Analysis of Section 389(1) Cr.P.C.

Suspension of Sentence Pending Appeal: A Critical Analysis of Section 389(1) of the Code of Criminal Procedure, 1973 in India

Introduction

Section 389 of the Code of Criminal Procedure, 1973 (Cr.P.C.) stands as a crucial provision within the Indian criminal justice system, delineating the powers of an appellate court to suspend the execution of a sentence or order appealed against and to release the appellant on bail. Specifically, sub-section (1) of Section 389 empowers the appellate court, for reasons to be recorded in writing, to order such suspension and release. This provision embodies the delicate balance between the presumption of innocence (which diminishes significantly post-conviction), the right to appeal, and the interests of justice, including societal concerns regarding convicted offenders. This article undertakes a comprehensive analysis of Section 389(1) Cr.P.C., drawing heavily upon judicial pronouncements from the Supreme Court of India and various High Courts, to elucidate its scope, underlying principles, procedural requirements, and the considerations that guide judicial discretion in its application.

The Statutory Framework of Section 389(1) Cr.P.C.

Section 389(1) of the Cr.P.C. provides:

"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."

This provision confers discretionary power upon the appellate court. However, this discretion is not unfettered and must be exercised judiciously, based on well-settled legal principles and for reasons explicitly recorded.[11] The recording of reasons is a vital safeguard against arbitrary exercise of power and ensures transparency and accountability.[3]

The Proviso to Section 389(1): Enhanced Safeguards in Cases of Serious Offences

A significant aspect of Section 389(1) is its first proviso, which introduces a mandatory procedural requirement for graver offences. The proviso states:

"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, give opportunity to the Public Prosecutor for showing cause in writing against such release:"

The Supreme Court, in Atul Tripathi v. State Of Uttar Pradesh And Others, emphasized the mandatory nature of this proviso. The Court clarified that for offences punishable with death, life imprisonment, or imprisonment for ten years or more, mere verbal notification to the Public Prosecutor is insufficient. A formal opportunity must be provided to the Public Prosecutor to present objections *in writing* against the release.[5], [6] This ensures that the State's perspective is duly considered before a decision on suspension of sentence and grant of bail is made in serious cases. The Delhi High Court in AADIL @ NAUSERWA v. STATE also reiterated this procedural mandate.[11]

Distinction from Pre-Conviction Bail (Section 439 Cr.P.C.)

It is crucial to distinguish the considerations under Section 389 Cr.P.C. (post-conviction bail) from those under Section 439 Cr.P.C. (pre-conviction bail). The Supreme Court in Atul Tripathi[5], [6] and the Delhi High Court in AADIL @ NAUSERWA[11] have highlighted this distinction. During the pre-conviction stage, the accused benefits from the presumption of innocence. However, once convicted, this presumption is significantly weakened, as a competent court has found the accused guilty.[11] Consequently, the standards for granting suspension of sentence and bail post-conviction are generally more stringent. As observed in Omprakash Sahni v. Jai Shankar Chaudhary, the considerations for bail pre-conviction and post-conviction differ significantly.[2]

Judicial Interpretation and Guiding Principles for Exercise of Discretion

The appellate courts, while exercising powers under Section 389(1) Cr.P.C., are guided by several principles established through judicial precedents.

The Imperative of Recording Reasons

The statutory mandate to record reasons in writing is a cornerstone of the exercise of power under Section 389(1). The Supreme Court in Preet Pal Singh v. State Of Uttar Pradesh And Another strongly emphasized the necessity for appellate courts to provide clear and cogent reasons when granting suspension of sentence, particularly in grave offences like dowry death.[3] This ensures that the discretion is exercised judiciously and not arbitrarily. The Kerala High Court in Rajan v. State also noted this requirement.[12] The absence of well-articulated justification can render a bail order untenable.[3]

Key Considerations for Granting Suspension of Sentence

Several factors influence the appellate court's decision:

  • Gravity of the Offence: The nature and seriousness of the offence for which the appellant has been convicted play a significant role. For grave offences, courts adopt a stricter approach.[2], [3]
  • Likelihood of Undue Delay in Appeal Disposal: Prolonged incarceration pending appeal, especially when there is a fair chance of acquittal or if the appeal is unlikely to be heard expeditiously, can be a ground for suspension.[2] (citing Rajesh Ranjan Yadav v. CBI), [11]
  • Existence of Cogent Grounds or Patent Infirmity: While a detailed re-examination of evidence as done during trial is not typically undertaken at this stage, the court may consider if there are patent infirmities in the order of conviction or other compelling reasons that prima facie cast doubt on the conviction.[11] However, as cautioned in Omprakash Sahni, the appellate court should not delve too deeply into the merits as if conducting a mini-trial.[2]
  • Balance between Individual Liberty and Societal Interest: The court must balance the convicted person's interest in liberty against the societal interest in ensuring that those found guilty of serious crimes serve their sentences, particularly if there is a risk of abscondence or reoffending. This balance was noted in the context of bail considerations in Sidhartha Vashisht Alias Manu Sharma v. State (Nct Of Delhi), a principle relevant to post-conviction suspension as well.[1], [2]
  • Previous Conduct: The fact that the accused was on bail during trial and did not misuse liberty can be a relevant factor, though not determinative.[11], [14] (Joseph v. State Of Kerala)
  • Humanitarian Grounds: In exceptional circumstances, such as severe illness of the appellant or a close family member requiring the appellant's presence, courts have granted temporary suspension or interim bail. The Telangana High Court in Goliapudi Srinivas Reddy v. State Of Telangana granted interim bail on the ground of the appellant's father's terminal illness.[19] The Andhra Pradesh High Court in P.BHUSHAN v. THE STATE OF A.P. considered the age and medical record of the petitioner.[17]

