, penal servitude or transportation, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

10. According to Privy Council, in Lala Jairam Das (supra), a consideration of Section 426 Cr.P.C. reinforced the view that Section 498 (439 new) Cr.P.C. had no reference to convicted persons and the Code of Criminal Procedure conferred no power, on a High Court, to grant bail, if appeal from conviction and/or sentence stood dismissed by High Court and the fact that the convicted person, whose appeal had been dismissed, had obtained special leave from His Majesty in Council to appeal from his conviction or sentence made no difference in this regard. This observation was the result of the fact that beyond High Court, there was no further Court of appeal in the form of Supreme Court, as we have today, and what was available to a person, whose appeal stood dismissed by High Court, was to seek special leave to appeal and if the special leave was granted, then, there would have been a regular appeal.

11. We may pause here to add that there exists a distinction between an appeal and a leave to apply for appeal. When an appeal is provided and the appeal is preferred, the appeal stands instituted; but when a leave for appeal is applied, then, until the leave is, in such a situation, granted, there is really no appeal. Hence, the disposal of the Special Leave Petition or of any petition for leave to appeal does not subsume the order from which the appeal arose, for, with the rejection of the petition for leave, no appeal survived. Article 136 of the Constitution of India deals with 'special leave to appeal', which may be granted by the Supreme Court. When special leave to appeal is dismissed by the Supreme Court, with or without a speaking order, the order from which the appeal arose does not merge into such an order, for, as already indicated hereinabove, with the dismissal of the special leave petition, no appeal survives and no appeal can be said to have been considered. In fact, when the special leave to appeal is declined, there is no appeal. Hence, question of the merger of the order into the order declining to grant special leave to appeal does not arise at all. One may, in this regard, refer to Punjab State Electricity Board, Patiala vs. Ashok Kumar Sehgal, reported in MANU/PH/0037/1990 : AIR 1990 P & H 117(FB), wherein it has been observed thus, "Article 136(1) of the Constitution provides that notwithstanding anything in Chapter IV, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in the territory of India. If the Supreme Court, in its discretion, refused to grant Special Leave to Appeal, then there is no appeal. The doctrine of merger or fusing the judgment of the lower Court in that of the appellate Court does not apply to such a situation. Thus, in our view, we can proceed with these matters despite the Special Leave Petition in Kuldip Singh's case having been dismissed."

12. The above aspect of the law has been succinctly and authoritatively laid down by the Supreme Court, in Kunhayammed vs. State of Kerala (MANU/SC/0432/2000 : (2000) 6 SCC 395).

13. Coming back to the case of Lala Jairam Das (supra), the Privy Council further held, in Lala Jairam Das (supra), that Section 561A Cr.P.C., which embodies inherent power, confers no new power on the High Court; rather, Section 561A Cr.P.C. merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice. According to the decision in Lala Jairam Das (supra), Section 426 (389 new) Cr.P.C. is, and was intended to contain, a complete and exhaustive statement of the powers of a High Court, in India, to grant bail pending appeal and excludes the existence of any additional inherent power, in a High Court, relating to the subject of bail if the appeal was dismissed by High Court.

14. Later, in the case of Pamapathy vs. State of Mysore (MANU/SC/0090/1966 : AIR 1967 SC 286), the question that arose before the Supreme Court was with respect to cancellation of bail already granted to a person in exercise of powers under Section 426 (389 new) Cr.P.C.

15. Section 426 Cr.P.C. as it existed prior to amendments in the form of Section 389 Cr.P.C., (which we have today), read as follows:--

426(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 any appeal by a convicted person to a Court subordinate thereto.

(2-A) When any person other than a person convicted of a non-bailable offence is sentenced to imprisonment by a Court, and an appeal lies from that sentence, the Court may, if the convicted person satisfies the Court that he intends to present on appeal, order that he be released on bail for a period sufficient in the opinion of the Court to enable him 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.

(2-B) Where a High Court is satisfied that convicted person has been granted special leave to appeal to the Supreme Court against any sentence which the High Court has imposed or maintained, the High Court may, if it so thinks fit, order that pending the appeal the sentence or order appealed against be suspended, and also, if such person is in confinement, that he be released on bait.

(3) When the appellant is ultimately sentenced to imprisonment, or imprisonment for life, the time during which he is so released shall be executed in computing the term for which he is so sentenced.

16. The argument, raised before the Supreme Court, in Pamapathy (supra), was that when the High Court had once made an order suspending sentence and granting bail to an appellant under Section 426 Cr.P.C., the High Court retained no power to cancel bail subsequently and recommit the appellant to jail-custody. It was also argued that there was no express power granted to the appellate court to cancel its order regarding suspension of sentence pending appeal or to rescind the order of release, on bail, of an appellant. It was pointed out that under Section 497(5) Cr.P.C., the Legislature had specifically conferred power on specified courts to cancel bail granted to a person accused of a non-bailable offence. It was further argued that under Section 498(2) Cr.P.C., the Legislature had conferred power on the High Court and the Court of Session to cancel bail granted to an accused person under Section 498(1) Cr.P.C. and order him to be arrested and committed to jail-custody.

17. It was, thus, contented, in Pamapathy (supra), that if the Legislature intended to confer, on the appellate court, under Section 426 Cr.P.C., the power to cancel bail of an appellant and re-commit the appellant to jail custody, it would have been very easy for the Legislature to add an appropriate sub-section to Section 426 and make express provision for such a power and, hence, in the absence thereof, it would not be permissible to take recourse to the inherent power of the High Court as contained in Section 561A clothing the appellate court with power to cancel bail in a case falling under Section 426 Cr.P.C.

18. The Supreme Court, in the light of arguments so made, in Pamapathy (supra), observed that there was obviously a lacuna in the legislation, but the omission of the Legislature to make a specific provision to cancel bail of an appellant, who had been allowed to go on bail pending his appeal, was clearly due to oversight or inadvertence and ought not to be regarded as deliberate. The Supreme Court pointed out, in Pamapathy (supra), that if the contention of the appellants were sound, it would lead to fantastic results, because the subsequent conduct of the appellant, howsoever reprehensible it might be, would not justify revoking the order of bail by the appellate court and ordering the re-arrest of the appellant.

19. The concern, expressed by the Supreme Court, in Pamapathy (supra), on the above aspect of making of specific legislative provisions with regard to cancellation of bail of a convicted person, who had been granted bail pending disposal of his appeal, may be set out, thus: An appellant may commit further acts of violence; he may perpetrate, once again, the very same offences for which he stood convicted; he may even threaten and criminally intimidate prosecution counsel, who may be in charge of the case in the appellate court; he may attempt to abscond to a foreign country in order to escape the outcome of appeal the trial; or he may commit acts of violence in revenge against the police and prosecution witnesses, who have deposed against him in the trial court, but the appellate court will have no power to cancel the suspension of sentence and the order of bail made under Section 426 Cr.P.C. Such a situation could not have been in the contemplation of the Legislature and, therefore, the omission to make an express provision, in that behalf, is manifestly due to oversight or inadvertence. In a situation of this description, the High Court is not helpless and, in a proper case, it may take recourse to the inherent power conferred upon it under Section 561A Cr.P.C.

20. The Supreme Court, in Pamapathy (supra), while making a reference to the inherent power of the High Court, has observed that the inherent power of the High Court, mentioned in Section 561A Cr.P.C., can be exercised for either of the three purposes specifically mentioned in the said Section. The inherent power cannot be invoked in respect of any matter covered by specific provisions of the Code of Criminal Procedure. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code of Criminal Procedure. It is only if the matter, in question, is not covered by any specific provisions of the Code of Criminal Procedure that Section 561A can come into operation. The Supreme Court pointed out, in Pamapathy (supra), that no legislative enactment, dealing with procedure, can provide for all cases that can possibly arise and it is an established principle that the Courts should have inherent powers, apart from the express provision of law, which are necessary to their existence and for the proper discharge of the duties imposed upon them by law. This doctrine finds expression in Section 561A Cr.P.C., which does not confer any new powers on High Court, but merely recognizes and preserves the inherent powers previously possessed by it.

21. The Supreme Court, finally, concluded, in Pamapathy (supra), that in a proper case, the High Court had inherent power, under Section 561-A Cr.P.C., to cancel the order of suspension of sentence and grant bail to an appellant under Section 426 Cr.P.C.

