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Bail after Conviction: Analysing Section 389 CrPC

Under Section 389 of the Criminal Procedure Code (CrPC) in India, a convicted individual has the right to request for their sentence to be suspended while they appeal their conviction to a higher court. This provision can be better understood through the following simplified examples:
To illustrate Section 389 of the Criminal Procedure Code (CrPC), here are three straightforward scenarios:
  1. Victor's Theft Case: After being found guilty of theft and sentenced to two years in prison by a lower court, Victor believes there were errors in his trial and decides to appeal to a higher court. During the appeal process, he can request the higher court to suspend his two-year prison term until the appeal is resolved. If the higher court grants this request, Victor will not have to serve his prison sentence immediately, and it will be put on hold until the appeal is resolved.
  2. Ragini's Murder Case: Ragini has been convicted of murder and given a life sentence by a lower court. Maintaining her innocence, she appeals to a higher court. However, due to the severity of her crime, the higher court must first allow the government prosecutor to argue against releasing Ragini on bail during her appeal. If the higher court decides to grant bail, Ragini will be released from custody until the appeal is resolved.
  3. Firoz's Bail Continuation: Firoz is currently out on bail while awaiting trial for a non-bailable offense. However, he is found guilty by the lower court and sentenced to three years in prison. Firoz decides to appeal the decision to a higher court. He can ask the higher court to continue his bail status until the appeal process is completed. If the higher court agrees, Firoz will remain out on bail until the appeal is resolved, and his prison sentence will be put on hold.
That means if an individual is already out on bail while awaiting their trial and intends to appeal their conviction, they can request the court to continue their bail status until the appeal process is completed. This provision ensures that individuals are not unjustly detained while they exercise their right to appeal.

In essence, Section 389 of the CrPC provides a mechanism for convicted individuals to seek temporary relief from their sentences while they pursue appeals in higher courts. This ensures that their right to appeal is not hindered by being unjustly imprisoned during the appeal process.

Section 389 of Criminal Procedure Code, 1973:
  • In the event that an individual convicted of a crime wishes to contest the verdict, the higher court has the authority to suspend the punishment until the appeal process is resolved. In some cases, the individual may also be released from incarceration while awaiting the outcome of the appeal. However, for serious offenses such as those punishable by death, life imprisonment, or a minimum of ten years in jail, the higher court must grant the government lawyer an opportunity to present reasons why the individual should not be released. Furthermore, in the event that the individual is released during the appeal, the government lawyer retains the right to request that the release be revoked.
  • In case an individual who has been found guilty of an offence desires to challenge the verdict in a lower court, the higher court maintains the authority to render judgments regarding their appeal, similar to the process if they had appealed directly to the higher court.
  • If an individual who has been found guilty persuades the court where he was convicted that he plans to appeal, then the court will:

    In case such a person is granted bail and sentenced to imprisonment for a term of no more than three years, or if the offense has been deemed bailable and he or she is out on bail, the court must order that the accused be allowed bail and released unless there are some special reasons against it, for a period long enough to make an appeal before a higher court under Subsection (1) and obtain orders of the Appellate Court. By that time, the sentence of imprisonment shall be regarded as suspended during the pendency of such release on bail.
  • When a defendant is eventually sentenced to imprisonment for a term or to life imprisonment, the period of time during which they are released shall not be considered as part of the calculated sentence.
Supreme Court Judgment:
  • The Supreme Court, in the case of Atul Tripathi v. State of UP, discussed
    The extent and application of Section 389 of the Code of Criminal Procedure and released the following Guidelines on the suspension of a sentence while a criminal appeal is pending.
    1. Prior to considering the release of a convict who has been sentenced to death, life imprisonment, or imprisonment for a period of ten years or more, the appellate court must provide the public prosecutor with the opportunity to present written objections against such release.
    2. Upon being given this opportunity, the State must file any objections in writing.
    3. If the public prosecutor fails to submit written objections, the appellate court must specify in its order that no objections were filed despite being given the opportunity by the court.
    4. The court must carefully consider all relevant factors, whether mentioned in the objections or not, such as the seriousness of the offence, the nature of the crime, the age and criminal record of the convict, and the impact on public confidence in the court, before making a decision on the release.
  • The position of law regarding stay on orders of conviction has been firmly established by the Apex Court in its various judgments and precedents. As per section 389(1) of the Code of Criminal Procedure, the appellate court has the power to suspend a conviction. This was first recognized in the case of Ram Narang v. Ram Narang, where a 3-judge bench of the Supreme Court held that section 389(1) should be interpreted broadly and applied to orders of conviction in appropriate cases. The court stated that the phrase 'order appealed against' in section 389(1) includes orders of conviction. Therefore, section 389(1) not only provides relief against sentence and bail, but also allows for a stay on orders of conviction.

    It was also noted that even if the Code of Criminal Procedure, 1973 does not explicitly grant the High Court the power to stay orders of conviction under section 389(1), the court can exercise this power under its inherent jurisdiction provided in section 482 of the code. This section empowers the High Court to make necessary orders to prevent abuse of the court's process and ensure justice.
In conclusion, the Apex Court has made it clear that the appellate court can suspend orders of conviction under section 389(1) and that this power can also be exercised by the High Court under its inherent jurisdiction.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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