The Supreme Court in Omprakash Sahni reiterated that in cases involving grave offences like murder, the standards for granting suspension are stringent, and factors extraneous to the legal provisions, such as political rivalry, should not influence the decision.[2] Similarly, in Preet Pal Singh, concerning a dowry death case, the Court underscored that bail in such serious cases should be granted only with substantial and well-articulated justification.[3]

Suspension of Sentence versus Suspension of Conviction

Section 389(1) primarily deals with the suspension of the execution of the sentence. However, the Supreme Court in Rama Narang v. Ramesh Narang, as cited by the Delhi High Court in VIRAJ EXPORTS PRIVATE LIMITED & ANR. v. THE CHIEF COMMISSIONER OF INCOME (TDS), DELHI & ANR., observed that the appellate court also has the power to suspend the conviction itself.[20] This power to suspend conviction is to be exercised only in exceptional circumstances, for instance, where the conviction might lead to an irreversible disqualification or adverse civil consequences, and the court must be apprised of the specific purpose for seeking such suspension and record its reasons in writing.[20]

Imposition of Conditions and Suspension of Sentence of Fine

When an appellate court orders the suspension of sentence and release on bail, it can impose conditions to ensure the appellant's appearance during the appeal and to safeguard other interests of justice.[14]

Regarding the suspension of a sentence of fine, the Supreme Court in CENTRAL BUREAU OF INVESTIGATION v. ASHOK SIRPAL clarified that the appellate court can impose conditions.[10] Whether the suspension of fine should be conditional or unconditional depends on the facts of each case and the nature of the offence. For example, in cases under Section 138 of the Negotiable Instruments Act, 1881, a condition of depositing the fine amount or part thereof might be appropriate. However, the Court cautioned that any condition of deposit should not be so onerous as to be impossible for the appellant to comply with, as this could effectively defeat the right of appeal and potentially violate Article 21 of the Constitution.[10]

The Karnataka High Court in SRI. G K CHANDRASHEKAR v. STATE OF KARNATAKA (2021 and 2022 judgments) noted that the appellate court has the power to impose conditions while suspending the sentence.[15], [16] It also clarified that the sentence should be "suspended" and not merely "stayed," and modified orders to include release on bail upon execution of bonds and deposit of a portion of the fine amount.[15], [16]

Procedural Aspects and Scope of Application

Section 389(4) Cr.P.C. provides that when an appellant is ultimately sentenced to imprisonment, the time during which they were released on bail under Section 389(1) or (3) shall be excluded in computing the term of their sentence. This was noted by the Kerala High Court in Rajan v. State[12] and the Orissa High Court in Benzamin Khiro Alias Kiro v. State Of Orissa And Another.[13] This implies that the power to suspend sentence extends to cases of life imprisonment.[12]

The application of Section 389(1) has also been considered in appeals arising from orders under special statutes that incorporate or are tried under Cr.P.C. procedures. For instance, in SRI. DEEPAK SHENOY @ ARUN v. SMT. VARSHA BALIGA @ APARNA SHENOY, an application under Section 389(1) Cr.P.C. was filed in an appeal before the Sessions Court against an interim maintenance order passed in proceedings under the Protection of Women from Domestic Violence Act, 2005, though it was rejected on merits by the appellate court.[18]

Judicial scrutiny also extends to ensuring that the legislative intent behind Section 389 is not diluted. In Laxminarayan Vishwanath Arya v. State Of Maharashtra & Ors., the Bombay High Court indicated a concern that certain observations might "introduce into the section some thing what has not been intended or provided by the legislation".[7] This underscores the importance of adhering to the statutory language and established interpretations.

Conclusion

Section 389(1) of the Cr.P.C. is a vital provision that empowers appellate courts to suspend sentences and grant bail pending appeal, thereby upholding the appellant's right to liberty while the appeal is adjudicated. The exercise of this power is discretionary but circumscribed by the mandatory requirement of recording reasons and, in cases of serious offences, affording the Public Prosecutor an opportunity to show cause in writing against release. Judicial precedents have firmly established that this discretion must be exercised judiciously, considering factors such as the gravity of the offence, the likelihood of delay in appeal disposal, the existence of prima facie infirmities in the conviction, and the balance between individual liberty and societal interests. The distinction between pre-conviction and post-conviction bail, the stringent approach in serious crimes, and the careful imposition of conditions, including those related to fines, are critical facets of its application. Ultimately, Section 389(1) serves as an instrument for ensuring that justice is not only done but is also seen to be done, by preventing undue hardship to appellants while their appeals are pending, without compromising the integrity of the criminal justice process.

References