22. The Supreme Court also distinguished, in Pamapathy (supra), the application of law laid down in the case of Lala Jairam Das (supra) and held that the question before the Judicial Committee, in Lala Jairam Das (supra), was whether the Code of Criminal Procedure conferred any power on a High Court, in India, to grant bail to a person, who had been convicted and sentenced to imprisonment and to whom the Judicial Commit tee had granted special leave to appeal against his conviction and/or sentence and it was held by the Judicial Committee, on this limited aspect of law, that the High Courts had no such power under the Criminal Procedure Code and could not grant bail to a person, who had been convicted and sentenced to imprisonment and to whom the Judicial Committee had granted special leave to appeal against his conviction and sentence and the question, whether inherent power of the High Court could be exercised for cancellation of bail, was not the subject-matter of consideration before the Judicial Committee. The ratio decidendi of the decision of the Judicial Committee, in Lala Jairam Das (supra), was, therefore, held to be different.

23. The Supreme Court, in essence, upheld, in Pamapathy (supra), the invoking of inherent power of High Court to cancel bail of a convicted person.

24. The ratio, which can be culled out from the case of Pamapathy (supra), is that if a matter, in question, is not covered by any specific provisions of the Code, then, Section 561-A can come into operation, because no legislative enactment, dealing with procedure, can provide for all cases that can possibly arise and it is an, established principle that the Courts should have inherent powers, apart from the express provision of law, which are necessary to their existence and for proper discharge of the duties imposed upon them by law.

25. It may be noted that in Pamapathy (supra), the issue of cancellation of bail of a convict, by taking recourse to Section 561-A (482) Cr.P.C., arose because the two proviso, which, now, have been added to sub-section (1) of Section 389(1) Cr.P.C., did not exist in those days. However, since the 2nd proviso to sub-section (1) of Section 389 Cr.P.C., now, deals with cancellation of bail, no inherent power, would be required for cancellation of suspension of sentence or bail of a convicted person, whose sentence stands suspended and who had been granted bail.

26. In course of time, thus, Section 389 Cr.P.C. underwent amendment. Section 389 Cr.P.C., as it stands today, seeks to meet the necessary circumstances arising out of an application seeking suspension of sentence or bail. A question, however, arose as to whether conviction of an accused can be stayed by taking recourse to Section 482 Cr.P.C.

27. In Rama Narang vs. Ramesh Narang, reported in MANU/SC/0623/1995 : (1995) 2 SCC 513, a three Judges Bench of the Supreme Court, having considered the question, as to whether an order of conviction can be suspended or not in exercise of powers under Section 389(1), held, speaking through Ahmadi, C.J., as follows:--

19. That takes us to the question whether the scope of Section 389(1) of the Code extends to conferring power on the appellate court to stay the operation of the order of conviction. As stated earlier, if the order of conviction is to result in some disqualification of the type mentioned in Section 267 of the Companies Act, we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to, that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction, although that issue in the instant case recedes to the background because High Courts can exercise inherent jurisdiction under Section 482 of the Code if the power was not to be found in Section 389(1) of the Code. We are, therefore, of the opinion that the Division Bench of the High Court of Bombay was not right in holding that the Delhi High Court could not have exercised jurisdiction under Section 482 of the Code if it was confronted with a situation of there being-no other provision in the Code for staying the operation of the order of conviction. In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone; the disqualification incurred by Section 267 of the Companies Act and given effect to cannot be undone at a subsequent date if the conviction is set aside by the appellate court. But while granting a stay or suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate to protect the interest of the shareholders and the business of the company.

(Emphasis added)

28. From what have been held in Rama Narang (supra), it becomes clear that the Supreme Court was of the view, in Rama Narang (supra), that there was no reason to give a narrow meaning to the expression, 'order appealed against', appearing in Section 389(1) Cr.P.C., and debar thereby the appellate Court from suspending conviction if the facts of a given case so warranted. The Court pointed out, in Rama Narang (supra), that an appeal, under Section 374 Cr.P.C., was essentially against an order of conviction, for, the order of suspension was merely consequential to an order of conviction, though the order of sentence could be independently challenged if the sentence was harsh and disproportionate to the offence of which an accused had stood convicted. The Supreme Court has pointed out, that when an appeal was preferred under Section 374, the appeal was against both, conviction as well as sentence. Since the case of Rama Narang (supra) arose out of an order passed by High Court, which enjoys inherent power under Section 482 Cr.P.C., the Supreme Court held, in Rama Narang (supra), that if such a power of suspension of an order of conviction was not found in Section 389(1) Cr.P.C., such a power could, indeed, be exercised by High Court taking resort to Section 482 Cr.P.C.

29. Moreover, having considered the decisions in State of T.N. vs. A. Jaganathan, reported in MANU/SC/0620/1996 : 1996 Cri.L.J. 3495, K.C. Sareen vs. CBI reported in MANU/SC/0409/2001 : 2001 Cri.L.J. 4234, B.R. Kapur vs. State of T.N. reported in MANU/SC/1659/2001 : AIR 2001 SC 3435 and State of Maharashtra vs. Gajanan reported in MANU/SC/1077/2003 : 2004 Cri.L.J. 919, a three Judges Bench, in Ravikant S. Patil vs. Sarvabhouna, MANU/SC/8600/2006 : (2007) 1 SCC 673 : (2007 (1) PLJR (SC) 85), concluded, at para 12.5, thus:--

12.5. All these decisions, while recognizing the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences.

30. Having analysed the decisions in Rama Narang (supra), Ravikant S. Patil (supra) and all other authorities mentioned hereinbefore, a two Judges Bench, in Navjot Singh Sidhu vs. State of Punjab, MANU/SC/0648/2007 : (2007) 2 SCC 574 : (2007 (1) PLJR (SC) 329), held that the expression 'order appealed against', appearing in sub-section (1) of Section 389 Cr.P.C., encompasses an order of conviction and, hence, Section 389(1) Cr.P.C. empowers an appellate Court to suspend not only execution of sentence, but also, in a given case, the operation of the order of conviction. The fact that even an order of conviction can be suspended by invoking the provisions of Section 389(1) becomes crystal clear from the observations of the Court, in Navjot Singh Sidhu's case (supra), which read thus:--

This sub-section confers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction.

31. Reiterating that an appellate Court can suspend or grant stay of an order of conviction, the Court, in Navjot Singh Sidhu's case (supra), once again, observed and held, at para 6, thus:--

The legal position is, therefore, clear that an appellate court can suspend or grant stay of order of conviction.

32. In the face of the law as clearly discernible from the decision in Navjot Singh Sidhu (supra), there can be no escape from the conclusion that without taking aid of the High Court's inherent power under Section 482 Cr.P.C., every appellate Court, exercising jurisdiction under Section 389(1) Cr.P.C., has the power to suspend not only execution of sentence, but also the operation of the order of conviction.

Jurisdiction under Section 389 Cr.P.C.

33. Broadly speaking, Section 389 Cr.P.C., which relates to suspension of sentence, covers suspension of sentence by the Trial Court, which may have convicted an accused and passed sentence against him, as well as the Appellate Court to which the appeal has been preferred. As we would show, suspension of sentence, pending appeal, is possible by High Court even if the appeal may have been filed in a Court subordinate to the High Court.

Trial Court

34. So far as trial Court is concerned, the jurisdiction to suspend execution of sentence flows from sub-section (3) of Section 389 Cr.P.C., which provides as follows:--

(1) xxx xxx xxx

(2) xxx xxx xxx

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,--

where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

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.

35. It is of utmost importance to note that there is no provision made in sub-section (3) of Section 389 Cr.P.C. empowering Trial Court to suspend sentence. However, since an order granting bail to a convicted person without suspending his sentence would make the sentence continue to run, despite the convicted person being on bail, a legal fiction has been created by Legislature by embodying, in sub-section (3) to Section 389 Cr.P.C., the expression "the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended".

36. For invoking the provisions of suspension as contained in sub-section (3) of Section 389 Cr.P.C., the first requirement is that the person, seeking suspension of sentence, ought to have been on bail. Thus, if the convicted person is an under trial prisoner, trial Court would have no jurisdiction to suspend sentence irrespective of the quantum of sentence.

37. The second requirement for exercise of power of suspension is that the sentence of imprisonment should not exceed three years.

38. The third requirement is that the trial Court must be satisfied that the convict intends to prefer an appeal. There must, therefore, be reasons for the trial court to record its satisfaction that the convicted person intends to present an appeal.

