While leaving no scope for ambiguity of any kind, the Apex Court has in a most learned, laudable, landmark and latest judgment titled Omprakash Sahni v. Jai Shankar Chaudhary And Anr Etc in Criminal Appeal Nos. 1331-1332 of 2023 that was pronounced as recently as on May 2, 2023 has been forthright in holding that in order to suspend the substantive order of sentence under Section 389 of the Criminal Procedure Code, there ought to be something apparent or gross on the face of the record, on the basis of which the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable.

It was also underscored by the Apex Court that the endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal.

It must be noted that the Bench of Apex Court comprising of Hon’ble Mr Justice MR Shah and Hon’ble Mr Justice JB Pardiwala set aside the order of suspension of sentence passed by the Patna High Court and directed the convicted persons who were enlarged on bail to surrender before the Trial Court within a period of three days from the date of judgment.

It was also made clear by the Apex Court that the Appellate Court should not re-appreciate the evidence at the stage of Section 389 of the CrPC and try to pick up few lacunas or loopholes here or there in the case of the prosecution as such would not be a correct approach. Very rightly so!

Introduction
At the very outset, this brief, brilliant and balanced judgment authored by Hon’ble Mr Justice JB Pardiwala for a Bench of Apex Court comprising of Hon’ble Mr Justice MR Shah and hiomself sets the ball rolling by first and foremost putting forth in para 1 that:
These appeals are at the instance of the original first informant (brother of the deceased) and are directed against a common order passed by the High Court of Judicature at Patna in Criminal Appeal (DB) No. 322 of 2021 and Criminal Appeal (DB) No. 411 of 2021 respectively by which, the High Court suspended the substantive order of sentence of life imprisonment imposed by the Trial Court on the respondent Nos. 1, 3 and 4 respectively herein (convicts) and ordered their release on bail pending the final disposal of the two criminal appeals referred to above.

Factual Matrix
To put things in perspective, the Bench envisages in para 2 that:
It appears from the materials on record that the respondents Nos. 1, 3 and 4 respectively herein along with six other co-accused were put to trial in the Court of Additional Sessions Judge-VII, Vaishali, Hajipur, District: Vaishali at Hajipur (Bihar) in Sessions Trial No. 280/2019 for the offences punishable under Sections 302, 120-B, 506 respectively read with Section 34 of the Indian Penal Code, 1860 (for short, ‘the IPC’) and Section 27 of the Arms Act, 1959 (for short, ‘the 1959 Act’).

As it turned out, the Bench then discloses in para 3 that:
The three respondents herein, namely, Jai Shankar Chaudhary, Abhay Kumar and Ram Babu respectively were held guilty by the Trial Court, of the offence of murder of the brother of the appellant herein, namely, Manish Kumar. The other co-accused were ordered to be acquitted.

As we see, the Bench then further points out in para 4 that:
The respondents Nos. 1, 3 and 4 respectively herein went in appeal before the High Court of Judicature at Patna, challenging the order of conviction and sentence passed by the Trial Court.

Further, the Bench then reveals in para 8 that:
The three convicts before us i.e., the respondents Nos. 1, 3 and 4 respectively prayed before the High Court that they be released on bail pending the final disposal of their appeals by suspending the substantive order of sentence of life imprisonment.

Briefly stated, the Bench then observes in para 9 that:
The High Court suspended the substantive order of sentence of all the three convicts and ordered their release on bail vide the impugned order dated 16.09.2022.

Needless to say, the Bench then states in para 10 that:
The original first informant (brother of the deceased) being aggrieved and dissatisfied with the aforesaid order passed by the High Court has come up in appeals before us.

Simply put, the Bench states in para 21 that:
Suspension conveys postponement or temporarily preventing a state of affairs from continuing. According to the Black’s Law Dictionary (Seventh Edition), the word ‘suspend’ means, inter alia, to interrupt; postpone; defer. The Black’s Law Dictionary (Seventh Edition) describes the word ‘suspension’ to mean, inter alia, an act of temporarily delaying, interrupting or terminating something. Attributing the same meaning to the word ‘suspend’ as pointed out above, the New Oxford Dictionary of English (1998 Edition) describes suspend as temporarily preventing from continuing or being enforced or given effect or defer or delay an action, event or judgment.

