This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. This article explains the essentials of Section 389 of the Code of Criminal Procedure, 1973. It also provides relevant case laws and other sections related to it. 

It has been published by Rachit Garg.

Introduction 

Do you know what an accused does after he is found guilty and punished by a lower court?

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The answer is that the defence lawyer files an appeal with a higher court. But have you wondered what happens to the offender who has been punished? Does he go to jail or remain out in public? And if he is in jail, does his sentence continue or is it suspended for the time being until the decision is announced in the particular appeal made by his defence lawyer? 

Wait. You need not panic or worry about finding the answers to these questions. At the end of this article, you will be able to find an answer to all these questions. 

There are five types of punishments under Section 53 of the Indian Penal Code, 1860, which can be imposed on any offender. A sentence is one of them and includes imprisonment, which may be simple or rigorous. Whenever a criminal is punished, he has to serve the years of his sentence in jail. In case he is not satisfied with the decision of the court he has the right to appeal to higher courts. But while the appeal is pending in the appellate court, his sentence may be suspended according to Section 389 under Chapter XXIX of the Code of Criminal Procedure, 1973. This article further explains the applicability of this section and provides different case laws. 

Suspension of sentence 

Suspension means to stop somebody from continuing what he/she is already doing or to remove them from their post temporarily.  When the sentence of a criminal is temporarily suspended and he is released from jail even though his imprisonment period is not over yet, it is called suspension of sentence. Section 389 of CrPC provides that when a criminal undergoing a sentence files an appeal in the appellate court, his sentence may be suspended on reasonable justifications and causes. But before the suspension, such appellate courts have to record the reasons in writing, and if the offender is kept in jail, he might be released on bail or on the basis of his own bond. 

However, if the offender is punished with life imprisonment, death, or imprisonment that is not less than 10 years, the public prosecutor will be given an opportunity to produce reasons and causes for not releasing the offender while the appeal is pending in the appellate court. He may also file an application for the cancellation of bail in cases where the crime committed was grave and serious in nature. 

The section gives the trial court the power to release the offender on bail if, by application, he satisfies the court that he is willing to file an appeal in the higher court. The court has to release him unless there are special reasons for not doing so. The sentence of such a person will be suspended till the time any order is obtained by the appellate court in this regard. This period of suspension will be excluded from his actual sentence period. 

Applicability of Section 389 CrPC

Section 389 CrPC can be applied only under the following conditions:

  • The power given under the section can only be applied when the accused is convicted by a court. 
  • The power given under sub-section (3) can be exercised only by a convicting court or trial court, and the term of imprisonment in cases where a trial court has to exercise this power must not exceed 3 years. 
  • There must be an appeal or the intention to appeal to the higher court. 
  • The Section also requires that the convicted person have the right to appeal, and only then can his sentence be suspended and he be released on bail. 

These conditions were also mentioned in the case of Mayuram Subramaniam Srinivasan v. CBI (2006). 

Features of Section 389 CrPC

Section 389 CrPC has the following features:

  • The Section does not confer the right to bail on the convicted person, but he may be eligible to be released on bail if there is no objection by the public prosecutor and the court is satisfied that there will be no threat if he is released. 
  • The trial court has the power to refuse the release and suspension if there are special reasons for doing so. 
  • The object of this section is that when a convicted person is not satisfied with the decision of the trial court, he may appeal to the higher court. 
  • The Section does not provide any maximum limit to which the person is released on bail. But only provides that he be released till the time an order is obtained from the higher court in this regard. 
  • The suspension of the sentence given by the trial court in sub-section (3) of the Section is considered a ‘deemed suspension’.
  • When an offender or convicted person is released on bail, it also means that his sentence is suspended for that time. 

Meaning of convicted persons

The words ‘convicted persons’ include any person who is punished for any offence and is kept in prisons. When a Special Leave to Appeal is filed in the Supreme Court against the acquittal by Sessions Court, the Highest Court in such a situation is given the power to release the person on bail. However, words like ‘may’ used in the section provide that it is not mandatory to release a person on bail. 

It was held in the case of Anurag Baitha v. State of Bihar, 1987, that if the High Court is not able to hear the appeal within a reasonable time limit due to any reason, it must release the accused on bail if the appeal is a substantial appeal and the charges are still pending.   

Grant of bail during appeal 

This is given under sub-section (3) of the Section and is contrary to what is given under sub-section (1). The two subsections are different from each other. sub-section (3) makes it mandatory for the court to grant bail to the convicted person who is willing to file an appeal and the court is satisfied with his application, keeping in view all the conditions given therein.