39. If all the three requirements, mentioned above, are satisfied, suspension of sentence, under sub-section (3), is, ordinarily, the rule. If the three conditions, mentioned hereinbefore, are present special reasons must exist for denying suspension. If the trial court decides not to suspend the sentence, which may have been passed, it must assign special reasons meaning thereby that a convict, who, otherwise, satisfies the requirements of sub-section (3) of Section 389 Cr.P.C. must, ordinarily, be released on bail unless there are special circumstances disentitling him from being released on bail even if he intends to prefer an appeal. Such a situation may arise, where the record reveals that the convict, as an accused, had abused bail during trial by means, such as, absconding or intimidating witnesses, etc. Moreover, special reasons would mean reasons pertaining to the case, in question, and not those reasons, which may be general in nature.

40. When a trial court decides to grant bail, the question, which would naturally arise, would be as to what the period of bail shall be. In other words, once the bail has been ordered, the question would be what would be period of limitation of such bail.

41. In the light of what have been discussed above, it becomes evident that the Legislature has empowered a trial court to suspend sentence to release a convicted person on bail so as to enable the convicted person prefer an appeal and obtain necessary order of suspension of his sentence from the Appellate Court as well as his release on bail.

42. In a way, therefore, the release of a convict, on bail, by a trial Court, is, in the nature of interim bail. Consequently, the deemed suspension of his sentence, in such a case, must also be treated as interim deemed suspension. The interim bail is co-terminus with the order, which may be passed, under sub-section (1) of Section 389 Cr.P.C. or till such time the trial Court may have allowed the convict to remain on bail, whichever is earlier. The period of bail, as sub-section (3) of Section 389 Cr.P.C. envisages, has to be sufficient. What would be sufficient period has to be answered on the attending facts. Generally speaking, period of bail, ordered by a trial Court, must be in consonance with the period provided for preferring appeal, because no purpose would be served in allowing extension of period of suspension by a trial Court if the appeal, for which time was allowed, becomes barred by time.

43. It is equally necessary to point out here that in a given case, where all the factors for suspending the sentence are present, yet the trial Court may deny the suspension and commit the convict to custody if the conditions of bail, which the trial Court imposes, are not met by the convict. Thus, if the trial Court imposes a condition of two sureties and only one surety is furnished, the condition of bail, following suspension, having not been complied with, the convict has to be sent to imprisonment unless the conditions of bail are changed or modified.

Appellate Court

44. So far as the power of suspension of sentence of Appellate Court is concerned, it is necessary to clarify at this juncture that the term Appellate Court may either mean a Session Court, High Court or the Supreme Court depending on the quantum of sentence and the Court, which awards the sentence. A reading of the Section 374 Cr.P.C. may be appropriate in this context. Section 374 Cr.P.C. is, therefore, reproduced below:--

Section 374. Appeals from convictions.--Any person, convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction, may appeal to the Supreme Court.

Any person, convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial, may appeal to the High Court.

Save as otherwise provided in sub-section (2), any person,--

convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class or of the second class, or

sentenced under Section 325, or

in respect of whom an order has been made or a sentence has been passed under Section 360 by any Magistrate,

may appeal to the Court of Session.

45. Thus, in all cases, where the conviction is upon trial by a Court of Assistant Sessions Judge or by Magistrate of 1st Class or 2nd Class and a sentence of imprisonment up to seven years is passed, the appeal shall lie to the Court of Session. In all other cases, where a sentence passed is longer than the period of seven years, appeal shall lie to the High Court.

46. However, an Appellate Court's power of suspension of sentence, though extensive, is circumscribed by the two provisos to sub-section (1). For the purpose of clarity, sub-sections (1) and (2) of Section 389 Cr.P.C. are reproduced below:--

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:

Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.

(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 convicted person to a Court subordinate thereto.

(3) 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.

(Emphasis supplied)

47. From a careful reading of sub-sections (1) and (2) of Section 389 Cr.P.C., what becomes evident is that pending decision of an appeal made by a convicted person, the Appellate Court may suspend execution of sentence and also, if the convicted person is in confinement, direct his release on bail or on his own bond. Indispensable requirement before sentence is suspended is that the Court must assign reason, in writing, for suspending execution of sentence.

48. In other words, without recording reasons, in writing, for suspending execution of sentence, the Appellate Court cannot suspend execution of sentence.

49. Coupled with the above, before the Appellate Court releases, on bail or on his own bond, an accused, who, upon conviction, has been sentenced to death or imprisonment for life or imprisonment for a term of not less than ten years, imperative it is, on the part of the Appellate Court, to give an opportunity to the Public Prosecutor to show cause, in writing, against such an order of release, which a convicted person may seek, pending decision of his appeal.

50. The second proviso to sub-section (1) of Section 389 Cr.P.C. empowers the Appellate Court to cancel bail of a convicted person, whose sentence has been suspended and who has been allowed to go on bail if the Public Prosecutor files an application seeking cancellation of bail and the Appellate Court feels satisfied that a case for cancellation of bail has been made out.

51. Before proceeding further, what may also be noted is that sub-section (1) of Section 389 Cr.P.C. empowers the Appellate Court not only to suspend execution of sentence, but also order release of the convicted person on bail or on his own bond. Since an appeal may be against conviction and sentence or against the sentence alone, sub-section (1) of Section 389 Cr.P.C. empowers the Court to suspend not only sentence, but also conviction. Though there was a view that suspension of conviction is not possible under Section 389 Cr.P.C. and that conviction can be suspended, in an appropriate case, by High Court only in exercise of its inherent power, the present position of law, in this regard, as we have already discussed above, is that conviction may be suspended, in an appropriate case, by invoking the Appellate Court's jurisdiction under Section 389 Cr.P.C. and recourse to Section 482 Cr.P.C. is, therefore, not necessary for suspending conviction.

52. Analysing the jurisdiction, vested in the appellate Court, under Section 389 Cr.P.C., the Andhra Pradesh High Court, in State of MP vs. Chintamani (MANU/MP/0206/1988 : 1989 Cri.L.J. 163), has held that once a person has been held guilty of having committed an offence, he cannot claim suspension of sentence pending his appeal and consequent release on bail as a matter of right. By making an order under Section 389 Cr.P.C., the sentence is not set aside, but is merely suspended i.e. kept in abeyance, and the appellant remains a convict for all practical purposes. The indulgence is shown, because the appellate Court feels that the guilt is required to be rejudged and pending such adjudication if the appellant serves out the sentence or a substantial part of it, the suffering may become irreversible in the event of his ultimate acquittal. That is why the suspension of sentence is to be accompanied by reasons to be recorded, in writing, by Appellate Court. Such suspension of sentence is intended to last, ordinarily, until adjudication of appeal on merits. In other words, it is an interim order as opposed to such orders to which finality is attached. In the very nature of the jurisdiction conferred by Section 389(1), Cr.P.C., it is inherent that the order may be recalled at any time provided that there may be reasons for doing so and that too, in a judicial manner. It is well known that the power to create includes the power to destroy and also the power to alter what is created unless the law, vesting the power, is accompanied by a limitation to the contrary either in express words or by necessary implication.

53. The above position of law may be gathered from the observations, made in Chintamani's case (supra), which we reproduce below:--

6. Once a person has been held guilty of having committed an offence, he cannot claim suspension of sentence pending his appeal and consequent release on bail as a matter of right. The power to enlarge on bail after conviction, though discretionary, is not so wide as is under Chap.-XXXIII relating to bails before conviction. By passing an order under Section 389, Cr.P.C., the sentence is not set aside, but is merely suspended i.e. kept in abeyance and the appellant remains a convict for all practical purposes. The indulgence is shown because the appellate Court feels that the guilt is required to be rejudged and pending such adjudication if the appellant has served out the sentence or a substantial part of it, in the event of his ultimate acquittal, the suffering may become irreversible. That is why the suspension of the sentence is to be accompanied by reasons to be recorded by the Court in writing. Such suspension of sentence is intended to last ordinarily until adjudication of appeal on merits. In other words, it is an interim order, temporary in nature as opposed to such orders with which a finality is attached. In the very nature of the jurisdiction conferred by Section 389, Cr.P.C. it is inherent that the order may be recalled at any lime provided that there may be reasons for doing so and in a judicial manner. The power to create includes the power to destroy and also the power to alter what is created unless the law vesting the power is accompanied by a limitation to the contrary either express or necessarily to be implied looking to the purpose and scope of the power conferred.

(Emphasis supplied)

54. In the case of Gomti vs. Thakurdas and Ors., reported in MANU/SC/1957/2007 : (2007)11 SCC 160 : (2007 (3) PLJR (SC) 44), the Supreme Court succinctly drew a distinction between bail and suspension and observed that Section 389 Cr.P.C. deals with suspension of execution of sentence pending appeal and release of the appellant on bail. There is distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 Cr.P.C. is the requirement for the appellate Court to record reasons, in writing, for ordering suspension of execution of the sentence or order appealed against. If a convicted person is in confinement, the Court can direct that he be released on bail or on his own bond pending decision on his appeal. The requirement of recording reasons, in writing, clearly indicates that there has to be careful consideration of the relevant aspects and the order, directing suspension of sentence and grant of bail, should not be passed as a matter of routine. The Appellate Court is duty bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail.

55. The mere fact, that during the trial, the appellant was on bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance, when, upon completion of trial, an accused person is found guilty, convicted accordingly and sentence is passed thereon. In other words, the mere fact that during the period, when an accused person was on bail during trial, there was no misuse of liberty, does not per se warrant suspension of execution of sentence and grant of bail. What really is necessary to be considered by the Court is whether reasons exist to suspend execution of sentence and, thereafter, grant of bail. It is, thus, merit of the conviction, which is examined albeit tentatively and until final hearing and decision on appeal.

56. The relevant observations, made with regard to the above position of law, in the case of Gomti (supra), read as follows:--

7. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. 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. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

8. The appellate Court is duty bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused-respondents were on bail.

9. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial looses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view.

(Emphasis added)

Interim, Temporary or Provisional Suspension of Sentence

57. Interim, temporary, or provisional suspension of sentence is not explicit in Section 389(1) Cr.P.C. However, one cannot lose sight of the fact that an order of suspension can be passed by an Appellate Court, upon hearing the Public Prosecutor, particularly, when the appellant has been convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years. The notice to Public Prosecutor, before passing an order of suspension, is not a mere formality as could be seen from a closer reading of the two proviso to sub-section (1) of Section 389 Cr.P.C. This apart, the show cause, which Public Prosecutor may file, has to be in writing.

58. Thus, when the Public Prosecutor is expected to give his objections, if any, in writing, to the prayer for suspension of sentence, such an objection cannot be a subjective and/or mechanical objection; rather, a show cause has to be objective and shall be based on matters on record.

59. Now, under Section 382 Cr.P.C., every appeal shall be made in the form of a petition, in writing, presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against.

60. Ordinarily, the prayer for suspension is made along with the presentation of appeal. At that point of time, only a copy of the judgment is available on the record of the Appellate Court. Thus, if the Court were to consider the prayer for suspension on bare perusal of the appeal petition, it may not arrive at a just finding.

61. It is equally noteable that even the Public Prosecutor is not expected to submit his show cause, in writing, on the mere reading of the appeal petition, for, such a show cause would only be a mere formality. The Public Prosecutor is, therefore, required to ascertain the correctness and sustainability of the grounds of appeal. This apart, the powers, vested by virtue of provisions of sub-section (1) of Section 389 Cr.P.C., in Appellate Courts, are to be exercised by Appellate Courts after due consideration of a number of factors, which may be relevant.

62. The requirement of recording reasons, in writing, as mandated by Section 389(1) Cr.P.C., clearly indicates that there has to be careful consideration of the relevant aspects by the Appellate Court and the order, directing suspension of sentence and grant of bail, should not be passed as a matter of routine. The Appellate Court is duty bound to objectively assess the matter and to record reasons for the conclusion that the case warrants Suspension of execution of sentence and grant of bail. The mere fact, that during the period, when the accused persons were on bail during trial, there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. So observed the Supreme Court in Gomti (supra).

63. What really is necessary to be considered by the Appellate Court is whether reasons, on merit, exist to suspend execution of sentence and, thereafter, to consider whether the convict shall be released on bail or not. The grant of bail, following suspension, must also conform to the conditions imposable under Section 441 Cr.P.C. Considered in this light, it becomes evident that solvency of surety and exclusion of the possibilities of disobedience to the conditions imposed are all relevant factors, which would determine the outcome of an application seeking suspension, because an order of suspension would be meaningless unless the convict is released from prison. The release from prison would depend on the collateral factor whether the convict is likely to abscond.

64. In view of the factors, laid down in the case of Gomti (supra), which are required to be considered before suspending sentence, it becomes abundantly clear that it may become necessary, in a given case, for the Appellate Court to go through the entire case record and the evidence, which formed the conviction, in question. Even for the Public Prosecutor, the perusal of case record may be necessary to effectively submit his written show cause.

65. It will, thus, be seen that when an appeal is filed along with an application for suspension of sentence and before the case records have been called for, the Appellate Court may not be in a position to pass the order of suspension of sentence; but there may be a situation warranting immediate passing of an order of suspension of sentence.

66. Illustratively, we may state that there may be an occasion before the Appellate Court, when, along with an appeal, a prayer for suspension of sentence is also made on the ground that father of the convict has died and the convict is required to perform the last rites. There may be a circumstance, when the appellant prays for suspension of sentence for 10-15 days in order to perform the marriage ceremony of his daughter or the appellant needs, in a case of life-threatening disease, medical treatment, which cannot be possibly received in prison. There may be umpteen circumstances, which may confront the Court thereby compelling it to keep aside the rigours of law and to take a lenient view of the matter.

67. The question is whether, under the circumstances, as mentioned above, the Court must await the receipt of case records from the trial Court in order to decide the prayer for suspension of sentence and consequent release on bail of the appellant pending disposal of his application seeking suspension of his sentence and his release on bail?

68. It needs to be borne in mind that when discretion is conferred on Court, it is unwise to discover a universal formula of its application, for, facts of each case may differ and thereby frustrate the very purpose of conferring discretion. No two cases are, generally, alike on facts and, therefore, the Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful. Laying down the law that judicial discretion must be given some freedom, the Constitution Bench, speaking through Chandrachud, C.J., in Gurbaksh Singh Sibbia vs. State of Punjab, reported in MANU/SC/0215/1980 : (1982) SCC 565, observed:--

...life throws up unforeseen possibilities and offers new challenges. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges....

69. We would not also, therefore, like to evolve a legal formula of universal application as to when a person, convicted of an offence, can be allowed to go on bail, consequent to suspension of sentence, on the ground of his sickness or some other exigencies; but we must indicate, as our duty is, as to what would be the minimum parameters of the Court's discretion, while considering the question as to whether to allow or not to allow the prayer for interim, temporary or provisional suspension of sentence before any final order, on an appellant's application seeking suspension of his sentence under Section 389(1) Cr.P.C. and his consequent release on bail, is disposed of.

70. In the case of Savitri vs. Govind Singh Rawat, reported in MANU/SC/0104/1985 : 1986 Cri.L.J. 41 (SC), the question, confronting the Supreme Court, was whether a Magistrate, before whom an application is made, under Section 125 Cr.P.C., can make an interim order directing the person, against whom the application is made, to pay reasonable maintenance to the applicant concerned pending disposal of the application.

71. While answering the query, so posed, the Supreme Court held, in Savitri (supra), that in the absence of any express prohibition, it is appropriate to construe the provisions, in Chapter-IX, as conferring an implied power, on the Magistrate, to direct the person, against whom an application is made under Section 125 Cr.P.C., to pay some reasonable sum, by way of interim maintenance, to the applicant pending final disposal of the application.

72. The Supreme Court pointed out, in Savitri (supra), that it is quite common that applications, made under Section 125 Cr.P.C., take several months for disposal. In order, therefore, to enjoy the fruits of the proceedings under Section 125 Cr.P.C., the applicant should remain alive till the date of the final order and this can be achieved only when an order for payment of interim maintenance is passed by court. The Supreme Court also pointed out, in Savitri (supra), that every court must be deemed to possess, by necessary intendment, all such powers as are necessary to make its orders effective, this principle being embodied in the maxim ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest (Where anything is conceded, there is conceded also anything without which the thing itself cannot exist.) Vide Earl Jowitt's Dictionary of English Law 1959 Ed. 1797.

73. Thus, whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done, then, that something else will be supplied by necessary intendment. Such a construction of power would, in the light of the decision in Savitri (supra), advance the object of Section 125 Cr.P.C. inasmuch as a contrary view is likely to result in grave hardship to the applicant, who may have no means to sustain herself until the final order is passed on the application made under Section 125 Cr.P.C.