To put it differently, the Bench then specifies in para 22 that:
Thus, when we speak of suspension of sentence after conviction, the idea is to defer or postpone the execution of the sentence. The purpose of postponement of sentence cannot be achieved by detaining the convict in jail; hence, as a natural consequence of postponement of execution, the convict may be enlarged on bail till further orders.

More to the point, the Bench adds in para 23 that:
The principle underlying the theory of criminal jurisprudence in our country is that an accused is presumed to be innocent till he is held guilty by a court of the competent jurisdiction. Once the accused is held guilty, the presumption of innocence gets erased. In the same manner, if the accused is acquitted, then the presumption of innocence gets further fortified.

Do note, the Bench observes in para 24 that:
From perusal of Section 389 of the CrPC, it is evident that save and except the matter falling under the category of sub-section 3 neither any specific principle of law is laid down nor any criteria has been fixed for consideration of the prayer of the convict and further, having a judgment of conviction erasing the presumption leaning in favour of the accused regarding innocence till contrary recorded by the court of the competent jurisdiction, and in the aforesaid background, there happens to be a fine distinction between the prayer for bail at the pre-conviction as well as the post-conviction stage, viz Sections 437, 438, 439 and 389(1) of the CrPC.

Most significantly, the Bench mandates in para 33 that:
Bearing in mind the aforesaid principles of law, the endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal.

If the answer to the above said question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable.

To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The Appellate Court should not reappreciate the evidence at the stage of Section 389 of the CrPC and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach.

Most forthrightly, the Bench observes in para 34 that:
In the case on hand, what the High Court has done is something impermissible. High Court has gone into the issues like political rivalry, delay in lodging the FIR, some over-writings in the First Information Report etc. All these aspects, will have to be looked into at the time of the final hearing of the appeals filed by the convicts.

Upon cursory scanning of the evidence on record, we are unable to agree with the contentions coming from the learned Senior Counsel for the convicts that, either there is absolutely no case against the convicts or that the evidence against them is so weak and feeble in nature, that, ultimately in all probabilities the proceedings would terminate in their favour. For the very same reason we are unable to accept the contention coming from the convicts through their learned Senior Counsel that, it would be meaningless, improper and unjust to keep them behind the bars for a pretty long time till they are found not to be guilty of the charges.

As a corollary, the Bench then holds in para 35 that:
In the overall view of the matter, we are convinced that the High Court committed a serious error in suspending the substantive order of sentence of the convicts and their release on bail pending the final disposal of their criminal appeals.

On a pragmatic note, the Bench notes in para 36 that:
In fact, it was expected of the State as the prosecuting agency to challenge the order passed by the High Court, but for some reason or the other, the State thought fit not to do anything further. Ultimately, it is the original first informant (brother of the deceased) who had to come before this Court.

For sake of clarity, the Bench then clarifies in para 37 that:
We make it clear and it goes without saying that any observations touching the merits of the case are purely for the purpose of deciding the present appeals and shall not be construed as an expression of the final opinion in the pending criminal appeals before the High Court.

In addition, the Bench then directs in para 38 that:
In the result, both the appeals succeed and are hereby allowed.

What’s more, the Bench then further directs in para 39 that:
The impugned order passed by the High Court is hereby set aside.

Finally, the Bench then concludes by holding in para 40 that:
The convicts are ordered to surrender before the Trial Court within a period of three days from today.

In conclusion, we thus see that the Apex Court has made it indubitably clear that sentence can be suspended in appeal only if convict has fair chances of acquittal. It thus merits no reiteration that all the Courts including the High Courts must pay heed to what the Apex Court has directed so very clearly, cogently and convincingly in this leading case. No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh