[Cites 4, Cited by 0]

Rajasthan High Court - Jodhpur

Devilal vs State Of Rajasthan (2026:Rj-Jd:5951) on 2 February, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:5951]

       HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                        JODHPUR
    S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                             No. 58/2026

Satyanarayan @ Sattu S/o Nanu Puri, Aged About 45 Years, R/o
Mandi Nathan, Ps Bigod,dist. Bhilwara. (Presently Lodged At
Dist. Jail Chittorgarh)
                                                                   ----Petitioner
                                    Versus
State Of Rajasthan, Through Pp
                                                                 ----Respondent
                              Connected With
    S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                             No. 46/2026
                                  in
                   S.B. Criminal Appeal No.66/2026
Devilal S/o Khemraj, Aged About 40 Years, R/o Suwaniya, P.s
Begu, District Chittorgarh. (At Present Lodged At District Jail
Chittorgarh)
                                                                   ----Petitioner
                                    Versus
State Of Rajasthan, Through Pp
                                                                 ----Respondent


For Petitioner(s)         :     Mr. Pankaj Awasthi
                                Mr. Bhawani Singh
                                Mr. Mangi Lal Vishnoi
For Respondent(s)         :     Mr. Surendra Bishnoi, PP



                HON'BLE MR. JUSTICE FARJAND ALI

Order

02/02/2026

1 The instant applications for suspension of sentence have

been moved on behalf of the applicants in the matter of judgment

dated 20.12.2025 passed by the learned Special Judge, NDPS

Cases, Begu, District Chittorgarh in Sessions Case No.115/2023

whereby they were convicted and sentenced to suffer maximum

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imprisonment of 5 years' RI along with a fine of Rs.50,000/- (in

default of payment further to undergo 6 months' RI) under

Section 8/15(B) of NDPS Act.

2 It is contended by the learned counsel for the appellants that

the learned trial Judge has not appreciated the correct, legal and

factual aspects of the matter and thus, reached at an erroneous

conclusion of guilt, therefore, the same is required to be

appreciated again by this court being the first appellate Court.

3. Per contra, learned public prosecutor has vehemently

opposed the prayer made by learned counsel for the accused-

applicants for releasing the appellant on application for suspension

of sentence.

4. Heard learned counsel for the parties and perused the

material available on record.

5. There exists a fine yet significant distinction between the

grant of bail under Section 439 of the Code of Criminal Procedure,

1973, and the suspension of sentence under Section 389 Cr.P.C.

While the power exercised under Section 439 CrPC is essentially

discretionary in nature and operates at the pre-conviction stage,

the jurisdiction under Section 389 Cr.P.C, though also

discretionary, is qualitatively different and operates post-

conviction. Under Section 389 CrPC, the appellate court is vested

with a distinct authority; however, the core consideration before

the appellate forum must necessarily be whether the judgment of

conviction and the consequent order of sentence are sustainable in

the eyes of law.

6. It is trite that the presumption of innocence, which enures in

favour of an accused, comes to an end upon conviction.

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Consequently, while considering an application under Section 389

CrPC, the appellate court is required to examine the grounds

raised in the appeal, and for such purpose, the oral and

documentary evidence must be looked into. Where, upon

appreciation of evidence, it appears that the conclusions drawn by

the trial court may be erroneous, and where logical, legal and

sustainable arguments are advanced assailing the findings,

disclosing a strong and arguable case, the appellate court is duty-

bound to consider such contentions.

7. Where the sustainability of the conviction itself becomes

debatable, and where the grounds raised in appeal, if adjudicated

in favour of the appellant, disclose a real and substantial

possibility of success, and where, prima facie, it appears that the

conviction may be reversed and the appellant may be acquitted,

the appellate court ought to suspend the sentence pending

disposal of the appeal.

8. Such discretion deserves to be exercised with greater

circumspection in cases where the appellate forum has sufficient

reason to believe that the appeal is not likely to be taken up for

hearing in the near future. In such circumstances, the court is

required to assess whether the grounds raised are not merely

ornamental but possess real substance and force, for the simple

reason that if the appeal ultimately succeeds, the period of

incarceration already undergone cannot be undone or restituted.

In such a situation, the court should incline towards suspending

the sentence.

9. At the same time, it is well settled that the appellate court is

not required to record any definitive or conclusive finding, as

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doing so would amount to forming a pre-determined opinion on

the merits of the appeal at an initial stage, without affording a full

hearing on the appeal itself. It is sufficient if the court merely

indicates that the grounds raised are prima facie appreciable,

logical and legally tenable, that they are founded upon settled

principles of law, and that there appears to be improper evaluation

or assessment of evidence, or non-consideration / disregard of

relevant statutory provisions.

10. It is also to be borne in mind that in several cases, the

conviction may ultimately be converted to a lesser offence, or the

propriety of the sentence imposed by the trial court, being within

its discretionary domain may also require reconsideration,

particularly whether an adequate and proportionate sentence was

imposed after due hearing on the point of sentence. These

aspects, too, are open to re-examination at the appellate stage.

11. An appeal, in its true sense, is an extension of the trial, for

the reason that additional evidence may be taken, and the entire

body of evidence is subject to re-appreciation on both factual and

legal parameters. At this stage, the appellate court is empowered

to set aside the conviction, modify it, remand the matter, or

maintain the judgment, as the case may be.

12. In the High Court, thousands of criminal appeals have

remained pending for the last 20-30 years, including jail appeals,

where even the likelihood of early hearing does not appear

forthcoming. In such matters, instead of taking an irreversible

risk, the court must proceed on the safer side by placing

paramount importance on human dignity and personal liberty.

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13. In the present case, all the issues raised are vital in nature

and carry sufficient force and substance, such that if they are

adjudicated in favour of the appellant, the possibility of acquittal

cannot be ruled out. The grounds raised are appreciable and

necessitate definitive adjudication, which would require meticulous

examination and re-appreciation of evidence, and there exists a

reasonable possibility that such exercise may ultimately ensure to

the benefit of the appellant.

14. Accordingly, the applications for suspension of sentence filed

under Section 389 Cr.P.C. is allowed and it is ordered that the

sentence passed by learned trial court, the details of which are

provided in the first para of this order, against the appellant-

applicants named above shall remain suspended till final disposal

of the aforesaid appeal and they shall be released on bail provided

each of them executes a personal bond in the sum of Rs.50,000/-

with two sureties of Rs.25,000/- each to the satisfaction of the

learned trial Judge and whenever ordered to do so till the disposal

of the appeal on the conditions indicated below:-

1. That they will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicants change the place of residence, they will give in writing their changed address to the trial Court as well as to the counsel in the High Court.