74. Similarly, in the case of Sakiri Vasu vs. State of UP, reported in MANU/SC/8179/2007 : (2008)2 SCC 409, the Supreme Court, having placed reliance on the case of Savitri (supra), held that although Section 156(3) is very briefly worded, there is an implied power vested in the Magistrate, under Section 156(3) Cr.P.C., to order registration of a criminal offence and/or to direct the Officer-in-Charge of the concerned police station to hold a proper investigation and take all such necessary steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion, observed the Supreme Court, in Sakiri Vasu (supra), that they are implied in the provisions embodied in Section 156(3) Cr.P.C.

75. We may pause, at this stage, to point out that though the Supreme Court's observation, in Sakiri Vasu (supra), to the effect that Section 156(3) empowers the Magistrate to monitor investigation has not been agreed to in its subsequent decisions, the concept of the doctrine of implied power, succinctly described in Sakiri Vasu (supra), has not been deviated from. The relevant observations, made in Sakiri Vasu (supra), are, therefore, quoted below:--

17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.

18. It is well settled that when a power is given to an authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus, where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution.

19. The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Construction (3rd Edn., p, 267):

...If these details could not be inserted by implication, the drafting of legislation would be an interminable process and the legislative intent would likely be defeated by a most insignificant omission.

20. In ascertaining a necessary implication, the court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as if it were specifically written therein.

21. An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Thus in ITO vs. M.K. Mohammad Kunhi this Court held that the Income Tax Appellate Tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Tax Act.

22. Similar examples where this Court has affirmed the doctrine of implied powers are Union of India vs. Paras Laminates (P.) Ltd., RBI vs. Peerless General Finance and Investment Co. Ltd. (AIR at p. 656), CEO & Vice-Chairman, Gujarat Maritime Board vs. Haji Daud Haji Harun Abu, J.K. Synthetics Ltd. vs. CCE, State of Karnataka vs. Vishwabharathi House Building Coop. Society (SCC at p. 432), etc.

23. In Savitri vs. Govind Singh Rawat this Court held that the power conferred on the Magistrate under Section 125 Cr.P.C. to grant maintenance to the wife implies the power to grant interim maintenance during the pendency of the proceeding, otherwise she may starve during this period.

(Emphasis supplied)

76. In the Income Tax Officer, Cannanore vs. M.K. Mohammed Kunhi, (MANU/SC/0087/1968 : AIR 1969 SC 430), the question, raised in the Supreme Court, was whether the Appellate Income Tax Tribunal has the power, under the relevant provisions of the Income Tax Act, 1961, to stay, during pendency of appeal, the recovery of the realization of the penalty imposed by the departmental authorities on an assessee.

77. While answering the question, posed above, the Supreme Court, in M.K. Md. Kunhi (supra), invoked the principle of implied power and held that it is a firmly established rule that an express grant of statutory power carries with it, by necessary implication, the authority to use all reasonable means to make such grant effective (Sutherland Statutory Construction, Third Edition, Articles 5401 and 5402).

78. The Supreme Court, in M.K. Md. Kunhi, (supra), quoted, with approval, the observations made in Domat's Civil Law Cushing's Edition, Vol.-I at page 88, which read as under:--

It is the duty of the Judges to apply the laws, not only to that appears to be regulated by their express dispositions, but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it. It is, therefore, seen that in order to meet certain rare circumstances, Court have adopted the doctrine of implied power, of course, with abundant caution bearing in mind that no prejudice or hardship is caused to adverse party.

79. As a necessary corollary to the discussions held above, it can be safely held that at the time of presentation of appeal petition against conviction or sentence or both, if an Appellate Court is faced with such rare circumstances, wherein-interim, temporary or provisional order of suspension of sentence is called for, the denial of which may cause severe hardship to the appellant, the Appellate Court can, by taking resort to the doctrine of implied power, exercise its jurisdiction, under Section 389(1) Cr.P.C., by suspending the sentence temporarily and allowing the convict to go on bail for a specified period or until a decision is finally taken on the appellant's application, made under Section 389(1) Cr.P.C., seeking suspension of his sentence and consequent release on bail until disposal of his appeal.

80. Such an order of interim suspension of sentence will, thus, be wholly temporary in nature may not necessarily be based on the merits of the case, but on humanitarian considerations too or for enforcement of human rights as envisaged by Article 21 of the Constitution of India. Such a temporary, interim or provisional order of suspension of sentence has to be for a definite time frame depending on the facts of each case. On the expiry of the term for which the sentence is temporarily suspended pending an appellant's application seeking suspension of sentence and bail, the appellant shall have to surrender to the Court, as may have been directed by the Appellate Court, until the appellant's application, seeking suspension of sentence and bail, is finally disposed of. If further extension is prayed for, then, such extension can be allowed only if further emergent circumstances are shown to exist and not otherwise. It is advisable that on the date of expiry of the period of temporary suspension of sentence and bail, the petition for suspension of sentence be taken up for final hearing and necessary orders be passed.

Fundament theme of Article 21 -- Whether an indispenable attribute of Section 389 Cr.P.C.

81. There may be a circumstance, when the prayer for suspension of sentence during pendency of appeal, has either not been preferred or, if preferred, has been rejected on merits and the appellant remains in custody suffering imprisonment. The circumstances, conceived of above, may be a ground for a temporary reprieve from imprisonment on grounds, which cannot be ignored: such as 10-15 days suspension to solemnise marriage of daughter; to perform the last rituals of deceased father, etc.

82. The question would be whether the Appellate Court has the jurisdiction to order temporary release of the prisoner by suspending his sentence. The question pertains to only those circumstances, where the prayer is not made on merits of the case, but on humanitarian issues or for enforcement of human rights. The question, which naturally arises, is: whether Courts, in such cases, can ignore moments of humanitarian distress or enforcement of human rights? Section 389(1) Cr.P.C. requires recording of reasons before suspending sentence. Whether terminal ailment, social obligations, delay in trial and such other humane aspects can be considered valid reasons within the ambit of Section 389(1) for suspension of sentence and release on bail of an appellant for a temporary period is a question, which requires careful and patient consideration.

83. In the case of Sunil Batra vs. Delhi Administration (MANU/SC/0184/1978 : AIR 1980 SC 1579), the Supreme Court, while dealing with the "right to life", observed as follows:--

By the term "life" as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body or amputation of an arm or leg or the putting out of an eye or the destruction of any other organ of the body through which the soul communicates with the outer world.

(Emphasis supplied)

84. Taking a cue from the above observations, made in Sunil Batra (supra), the Supreme Court, in Francis Coralie Mullin vs. Administrator, Union Territory of Delhi and Ors. (MANU/SC/0517/1981 : AIR 1981 SC 746), observed that the question, which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embraces something more. The Supreme Court has pointed out, in Francis Coralie Mullin (supra), that the right to life includes the right to live with human dignity and all that what go alongwith the "right to live with human dignity", such as, adequate nutrition, clothing, shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, observed the Supreme Court, in Francis Coralie Mullin (supra), the magnitude and content of the components of this right would depend upon the extent of the economic development of the country; but it must, in any view of the, matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Held, therefore, the Supreme Court, in Francis Coralie Mullin (supra), that every act, which offends against or impairs human dignity, would constitute deprivation pro tanto of this right to live.

85. The Supreme Court further observes, in the case of Francis Coralie Mullin (supra), that any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be treated to have been prohibited by Article 21 unless it is in accordance with the procedure prescribed by law; but no law, which authorizes, and no procedure, which leads to such torture or cruel, inhuman or degrading treatment, can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21 of the Constitution of India.

86. It would, thus, be seen, noted the Supreme Court, Francis Coralie Mullin (supra), that there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment, which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the international Covenant on Civil and Political Rights. This right to live, which is comprehended within the broad connotation of the right to life, can concededly be abridged according to the procedure established by law and, therefore, when a person is lawfully imprisoned, this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration.

87. The prisoner or detenu, observed the Supreme Court, in Francis Coralie Mullin (supra), cannot obviously move about freely by going outside the prison walls nor can he socialise at his free will with persons outside jail. However, as part of the right to live with human dignity and as a necessary component of the right to life, he would, according to the Supreme Court, in Francis Coralie Mullin (supra), be entitled to have interviews with the members of his family and friends and no prison regulation or procedure, laid down by prison, regulating the right to have interviews with members of the family and friends, can be upheld as constitutionally valid, under Articles 14 and 21, unless it is reasonable, fair and just.

