Suspension of sentence pending appeal

Accused/appellant was convicted for the offence under S.9(c) Control of Narcotic Substances Act, 1997 and was sentenced to four years

Provisions of S.426, Cr.P.C do not grant an absolute right to bail upon conviction but rather require the demonstration of exceptional circumstances warranting the suspension of the sentence

Appellant had failed to establish any compelling reasons that would justify interference at this stage

Offence under S.9(c) falls within the ambit of special law, which is to be interpreted and applied in accordance with the legislative intent rather than in light of general criminal jurisprudence

Provisions governing narcotics offences underscore the gravity of such crimes and necessitate a strict application of sentencing laws to serve as a deterrent

In the present case, the appeal of the appellant was filed on 10.01.2024, and there was no evidence to suggest any unreasonable delay in its adjudication

Since the statutory requirement of prolonged pendency had not been met, the appellant was not entitled to be released on bail under the provision of Section 426, Cr.P.C

Applicant had failed to point out any illegality in the impugned judgment, thus, the same was dismissed.

Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly, common intention, possessing illegal weapons, act of terrorism

Suspension of sentence pending appeal

Record showed that criminal appeal was sub-judice before the Court after lapse of more than three years

Petitioners were in judicial lock up for the last more than four years

Question for judicial consideration in the petition was that, whether an appeal filed under the special enactment if not decided within fifteen days, would give any right to the convict for his release on bail?

Section 25(5) of the Anti-Terrorism Act, 1997 ('Act 1997') directs that appeal is to be decided within seven days and subsection (8) of the said provision prohibits that during pendency of the appeal, the convict shall not be released

On this particular provision, during pendency of the appeal within the said seven days the convict shall not be released on bail

Section 25 of the Act, 1997 does not give any answer that if the appeal is not decided within seven days what would be the result of the same or if the appeal could not be decided for default of the complainant, the convict would be left unattended

Record in the main appeal showed that appeal was adjourned on the request of rival parties and the prosecutor and sometimes the appeal was adjourned due to strike of the members of the Bar Association

Secondly the provisions of S.25 of the Act, 1997 and S.426, Cr.P.C were not inconsistent with each other

No doubt appeal of a convict who was serving out the sentence of imprisonment should be decided within shortest possible time, but if the same was delayed for any reason beyond the control of the parties, Court should not leave the matter unattended

In the instant case, the appellants/convict petitioners were behind the bars since their arrest i.e. from the year 2020 and their appeal was pending before the Court since 10/11/2021, without any fault on their part

Appellants/ petitioners had been convicted for a period of 7 years with the benefit of S.382 (B) Cr.P.C. and they had already served out major portion of their imprisonment

Appeal of appellant/ convicts/petitioners was not likely to be fixed in the near future due to summer vacations

Since the major portion of sentence awarded to the petitioners had elapsed and statutory right of bail as envisaged in S.426, Cr.P.C already accrued to the petitioner/appellant, as such other merits of the case need not be discussed

Petition was allowed by suspending the sentence awarded to the appellants/petitioners.

Record showed that convictions and sentences passed by the Trial Court against the applicant (convict) were upheld by High Court

Sole ground taken by the applicant (convict) in his application was that he was an ailing and old age person of 79-years and no proper medication was provided to him and he even could not properly walk without proper assistance of two persons

Ground so taken by the applicant (convict) was not justified either to suspend the operations of conviction orders and to release him on bail for the sole reason that no proper medical documents were appended with the application

Bald version could not be made basis for suspension of the conviction and sentence of the applicant (accused)

Even otherwise, since the matter was pending adjudication before the Supreme Court it would be more appropriate for the applicant (convict) to approach the said forum for his release on bail

Application was accordingly dismissed.

