The Jammu & Kashmir and Ladakh High Court recently comprsing of a bench of Justice Mohan Lal reiterated that as per the provision under Section 389 CrPC, if the convict is punished with imprisonment for a term less than ten years, no notice is required to the Public Prosecutor/State regarding the application filed by the accused for suspension of his sentence and his release on bail. (Ghulam Mustafa & Anr. v. Union Territory of J&K)
Facts of the case
An appeal was filed under Section 374 CrPC against order of sentence appellants/convicts have been found guilty of commission of offences u/s 307, 451, 34 RPC and sentenced to undergo rigorous imprisonment for 10 years and also fine in the sum of Rs.10,000/.
Alongwith the appeal, appellants/convicts have filed applications for suspension of conviction and sentence pending the hearing of appeal, with further prayer for ordering them release on bail primarily on the ground that there is no likelihood of the appeal being heard in the near future.
Contention of the parties
The Counsel for the appellant contended that when the sentence is of life imprisonment, the consideration for suspension of sentence should be of different approach, and when the appellate court finds that due to practical reasons the appeal could not be disposed of expeditiously, the appellate court must bestow special concern in the matter of suspending the sentence so as to make the appeal right, meaningful and effective, but if for any reason the sentence of limited duration cannot be suspended, every endeavor should be made to dispose of the appeal on merits.
He argued that even the sentence of ten years rigorous imprisonment was suspended against the accused persons who were found guilty for commission of offences u/ss 364/120- B/201 RPC. Reliance was placed on M/S. Bhagwan Dass Rama Shanker Vs. Union of India & Ors, 2000 Latest Caselaw 85 SC
On the contrary, Additional Advocate General Amit Gupta argued that there is every likelihood of accused persons are misusing their liberty if granted bail and may jump over the bail having regard to all the circumstances, including the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for a lengthy term of imprisonment as such does not deserve bail at this stage.
Courts observation & Judgment
The Court after analysing Section 389 CrPC enunciated that it clearly states that pending an appeal preferred by a convicted person notice shall only be issued to the Public Prosecutor/State in case the convict is punished for offences punishable with death or imprisonment for life or imprisonment for a term not less than ten (10) years, which clearly connote that if the convict is punished with imprisonment for a term less than 10 years no notice is required to be given to the Public Prosecutor/State in regard to the application filed by the convict/accused for suspension of his sentence and his release on bail.
Referring to M/S. Bhagwan Dass Rama Shanker (supra), the Court noted, "Section 389 Cr.PC does not contain any “statutory restriction” in suspension of sentence and granting of bail to the accused/convict and the prayer should be considered liberally and the Appellate Court may impose restrictions considering the gravity of offence."
The bench referred to the case of Bhagwan Rama Shinde Gosai & Ors v. State of Gujarat, where it was held that Section 389 CrPC does not contain any "statutory restriction" in the suspension of sentence and granting of bail to the accused/convict. It added that the prayer should be considered liberally, and the Appellate Court may impose restrictions considering the gravity of offence.
The court noting that the appellants have been in custody for more than 2.5 years of the total sentence imposed with a kidney-related ailment, and in the absence of any immediate prospect of the main appeal being heard, suspended their sentence.
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