88. The relevant observations, made in Francis Coralie Mullin (supra), are reproduced below:--

8. But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings. Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must, in any view of the matter, include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. Now obviously, any form of torture or cruel, inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, be prohibited by Article 21 unless it is in accordance with procedure prescribed by law, but no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as being violative of Articles 14 and 21. It would thus be seen that there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the Universal Declaration of Human Rights and guaranteed by Article 7 of the International Covenant on Civil and Political Rights. This right to live which is comprehended within the broad connotation of the right to life can concededly be abridged according to procedure established by law and therefore when a person is lawfully imprisoned, this right to live is bound to suffer attenuation to the extent to which it is incapable of enjoyment by reason of incarceration. The prisoner or detenu obviously cannot move about freely by going outside the prison walls nor can he socialise at his free will with persons outside the jail. But, as part of the right to live with human dignity and therefore as a necessary component of the right to life, he would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and friends can be upheld as constitutionally valid under Articles 14 and 21, unless it is reasonable, fair and just.

(Emphasis supplied)

89. One of the striking features of the case of Francis Coralie Mullin (supra), is the recognition given to those rights, which can be exercised by a person even when he has been incarcerated. The Supreme Court, in Francis Coralie Mullin (supra), has, in a way, recognized and enforced Article 10(1) of international Covenant for Civil and Political Rights, which provides as follows:--

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

90. Thus, a person, even during his imprisonment, punitive or preventive, is entitled to a treatment having due regard for the inherent dignity of the human person.

91. In the case of Kashmira Singh vs. State of Punjab (MANU/SC/0099/1977 : AIR 1977 SC 2147), delay, in disposal of an appeal arising out of conviction of an accused, was considered to be a factor warranting release of the prisoner. In Kashmira Singh (supra), the Supreme Court questioned the practice of not releasing a prisoner sentenced to suffer life imprisonment till the disposal of appeal. The Supreme Court, in Kashmira Singh (supra), took the view that the underlying postulate of such a practice was that the appeal of such a person would be disposed of within a measurable distance of time so that if he is, ultimately, found to be innocent, he would not have to remain in jail for an unduly long period, but the rationale of this practice can have no application, where the Court is not in a position to dispose of appeal for five or six years and it would, indeed, be travesty of justice to keep a person, in jail, for a period of five or six years for an offence, which is, ultimately, found not to have been committed by him.

92. Taking a serious note of keeping a convicted person for an unduly long period of time in imprisonment by refusing to suspend his sentence and grant him bail, the Supreme Court, in Kashmira Singh (supra), queried if Court can ever compensate the conviction for his incarceration, which is, eventually, found to be unjustified? Questioned, therefore, the Supreme Court, in Kashmira Singh (supra), thus:--

Would it be just at all for the Court to tell a person, "We have admitted your appeal, because we think you have a prima facie case, but unfortunately, we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?" What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen and it has, in fact, happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it?

93. The Supreme Court, in Kashmira Singh (supra), concluded by holding that it is, therefore, absolutely essential that the practice, which this Court has been following in the past, must be reconsidered and so long as this Court is not in a position to hear appeal of a convicted person within a reasonable period of time, the Court should, ordinarily, unless there are cogent grounds for acting otherwise, release the convict on bail in the cases, wherein special leave has been granted to appeal against conviction and sentence. The relevant observations, made, in this regard, in Kashmira Singh (supra), read thus:--

2........................the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to unjustified? Would it be just at all for the Court to tell a person: "We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?" What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence.

(Emphasis supplied)

94. Coupled with the above, in Anurag Baitha vs. State of Bihar (MANU/BH/0028/1987 : AIR 1987 Pat. 274) : (1987 PLJR 485), delay, in disposal of appeal, was considered to be a clog on the right to life and a Full Bench of this Court, having taken note of the fact that those cases, where the convicts are lying in Jail, yet the appeals, which they have filed in the High Court, are not being taken up for hearing for long period of time, observed that the constitutional right of speedy trial includes, within its sweep, the expeditious hearing of substantive appeals against conviction as well. This Court pointed out, in Anurag Baitha's case (supra), that Article 21 does not stop short at the end of the trial, but continues to extend its protective shield even on the post-conviction stage. According to this Court, in Anurag Baitha's case (supra), equally important is the fact that in the event of later acquittal by the appellate Court, the long incarceration in jail, during the pendency of the appeals, is inherently incompensable in terms of money. In any case, observed this Court, in Anurag Baitha's case (supra), it is legally impossible to secure monetary damages against the State for wrongful or false imprisonment in such cases. Added to this is the fact, this Court further observed in Anurag Baitha's case (supra), that both, for under-trials and for convicts in jails, within the State, the conditions are, admittedly, sub-human. All these are, in the view of this Court as expressed in Anurag Baitha's case (supra), poignantly prominent factors to which one cannot possibly turn the proverbial Nelson's blind eye or to gloss over. Indeed, held this Court, in Anurag Baitha's case (supra), that these considerations become even more relevant, where prolonged detentions are by the law agency's own default either by way of inordinately delayed trials extending over years, or in the appellate forum by the High Court's own inability to dispose of even substantive criminal appeals in capital cases expeditiously and that these are factors, which directly and pristinely enter into consideration; more so, in the context of the constitutional right to speedy trial for the purpose of grant of bail during the pendency of a substantive appeal. Consequently, this Court concluded, in Anurag Baitha (supra), that there is, thus, no option but to hold that the issue of delay, occasioned by the High Court's own inability to hear the substantive appeals expeditiously, enters directly and materially for consideration in the grant of bail to the convicts and this factor is independent or de hors the individual merits, of each case.

95. The relevant observations, made in Anurag Baitha (supra), are reproduced below:--

15. To recapitulate briefly it seems well settled within this jurisdiction that the constitutional right of speedy trial includes within its sweep the expeditious hearing of substantive appeals against conviction as well. Article 21 does not stop short at the end of the trial but continues to extend its protective shield even after the post-conviction stage. Equally it has to be borne in mind that in the event of later acquittal by the appellate Court the long incarceration in jail during the pendency of the appeals is inherently incompensable in terms of money. In any case it is a virtually legal impossibility to secure monetary damages against the State for wrongful or false imprisonment in such cases. Added to this is the fact that both for under-trials, and for convicts, in jails within the State the conditions are admittedly subhuman. All these are poignantly prominent factors to which one cannot possibly turn the proverbial Nelson's blind eye or to gloss over them as sometime either inevitable or insoluble. Indeed these considerations become even more relevant where prolonged detentions are by the law agency's own default either by way of inordinately delayed trials extending over years, or in the appellate forum by the High Court's own inability to dispose of even substantive criminal appeals in capital cases expeditiously. These are factors which directly and pristinely enter into consideration, and more so in the context of now a constitutional right to speedy trial for the purpose of grant of bail during the pendency of a substantive appeal........ There is thus no option but to hold that the issue of delay occasioned by the High Court's own inability to hear the substantive appeals expeditiously enters directly and materially for consideration in the grant of bail to the convicts. This is a factor independent, dehors the individual merits of each case.

(Emphasis is added)

96. One of the landmark features of the case of Anurag Baitha (supra) was the answer to a specific argument made by the State that unless Section 389 Cr.P.C. enables the release of a prisoner, mere delay, in hearing of appeal, cannot be a ground for release of the prisoner. It was further argued that after trial and conviction, there was no right to bail at all, whatever be the delay and even if the delay be to the extent of undergoing the whole of the sentence imposed. It was contended by the State, in Anurag Baitha (supra), that the suspension of sentence was entirely an issue of the merits of the case and the question of delay, while undergoing sentence, was wholly irrelevant to the issue.

97. Responding to the State's above contention, this Court held, in Anurag Baitha's case (supra), that neither principle nor precedent could be cited for any such constricted view; rather, clearly enough, even under Section 389 Cr.P.C., inordinate delay, in the hearing of substantive appeals, because of the Court's own inability to do so, would be an extremely relevant factor for the grant of bail inasmuch as Section 389 Cr.P.C. mentions the necessity of the recording of reasons for suspending sentence and, undoubtedly, it would be a good reason to state that there is no practicable possibility of expeditious hearing of the appeal. This apart, even assuming entirely for the sake of argument (without in the least holding so) that Section 389 Cr.P.C. does not envisage the question of delay, the fact remains that the applicability of Article 21, the right to speedy trial and expeditious hearing of substantive appeals cannot be possibly excluded from this arena.