Allegation against the petitioner was that he caused injury with Churri on the left side of chest of victim who succumbed to the injuries

Petitioner was arrested on 07.11.2019, judgment was pronounced on 29.03.2022 and since then, his appeal had not been taken for regular hearing

On 16.06.2022, the appeal was admitted for regular hearing and then was taken up for 20.09.2022 wherein complainant side sought adjournment and it was never fixed again

Thus, delay was not attributable to the petitioner which is why the petitioner also urged his petition on statutory ground of delay as well

Considering the heavy backlog, the main appeal of the petitioner relating to the year 2022 was not likely to be taken up for hearing in near future as well

From tentative assessment of the trial Court judgment, it could conveniently be observed that case of the petitioner did not attract the proviso to S.426(1-A), Cr.P.C, as he could not be termed as hardened, desperate or a dangerous criminal nor he was previous convict of any offence punishable with death or imprisonment for life nor an accused of an offence of terrorism punishable with death or imprisonment for life

Petition was accordingly allowed.

Qatl-i-amd, house-trespass, having made preparation for causing hurt to any person or for assaulting any person or for wrongfully restraining any person, rioting armed with deadly weapons, unlawful assembly

Suspension of sentence pending appeal

Convict sought suspension of execution of his sentence on merits

Accused were charged for committing murder of the deceased by firing

Record showed that a co-accused, who as per case of the prosecution, caused injury to the deceased of the case as well as two other co-accused persons, whose roles were at par and similar with the petitioner, had already been acquitted in the case by the Trial Court on the basis of same evidence through the same impugned judgment

As per case of the prosecution, pistol was recovered from a co-accused, whereas pistol and .44 bore rifle were recovered from present applicant however after going through the impugned judgment, it had been apprised by counsel for both the parties as well as prosecutor that it had not been mentioned in the impugned judgment that empties secured from the place of occurrence were found as having been fired from said weapons

When all said factors were taken into consideration in totality, then conviction recorded and sentence awarded to the present applicant needed reappraisal of evidence

Applicant/convict was on bail during trial of the case and nothing was available on the record to show that he misused said concession

In such circumstances, case of the applicant for suspension of execution of the sentence had been made out

Resultantly, application was allowed.

Where allegation against convict-appellant was that he had made telephone calls from abroad and had hatched the conspiracy to commit murder of three innocent persons, Supreme Court observed that the convict was not a hardened, desperate or dangerous criminal.

Main purpose of S. 426, Cr.P.C. at first is to ascertain whether delay in deciding appeal is occasioned by act or omission of convict or any other person on his behalf.

If the Appellate Court comes to the conclusion that the convict person, who has filed an application for suspension of sentence on the ground of statutory period is a hardened, desperate or dangerous criminal and has acted in a desperate manner his application for suspension of sentence bail can be refused.

Convict-appellant earns a statutory right for suspension of sentence and grant of bail in his favour under S. 426(1-A)(c) of the Code of Criminal Procedure, 1898, when the delay in disposal of the appeal by the Appellate Court is not occasioned by an or omission of appellant or any other person acting on his behalf

Furthermore, as per conditions laid down in the proviso to S. 426, he should not be previously convicted or a person who in the opinion of the Court is hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.

Accused was charged under the allegation of causing an injury on the head of deceased with hatchet which injury was observed by the doctor as measuring 5x1 cm with a skin cut and such injury had not been declared as the cause of death

During investigation nothing was recovered from the accused; even motive had not been proved during trial

Accused was behind bars since his arrest; his criminal liability was open to assessment at the time of appraisal of evidence while hearing the main appeal

At present Court could not go deep into the evidence

Accused had made out a case of further inquiry

Sentence of the accused was suspended till final decision of the appeal.

Notwithstanding the juvenility of the convict, period of two years for considering statutory ground for suspension of his sentence provided in S. 426(1-A)(c), Cr.P.C., shall be unchanged and the statutory ground for bail of a juvenile during the trial cannot be extended to him after conviction and he will be treated as a convict under the relevant provisions of Code of Criminal Procedure, 1898.

Judicial Magistrate had not given any observation about the medical of the victim, it was not clear that the injuries otherwise were available in the medical report

Description of injury was not mentioned nor exhibited

No seminal material was detected from the anal swabs, which shook the prosecution case that as to whether sole testimony of victim was consistent or coherent

Apparently, a doubt casted on medical evidence coupled with sole testimony of victim and negative Forensic Science Agency Report made the case of petitioner one of suspension of sentence

Petitioner was convicted firstly on 08.2.2020 by the Judicial Magistrate and his conviction and sentence was maintained by the Appellate Court on 04.01.2021

Petitioner had already served out a sufficient period as under trial prisoner and later as convicted prisoner

Accumulative incarceration of petitioner was about one and half year

During trial petitioner remained on bail and had not misused the same

Report regarding health condition of the petitioner was received from Medical Officer of District Jail, who diagnosed lumbosacral pain radiating to B/L legs, numbness and paresthesia

Symptomatic treatment was being provided to the said convict prisoner by the advice of Orthopaedic Surgeon but his pain persisted on and off

Case was related to the year 2021 and keeping in view the heavy backlog, there was no likelihood of its early hearing in the near future

Resultantly, the petition was allowed and sentence of the petitioner was suspended, in circumstances.

Petitioner was convicted and sentenced by the judgment dated 22.3.2017 against which the appeal was filed before the High Court on 7.4.2017

Appeal pertained to the year 2017, therefore, chances of hearing were in bleak

Petitioner had not contributed in non-disposal of main appeal

Two years had already been elapsed since pendency of the appeal, therefore, petitioner had earned the right of his release on bail on the ground of statutory delay

Haunting silence was on record that the petitioner was desperate, dangerous or hardened criminal or he was previously convicted in a case of similar nature

Possibility existed that in case petitioner's sentence was not suspended, pending his appeal, lest he should not serve about his entire sentence rendering his appeal infructuous and if ultimately he earned an acquittal, he might not be compensated for incarceration

Petition for suspension of sentence was allowed, in circumstances.

Accused was sentenced to imprisonment for life by High Court under S. 9(c) of the Control of Narcotic Substances Act, 1997

Held; High Court became functus officio after ruling on a lis

Until and unless it could be shown why a petition for the suspension of the sentence could not be lodged in the first instance before the Supreme Court, the High Court's jurisdiction did not revive

When the Supreme Court had already taken cognizance of the matter and while High Court had already dismissed the appeal and had maintained his conviction recorded by the Trial Court and when there was no legal impediment in the way of the accused to approach the Supreme Court, it would not be proper to suspend the sentence awarded to the accused and confirmed by the High Court

Application was dismissed.

Liberty of a person being precious right, which is also guaranteed under the Constitution coupled with the fact that if after suffering the incarceration in jail, the petitioner is acquitted, how he could be compensated for his incarceration, as there is no reparatory arrangement so far provided in any law including the Cr.P.C. to compensate him for incarceration in prison for years, while to the contrary subsection (3) of S. 426, Cr.P.C. provides that while computing the sentence of convict, the period during which this sentence was suspended and he was released on bail, shall be excluded from the total period of sentence, he has to undergo.

Only evidence available on record against the accused was wajtakar furnished by paternal uncles of complainant as well as deceased and despite the fact that they were residents of same vicinity, their names were not mentioned in the crime report

No identification parade was held in the case

In the absence of any motive for the commission of the alleged offence, the upholding of the sentence imposed upon the appellant in peculiar circumstances of the case required very serious consideration, which could be undertaken at the time of hearing of appeal

Appellant had already undergone sentence of about eight and half years, whereas disposal of main criminal appeal was not within sight in near future

Ground of statutory delay was also available to the appellant

Appellant was neither a hardened nor desperate criminal

Application for suspension of sentence was allowed.

Attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-mudihah, rioting, rioting armed with deadly weapon, unlawful assembly, abetment, criminal intimidation and common intention

Suspension of sentence pending appeal

Delay in decision of appeal

Scope

Accused sought suspension of his sentence and released on bail during the pendency of appeal on the statutory ground of delay in its decision

Record showed that accused had been awarded simple imprisonment in case of non-payment of arsh amount to the injured, which came within the ambit of short sentence and he was also on bail before Trial Court

Record transpired that accused never misused such concession

Moreover, looking to the heavy backlog at circuit Bench hearing of captioned appeal would also take some time

Prosecution raised no objection, therefore, operation of the impugned judgment was suspended during pendency of appeal

Resultantly, accused was released on bail

Application was disposed of in the said terms.

Sentence under S.426, Cr.P.C., can be suspended after coming to the conclusion that at the end of the day, there would be no chance of maintainability of conviction, without making deeper appreciation of evidence

Although, sometimes, for determining the validity of conviction order, tentative assessment of evidence may be made in certain eventualities, however said exception by no means can be invoked for defeating the general principle.

Power of Appellate Court under S. 426(1), Cr.P.C., is not limited and Court, during the pendency of appeal may suspend the sentence of a convict in an appropriate case in its discretion for good and sufficient reasons but such power of suspension of sentence and grant of bail is not wider than that under S. 497, Cr.P.C.

Qatl-i-amd, kidnapping or abducting in order to murder, causing disappearance of evidence of offence and common intention

Suspension of sentence pending appeal

Scope

Accused sought suspension of her sentence pending appeal

Accused was convicted and sentenced on the basis of circumstantial evidence

Accused lady was behind the bars along with her suckling baby and as such she had undergone sentence of more than 04 years and the disposal of appeal in the near future was bleak due to rush of work

Three co-accused persons on the basis of same evidence had been acquitted by the Trial Court and on that score she was also entitled for suspension of her sentence

Ground of statutory delay, in view of S. 426(1-A), Cr.P.C. was also available to the petitioner

High Court observed that petitioner was neither hardened nor desperate criminal

If after suffering the incarceration in jail, the petitioner was ultimately acquitted, there will be no compensation for her incarceration

Application for suspension of sentence was accepted, in circumstances.

Petition was allowed and the sentence awarded to the accused was suspended, in circumstances.

Nothing was available on record to show that the petitioner was a previous convict or a hardened, desperate or dangerous criminal or was accused of an act of terrorism punishable with death or imprisonment for life

Appeal, despite lapse of more than six years and five months, had not been disposed of

Delay in hearing of the appeal was not caused by the petitioner or any person acting on his behalf

No prospect of the early hearing of the main appeal existed

Petition for suspension of sentence was allowed, in circumstances.

Sentence awarded to the accused was suspended and he was admitted to bail, in circumstances.

Accused persons sought suspension of sentence pending appeal, it could not be prima facie accepted that the role of women/accused persons and the three men was identical

Record showed and also confirmed by prosecution that nothing was recovered from the ladies and whatever was recovered was recovered from the three other male accused persons

Application for suspension of sentence was allowed and the accused persons were admitted to bail pending appeal, in circumstances.

Petitioner was behind the bars since the date of his arrest and as such he had already served a period of two years and ten months out of his sentence of six years

No prospect of decision of the main appeal in the near future existed

Possibility could not be ruled out that the petitioner might serve out his entire sentence before the decision of his main appeal on merits and in such eventuality, purpose of filing of appeal would become infructuous

Sentence awarded by the Trial Court was against the policy of awarding sentence, according to which in case of recovery of charas exceeding 1 kg and upto 2 kg, an accused had to be convicted and sentenced to four years and six months rigorous imprisonment

Quantum of sentence awarded by Trial Court required serious re-consideration

Petition was allowed.

Appellant sought suspension of his sentence and release on bail during the pendency of appeal on the statutory ground of delay in its decision

Held, appellant was in jail for a period of more than two years and there was no hope of early hearing of the appeal

Appellant had not contributed towards delay in decision of appeal

Suspension of sentence was a rule and its refusal was an exception

Petition for suspension of sentence was allowed and the appellant was ordered to be released on bail.