However, this applies only in cases where the convicted person has the right to appeal. For example, Article 136 of the Constitution does not confer any right to appeal as a matter of right. It gives discretion to the Supreme Court to grant special leave to appeal in any matter and so a convicted person cannot be granted bail when such an appeal is taken by the Supreme Court itself under this Article (B. Subbaiah v. State of Karnataka, 1992). The court, in another case, held that in cases where a serious crime like murder is committed, relevant principles must be considered while granting bail to the accused (Vijay Kumar v. Narendra, 2002). 

Other powers of the appellate court 

Section 386 of the Code gives various powers to the appellate court. Whenever any party to a case is dissatisfied with the decision or judgement of the court, they have a right to appeal to a higher court. This higher court, where an appeal is made, is called the appellate court and has the following powers:

  • It may issue an order of acquittal, reverse the order, and direct an inquiry into the case. 
  • It may also order to retry a case and pass a sentence. 
  • If the appeal is made after conviction, it may
    • Reverse the sentence, acquit or discharge the accused, or order a competent subordinate court to retry him, 
    • Alter the findings of lower courts, 
    • Change the nature or extent of a sentence. 
  • If an appeal is made for enhancement of sentence or punishment, it may reverse the finding, change the nature or extent of the sentence, or change the findings. 
  • In case an appeal is made against any other order, it may change or reverse such an order. 
  • It can also make amendments to the orders or pass consequential or incidental orders.

Case laws

Navjot Singh Sidhu v. State of Punjab (2007)

Facts of the case 

In this case, the appellant was a Member of Parliament (MP) and was convicted for an offence that he committed before becoming an MP. As soon as he was convicted, he resigned from his position, did not take advantage of his office or position, and was ready to face the consequences. The evidence in the case was in his favour and his act of resigning from the position of MP was considered to be a moral act. 

Issues in the case 

One of the issues was whether his conviction would be suspended during the appeal.

Judgement in the case 

The court in this case suspended his conviction during his appeal, considering the irreparable injury to him that would have taken place if his conviction had not been suspended. The court also observed that it is the obligation of the appellant to draw the attention of the court to the consequences that he may face if his conviction is not suspended. It was held that such a power of suspension must be exercised in rare cases, considering the facts of the case. It is not mandatory to order a suspension of conviction in every case of appeal. 

Ashish Widhwani v. State (NCT of Delhi) (2022)

Facts of the case 

In this case, the appellant was convicted under Section 376 of the Indian Penal Code, 1860, and sentenced to 10 years of rigorous imprisonment. In an appeal, the appellant submitted that the trial court failed to consider the evidence regarding the social media blogs of the prosecutrix, where she mentioned that she does not believe in the institution of marriage and that she was also aware that the appellant was married and had two children, thus making the alleged story of the promise of marriage fake and false.

Issues in the case

Whether the allegations made against the appellant were false and should he be released on bail during the appeal?

Judgement of the case

The appellate court, after taking into consideration the appellant’s submissions, held that the sexual intercourse between them was voluntary and that there was a need to deeply scrutinise the facts and evidence of the case. All the evidence must be reassessed and the execution of the sentence must be reconsidered at this stage. The court also ordered the suspension of the appellant’s sentence on a personal bond of Rs. 25,000/- with two sureties and certain conditions till the time appeal is disposed of.   

Conclusion 

Section 389 gives the power to the appellate court to grant interim bail to the convicted person until the court passes an order in this regard. Sub-section (3) of the Section gives a restrictive power to the trial court convicting the accused to suspend his sentence and grant him bail. This is done to give him an opportunity to appeal to a higher court and present his case with the help of his defence lawyer. It can also be applicable where a person convicted is on bail, has been sentenced to imprisonment not exceeding 3 years, or the offence committed by him is bailable and he is on bail. 

Frequently Asked Questions (FAQs)

What is the normal rule during an appeal with respect to the suspension of a sentence?

The normal rule under the Section is that when the appeal made by the convicted person is pending or he satisfies the trial court that he wants to make an appeal, his sentence is suspended by the court. The trial court has to grant him bail unless it has some special reasons for not doing so (subsection 3 of Section 389). 

Do High Courts have the power to suspend a sentence for an offence under the Narcotic Drugs and Psychotropic Substances Act 1985?

The High Courts have been given the power to suspend the sentence of a convicted person in such cases under Section 36B of the Act, which is subject to various conditions and limitations under Section 37 of the Act. 

Can a sentence be suspended in the case of murder?

Generally, the sentence is not suspended in serious crimes like murder, but in some exceptional cases, it is, depending upon the facts and circumstances of each case. In one case, the accused was convicted of murder and his sentence was suspended while his appeal was pending. The High Court did not record any reasons for the same, so the order was set aside and the suspension was not allowed (Ramji Prasad v. Rattan Kumar Jaiswal, 2002).

References 

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