98. The Full Bench of this Court further held, in Anurag Baitha (supra), that if there is any conflict between the constitutional rights flowing from Article 21 and the provisions of Section 389 Cr.P.C., it is the constitutional right, which would override and the legislative provisions have to give way to the constitutional rights and the legislative provisions and, hence, there is no question of harmonizing a constitutional mandate with the supposed limitation under the Cr.P.C. Inasmuch as the supreme law does not need to be harmonized with the subservient one, it, indeed, calls for pristine enforcement and it is the legislative provisions, which have to be read down or be made bend to the constitutional mandate. The contention of State was, therefore, considered to be a hypertechnical and, consequently, rejected. The relevant observations, made, in this regard, in Anurag Baitha (supra), run as under:--

17. I regret my inability to take such a myopic view of Section 389 of the Code which was sought to be projected on behalf of the respondent-State. I am unable to see how the, issue of inordinate delay in the hearing of the substantive appeals can be hermetically sealed out of consideration even for the purpose of suspension of sentence under Section 389 of the Code. Neither the principle nor precedent could be cited for any such constricted and, if I may say so, a callous interpretation of the language of this provision. To my mind, clearly enough even under Section 389 of the Code inordinate delays in the hearing of the substantive appeals because of the Court's own inability to do so would be an extremely relevant factor for the grant of bail. The said section mentions the recording of reasons for suspending the sentence and undoubtedly it would be a good reason to state that there is no practicable possibility of expeditious hearing of the appeal. This apart, even assuming entirely for the sake of argument (without in the least holding so) that Section 389 of the Code does not envisage the questions of delay, the applicability of Article 21 and the right of speedy trial and expeditious hearing of substantive appeals cannot be possibly excluded from this arena. It was rightly and forcefully advocated on behalf of the petitioner that the constitutional mandate of Article 21 and the enshrined principle of personal liberty and of speedy trial thereunder cannot be overridden by any subservient legislation like Section 389 of the Code, if there is any conflict with the constitutional rights flowing from Article 21 and the provisions of Section 389 of the Code or any other law, then the constitutional right has to override and the legislative provisions have to give way thereto. There is no question of harmonising a constitutional mandate with the supposed limitation under the Code. The supreme law does not need to be harmonised with the subservient one and indeed calls for pristine enforcement and it is the legislative provisions which have to be read down or bent to the constitutional mandate. What appears to me as a hypertechnical stand taken on behalf of the State in this context must necessarily fall and is hereby rejected.

(Emphasis supplied)

99. This Court, therefore, held, in Anurag Baitha's case (supra), that delay, in disposal of appeal, could be considered one of the reasons for suspending, sentence and directing release of the prisoner on bail, particularly, for the reason that prolonged incarceration of the prisoner is incompensable and, thus, unless the Court is in a position to hear and dispose the appeal of a prisoner at an early date, it would be a violation of the prisoner's rights, under Article 21, to detain him in prison. This interpretation can well be said to be an extension of "right to life".

100. The above observations, made in Anurag Baitha (supra), holds to the effect that delay, in hearing of substantive appeal, because of Courts inability to hear the appeal expeditiously, is a relevant factor for grant of bail to a convict pending disposal of his appeal. In fact, the proposition that--delays in disposal of appeal, is a relevant factor calling for suspension of sentence and consequent release on bail--has been well recognized in Kashmira Singh's case (supra). The reason for the view, so taken in Kashmira Singh's case (supra) and followed in Anurag Baitha (supra), is that speedy trial is a constitutional right guaranteed by Article 21; hence, when an appeal is an extension of trial, the guarantee, which Article 21 embodies, must be applied to appeals and, therefore, delay, in the disposal of appeal, due to Court's inability to expeditiously heard appeal, provides a reasonable ground for suspension of sentence of appellant and his release on bail pending disposal of appeal.

101. The fall out of the above discussion is that Article 21 gives to every person, citizen as well as non-citizens, a guarantee to protect his "right to live with dignity". Viewed from this angle, it becomes clear that when a person suffers from such an illness, which threatens his life, the act of not allowing him to go on bail by suspending his sentence of imprisonment would negate his right to live, particularly, if the State is unable to provide the prisoner with the kind of treatment, which the prisoner may need. Thus, it would be the duty of the Appellate Court to suspend sentence of an appellant if the appellant is sick and the State is unable to provide, while keeping him in custody, medical treatment, which the prisoner's sickness necessitates.

102. In N.I.A. vs. R.H. Khan (MANU/GH/0639/2010), Gauhati High Court considered the nature and scope of the first proviso to Section 437(1) in the light of an offence under the Unlawful Activities (Prevention) Act, 1963. Sec. 43D(5) of the Unlawful Activities (Prevention) Act, 1963, has put rigorous restrictions on the rights of an accused to obtain bail apart from the restrictions provided under Section 437 in the sense that the Courts are barred from allowing an accused to go on bail if the allegations, constituting the offence, are found by the Court prima facie true. The question, in R.H. Khan (supra), arose as to whether, in the face of such restrictions on the right of an accused to go on bail, it would be permissible in law to allow an accused, who cannot otherwise obtain bail on merit, to be released on bail on the ground of his sickness. The Court pointed out, in R.H. Khan (supra), that the aim of an investigation or trial is to bring a guilty to book and if the person, who faces the accusation of being guilty, is not, ultimately, brought to trial due to the fact that he does not survive or survives in such a shape and condition that he cannot be tried at all, the whole purpose of having a lively scheme of investigation and trial would stand defeated.

103. The Gauhati High Court, speaking through one of us (I.A. Ansari, J.), therefore, observed, in R.H. Khan (supra), that a careful reading of the scheme of the provisions, contained in Section 437, clearly brings out the fact that the Legislature, having taken away the power of a Court, other than the High Court and the Court of Session, to grant bail in the cases, which are covered by Clauses (i) and (ii) of Section 437(1), has allowed even an accused, who is, otherwise, covered by restrictions contained in Clauses (i) and (ii), to be released on bail on the ground, amongst others, of sickness. This shows that the Legislature wants to ensure that when the restrictions, imposed on the liberty of an accused, are pitted against his right not to be deprived of his life (except as may be provided by law), such restrictions do not drive a person to death or cause such damage to his well being that he suffers irreparably. After all, observed the Court in R.H. Khan (supra), the entire aim of investigation and trial is to bring a guilty to' book and if the person, who faces the accusation of being guilty, is not, ultimately, brought to trial due to the fact that he does not survive or survives in such a shape and condition that he cannot be tried at all, the whole purpose of having a lively scheme of investigation and trial would stand defeated. The relevant observations made in R.H. Khan (supra) reads as under:--

77. Though, in the case at hand, the legality of the proviso to Section 43D(5), imposing limitations on the Special Court's power to release an accused on bail, is not under challenge, this Court has nevertheless a duty cast on it to construe the limitations, so imposed, not so restrictively, in the context of the I proviso to Section 437(1), that the restrictions make the right to life, guaranteed under Article 21, meaningless.

78. A careful reading of the scheme of the provisions contained in Section 437 clearly bring out the fact that the Legislature, having taken away the power of a Court, other than the High Court and the Court of Sessions, to grant bail in the cases, which are covered by Clauses (i) and (ii) of Section 437(1), has allowed even an accused, who is, otherwise, covered by restrictions contained in Clauses (i) and (ii), to be released on bail on the ground, amongst others, of sickness. This shows that the legislature wants to ensure that when the restrictions, imposed on the liberty of an accused, are pitted against his right not to be deprived of his life (except as may be provided by law), such restrictions do not drive a person to death or cause such damage to his well being that he suffers irreparably. After all, the entire aim of investigation and trial is to bring a guilty to book. If the person, who faces the accusation of being guilty, is not, ultimately, brought to trial due to the fact that he does not survive or survives in such a shape and condition that he cannot be tried at all, the whole purpose of having a lively scheme of investigation and trial would stand defeated.