Appellant sought suspension of sentence and his release on bail on the ground that the sentence awarded to him by the Trial Court was imprisonment for two years and that appeal would take sufficient time in its disposal

State recorded its "no objection" for suspension of sentence on the ground that the sentence was short one and appellant was convicted under bailable offence

Validity

Appellant was convicted and sentenced to suffer rigorous imprisonment for two years by the Trial Court, which was a short sentence and there was no likelihood that his appeal could be heard and decided in near future due to backlog of cases in the court

Application for suspension of sentence was allowed, in circumstances.

Appellate Court's discretion to grant bail under S.426, Cr.P.C., was not fettered or restricted by reference either to the conviction or to the sentence passed against the applicants/accused persons by the Trial Court, but like all discretions vested in the court, the discretion had to be exercised judicially

High Court suspended the sentences awarded to the accused persons during pendency of appeal.

Accused sought suspension of sentence passed under S.302(c), P.P.C. for imprisonment of five years and was also sentenced to imprisonment for six months under Ss.459 & 506(b), P.P.C.

Accused had already undergone the sentences awarded to him under Ss.506(b) & 459, P.P.C.; he had also undergone the major portion of the sentence awarded to him under S.302(c), P.P.C. and if the remissions under Jail Manual were counted then he would almost have undergone the entire sentences

Hearing of the appeal might take some time, therefore, convict was entitled to be released on bail by suspending his sentence

Petition under S. 426, Cr.P.C. was allowed.

Plea of appellant was that he was an aged person of 82 years of age and besides, the role assigned to him was only of instigation

Validity

Appeal filed by appellant was a fresh one and he was not entitled to be benefitted by the provisions of S. 462(1A)(c), Cr.P.C., which required that if appeal was not decided within a period of two years of conviction, accused could be released on bail

Old age of accused was no ground for suspending sentence

Petition was dismissed, accordingly.

No likelihood of hearing and deciding the appeal in near future existed, keeping in view the heavy backlog of pending cases

Conviction and sentence awarded to appellant was suspended till disposal of main appeal.

Trial Court convicted/sentenced the accused and High Court maintained the same; whereas, Supreme Court allowed leave to appeal to consider questions as to absence of medical evidence; applicability of S. 7 of Anti-Terrorism Act, 1997, etc.

High Court, having upheld the convictions and sentences passed by the Trial Court, could not go further into the matter

Constitutional petition was dismissed in circumstances.

Qatl-e-amd, attempt to commit qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, hurt, rioting armed with deadly weapon, unlawful assembly

Suspension of sentence pending appeal

Convict had not caused any harm to deceased during the occurrence and according to prosecution case he fired at the injured

Convict was acquitted under S.302 Penal Code, 1860

Complainant and injured witness had categorically submitted that they had compounded the offence and forgiven the convict in the name of Almighty Allah

All the offences were compoundable with the consent of court but for the offence under S. 452 Penal Code, 1860, for which he had been sentenced to three years' R.I.

Convict had already served the sentence of three years

Offence being not compoundable did not come in the way of spirit of parties, whereby, they had decided to bury the hatchet and live in peace in future

Sentence of convict was suspended.

Application under S. 426, Cr.P.C. was accepted accordingly.

Not mandatory and essential to examine entire evidence, merits and demerits of appeal while dealing with application under S.426, Cr.P.C.

In the present case, due to backlog of cases, hearing of appeal would not be possible in near future while sentence awarded to accused fell within ambit of "short sentence" (Three years)

Accused, in circumstances, succeeded to make out case for enlargement on bail

Application under S.426, Cr.P.C. was accepted and sentence awarded to accused by Trial Court was suspended, accordingly.

Suspension of sentence without a specific order for suspension of conviction did not mean or include suspension of conviction, and despite suspension of sentence, conviction would remain intact

Distinction existed between a "conviction" and "sentence" and suspension of a sentence did not mean automatic suspension of conviction

No bar, however, existed on the Appellate Court under S.426, Cr.P.C. to suspend sentence and also suspend the conviction in appropriate cases where an application was moved before such court if the adverse consequences of maintaining such conviction were brought to the notice of the Appellate Court and a specific prayer was made in such regard.