[Cites 7, Cited by 0]

Rajasthan High Court - Jodhpur

Smt. Poonam vs Union Of India on 20 January, 2026

Author: Farjand Ali

Bench: Farjand Ali

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
     S.B. Criminal Misc. Suspension of Sentence Application
                               No118/2026

                                       in

              S.B. Criminal Appeal (Sb) No. 128/2026

Smt. Poonam W/o Shri Pushpendra Kumar, Aged About 38 Years,
Resident Of House No. 73 Gali No 05 Ganpati Nagar Near Anand
Vihar Gatye Sri Ganganagar At Present Lodged In Central Jail
Jodhpur
                                                                    ----Appellant
                                   Versus
Union Of India, Through Ncb
                                                                  ----Respondent


For Appellant(s)         :     Mr. R.S. Choudhary
For Respondent(s)        :     Ms. Muskan Moondra, on behalf of Mr.
                               P.C. Solanki, for CBI



              HON'BLE MR. JUSTICE FARJAND ALI

Order

20/01/2026

1. The instant application for suspension of sentence has been

moved on behalf of the applicant in the matter of judgment

dated 16.01.2026 passed by the learned Special Judge, CBI

Cases, Jodhpur Metro, Jodhpur in Sessions Case

No.11/2019, whereby he was convicted for the offences

under Sections 120-B read with Sections 409, 467 and 471

IPC and Sections 13(2) read with Section 13(1)(D) of the

Prevention of Corruption of Act, 1988 and sentenced to

suffer maximum imprisonment of 4 years' S.I. along with

fine and default sentences.

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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 appreciated again by this court being the first appellate

Court. The appellant was on bail 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 counsel for the respondent 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.

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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 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

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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 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.

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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. In the present case, upon consideration of the material on

record, this Court finds that a prima facie arguable case is

made out for suspension of sentence. The prosecution

evidence itself discloses material inconsistencies regarding

the timing and genuineness of signatures on the withdrawal

documents, with admissions that signatures were obtained

months later, rendering the prosecution version debatable.

The evidence further shows that the appellant acted in

accordance with the prescribed procedure, relying upon

witness verification of thumb impressions, which remains

undisputed, and had no personal knowledge of the account

holder or means to know about the alleged death, having

acted on official records supplied by the department. There

are also contradictions regarding the date of death of the

account holder, going to the root of the prosecution case. No

evidence of forgery, conspiracy, demand or personal gain is

attributable to the appellant, and the prosecution witnesses

themselves have indicated that the appellant performed her

duties in good faith. Considering the sentence of four years,

the pendency of the appeal, and the serious and debatable

issues arising from the prosecution evidence, this Court is

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satisfied that a fit case for suspension of sentence is made

out. 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 application 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-applicant named above shall remain suspended till

final disposal of the aforesaid appeal and she shall be

released on bail provided she 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 she will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicant changes the place of residence, she will give in writing her changed address to the trial Court as well as to the counsel in the High Court.

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3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court.

15. The learned trial Court shall keep the record of attendance of

the accused-applicant in a separate file. Such file be

registered as Criminal Misc. Case related to original case in

which the accused-applicant was tried and convicted. A copy

of this order shall also be placed in that file for ready

reference. Criminal Misc. file shall not be taken into account

for statistical purpose relating to pendency and disposal of

cases in the trial court. In case the said accused applicant

does not appear before the trial court, the learned trial