79. There is, therefore, no manner of doubt, in our mind, that notwithstanding the limitations, which have been imposed by the proviso to Section 43D(5), it would still remain open for a Special Court, under the N.I.A. Act, to release an accused on bail, on the ground of sickness, by taking resort to the powers conferred on it by the first proviso to Section 437(1) Code of Criminal Procedure However, while considering release of a person on bail on the ground of sickness, the materials, appearing against him, would be relevant inasmuch as the Court may, in a given case, allow an accused to remain on bail even if his sickness is not of the degree, which would threaten his life provided that the Court is assured of the availability of the accused for further investigation or trial coupled with the reasonable assurance that the accused would, if granted bail, not abuse his liberty.

104. Let us, now, assume that a prayer is made before a High Court that convict be released, because he has to attend his daughter's marriage. The cause, daughter's marriage, is an irrelevant consideration from the perspective of Section 389(1) Cr.P.C.; but is it not a cause, which is wholly alien to the inherent dignity of a person. Apposite it would be, in this regard, to understand the meaning and import of kanyadaan.

105. Kanyadaan is one of the most pious and immensely important rituals in Hindu Culture, which is performed in conformity with Vedic scriptures. Kanyadaan is formed from combination of two words, "Kanya" and "Daan? where Kanya means a virgin and Daan means donation. In Kanyadaan, a father hands over his daughter to the groom (considered as Lord Vishnu at the time of marriage). In this emotional ritual, father places the right hand of the daughter on the right hand of the groom and the mother pours holy water on the palms of bride and the groom. Then, the sacred verses are read. The father of the bride asks the groom to promise to him that he would help his daughter in accomplishing three significant goals of life, namely, "Dharma, Artha and Kama".

106. Thus, when a ceremony is considered to be pious as per customs or has religious values, such ceremony has to be considered an inalienable aspect of human dignity. The right of giving a daughter in marriage, by kanyadaan, is not a fanciful right; rather, it is a part of the Indian value system and ethos. Consequently, a constitutional guarantee. These rights are not peculiar to our Nation; but rights, in similar forms, have been embodied in various articles of the International Covenant for Civil and Political Rights. These rights, thus, have a universal application.

107. Similarly, there may be a circumstance, when the prisoner is found to have been suffering from terminal disease, such as, cancer.

108. We need to bear in mind that Article 21 guarantees that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. Personal liberty of a person, being one of the basic rights, any restriction or fetter, on such liberty, has to be strictly construed. The law, therefore, which deprives a person of his personal liberty, has to be interpreted in such a manner as would make the law fair, just and reasonable.

109. It is, thus, seen that over the years, Courts have been enforcing Article 21 in its letter and spirit in cases of humanitarian distress and in cases, wherein question of enforcement of human rights are involved. If Section 389(1) Cr.P.C., is a procedure established by law, whereby liberty of a person can be curtailed, it also has to answer those issues, which are in direct conflict with the right to life of a person, whose liberty is sought to be curtailed. If, while considering the application for suspension, the prisoner is able to make out a case that his further detention in imprisonment would be violation of his "right to life", as enshrined under Article 21, it can definitely be read as one of the valid reasons, within the ambit of Section 389(1) Cr.P.C., to release the prisoner on bail subject, of course, to such conditions, which may be appropriate, in the given circumstances of a case, to impose.

Conclusion

110. The discussion, undertaken hereinbefore, may be summarized as follows:--

a. While considering an application for suspension of sentence, the Appellate Court has to record reasons, in writing. The requirement of recording of reasons must be preceded by careful consideration of the relevant aspects of the case at hand including issues of human rights or other relevant aspects as envisaged under Article 21 of the Constitution of India.

b. The mere fact that during the period, when an accused person was on bail during trial, there was no misuse of liberty does not per se warrant suspension of execution of sentence and grant of bail. What really is necessary to be considered by the Court is whether reasons exist, on the merits of the case, to suspend the execution of sentence and, thereafter, grant bail to the appellant.

c. During pendency of an appeal against conviction or sentence or both, temporary or interim or provisional suspension of sentence, on some extremely rare circumstances, is inherent in the jurisdiction of the Appellate Court, under Sec. 389 Cr.P.C., by the doctrine of implied power. Such a recourse must be taken only when pressing circumstances are shown to exist and when the Court is of the opinion that further inquiry would be required before finally disposing of the application for suspension of sentence pending decision on the convict's appeal.

d. It may be equally necessary to mention that circumstances, which show existence of a right within the ambit Article-21 of the Constitution of India, may be considered as valid circumstances, while granting interim suspension pending disposal of an appellant's application seeking suspension of sentence and bail.

e. Notwithstanding the fact that a prisoner's application for suspension of sentence and his consequent release on bail cannot be allowed on merit or has been rejected on merit, the Appellate Court still retains the power to suspend sentence for such period as the Court may consider imperative, particularly, when the Court finds that such suspension of sentence would make the right to life, guaranteed by Article 21, meaningful. Thus, inordinate delay, in disposal of appeal, terminal ailments, marriage of daughter, performing last rites, etc., are circumstances falling in the broader definition of "right to life" and can become valid grounds for suspension of sentence of a prisoner and his release on bail for a temporary period or until disposal of his substantive appeal.

111. In terms of the above observations, conclusions and the directions, already passed, I.A. Nos. 1746, 1627, 1603 and 1709 of 2013 shall stand disposed of.

V.N. Sinha, J.

112. In the light of the prayer made in these applications for suspension of sentence, grant of provisional bail for a limited period, during the pendency of these appeals, brother Ansari, J., has formulated three important questions, in paragraph 1 of the order, namely:--

(i) Whether it is permissible to temporarily suspend the sentence of an appellant pending disposal of his application seeking suspension of his sentence for a limited period or until disposal of his application seeking suspension of sentence.

(ii) The other question which has been formulated in the said paragraph is whether an appellant, whose application seeking suspension of sentence has been rejected, can apply for temporary suspension of his sentence to perform religious rites, ceremonies or to receive proper medical treatment otherwise not possible in judicial custody.

(iii) The third question raised in the said paragraph for answer is whether concern for human rights or humanitarian considerations, as envisaged by Article 21 of the Constitution of India, can govern the outcome of an application seeking suspension of sentence pending disposal of appeal or for limited period.

113. Having gone through the erudite opinion of brother Ansari, J., answering the aforesaid three questions, I am in agreement with the opinion expressed in paragraphs. 2 to 112 of the order, but considering the importance of the questions, would like to add a few words of my own.

114. Dominant purpose behind the prayer made by the appellant for suspending his sentence under sub-section (1) of Section 389 Cr.P.C. is to obtain bail during the pendency of the appeal or for a limited period is either to secure freedom during the pendency of appeal or to meet the exigencies of life for discharging social, family responsibilities or to receive proper medical treatment not available in the prison.

115. Order passed under sub-section (1) of Section 389 Cr.P.C. either suspending the sentence or refusing to do so is always subject to further orders, consideration made in the matter during the pendency of the appeal. Further consideration of the suspension of sentence is dependent on the facts of the case, personal exigencies of the appellant enabling the Court to reconsider the matter about suspension of sentence of the appellant. Rejection of earlier request for suspension of sentence does not bar making of subsequent request for suspending sentence, though the earlier order, suspending sentence, will have a bearing on the consideration of the subsequent request for suspension of sentence. Aforesaid being the legal position, appellate Court is always empowered to reconsider the prayer of the appellant to suspend his sentence either during the pendency of the appeal or for limited period to meet the exigency of the situation.

116. While considering the prayer of the appellant for suspending his sentence, the Court has to record reasons in support of its order to suspend the sentence, which is the requirement of the provision of law. The Court has also to record reasons for refusing to suspend the sentence as the hallmark of any order, much less a judicial order, is the assigning of reasons supporting the operative portion of the order. Requirement of giving reasons while refusing to suspend the sentence may not be specifically provided in the provision of law but such requirement is to be read into the provision so as to enable the appellant to know as to why his request for suspending the sentence for either limited period or during the pendency of the appeal has been refused.

117. In this connection, I may mention that appeal is continuation of trial, as appellate Court is vested with power to reappraise, the evidence led in the trial Court on the basis of which conviction of the accused has been recorded and to reach different conclusion other than the one reached by the trial Court to convict the appellant. During pendency of the appeal, the presumption of innocence in favour of the accused is not weakened by the fact that he has been convicted by the trial Court. During investigation and trial, there is presumption that the accused is innocent until proven guilty. Appeal being continuation of trial, presumption about the innocence of the appellant should also continue until dismissal of the appeal. While considering an application, seeking suspension of sentence, the Appellate Court may be required to suspend the sentence passed against the appellant if the appellant happens to be a woman provided that the fact situation of the case so warrants.

 

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