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Rajasthan High Court - Jodhpur

Anil Betgari vs Union Of India (2026:Rj-Jd:935) on 8 January, 2026

Author: Farjand Ali

Bench: Farjand Ali

[2026:RJ-JD:935]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
 S.B. Criminal Misc Suspension Of Sentence Application (Appeal)
                         No. 2216/2025
                                          in
                    S.B. Criminal Appeal No.2658/2025

Anil Betgari S/o Narayan Betgari, Aged About 61 Years, Building
R, Flat No 13, Chetaniya Nagari, Varje Pune, Maharashtra
(Lodged In Central Jail Jodhpur)
                                                                     ----Petitioner
                                      Versus
Union Of India, Through Pp
                                                                   ----Respondent


For Petitioner(s)           :     Mr. Vijay Solanki
                                  Mr. Jugal Kishore Chanda
For Respondent(s)           :     Mr. Surendra Bishnoi, AGA
                                  Mr. PC Solanki, Spl. PP



                   HON'BLE MR. JUSTICE FARJAND ALI

Order

08/01/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment dated

18.11.2025 passed by the learned Special Judge, CBI Court Metro,

Jodhpur in Sessions Case No.13/2016, whereby he was convicted

and sentenced to suffer maximum imprisonment of 4 years' S.I.

along with a fine of Rs.50,000/- under Section 13(2) r/w 13(1)(D)

of Prevention of Corruption Act, 1981 and lesser punishment for

offence under Section 7 of PC Act.

2. It is contended by the learned counsel for the appellant 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

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appreciated again by this court being the first appellate Court. The

appellant was on bail most of the period during trial and did not

misuse the liberty so granted to him; hearing of the appeal is

likely to take long time, therefore, the application for suspension

of sentence may be granted.

3. Per contra, learned public prosecutor has vehemently

opposed the prayer made by learned counsel for the accused-

applicant 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 CrPC.

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 CrPC, 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.

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

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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

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

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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 this 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.

13. For the purpose of satisfaction, this Court went through

original transcript Exhibit P-18 which handwritten document and

purportedly a conversation made between complainant Deepak

Aneja to appellant Anil Betgari and one suspect NN Mohanti. In

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the entire 12 pages and written transcription, there is no single

word uttered to this aspect that any amount was demanded by

the appellant from the decoy. The voice of complainant Deepak

Aneja has been marked as 'C'. The voice of appellant Anil Betgari

has been marked as "A". At some place, the voice marked as "M"

though has uttered some words which may be taken as

incorporated, however, interestingly the accused NN Mohanti has

been acquitted from the charges. It is well neigh settled principal

of law that to prove charge under Section 7 of the Prevention of

Corruption Act, it is always imperative upon the prosecution to

prove the fact beyond reasonable doubt that demand was made

by the accused from the decoy. Here in this case, the very factum

of demand by the appellant from the decoy appear to be fishy. It

is only prima facie known by this Court. The final opinion and

determination of this fact shall be made at the time of hearing of

the appeal which is not going to be heard in near future. Having

regard to the nature of the objections raised, the quantum of

sentence imposed, and the fact that the appeal is not likely to be

taken up for hearing in the near future, this Court finds that the

grounds urged are vital in nature and carry sufficient force and

substance. If adjudicated in favour of the appellant, the possibility

of acquittal or interference with the conviction cannot be ruled

out. The issues raised necessitate detailed re-appreciation of

evidence and definitive adjudication, and there exists a reasonable

likelihood that such exercise may ultimately enure to the benefit

of the appellant.

14. Accordingly, the application for suspension of sentence filed

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

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

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

applicant named above shall remain suspended till final disposal of

the aforesaid appeal and he shall be released on bail provided he

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:-

(i). That he will appear before the trial Court in the month of

January of every year till the appeal is decided.

(ii). That if the applicant changes the place of residence, he

will give in writing his changed address to the trial Court as well as

to the counsel in the High Court.