CrPC Section 389 - Suspension Of Sentence Pending The Appeal

Section 389 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), deals with the Conditions based on which a Convicted Person can have his sentence suspended pending an appeal. This section thus Empowers the Appellate Court to release the convicted person on bail upon fulfilment of certain conditions. These conditions include the severity of the Crime, the possibility that a person may run away from conviction, etc.. The Section also empowers the release of Convicted persons on Bail pending appeal whenever a sentence is for not more than three years or a ‘Bailable Offence’. 

Legal Provision of CrPC Section 389 - Suspension Of Sentence Pending The Appeal; Release Of Appellant On Bail

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 his bond.

[Provided that the Appellate Court shall, before releasing on Bail or on his 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, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

Provided further that in cases where a convicted person is released on bail, it shall be open to the Public Prosecutor to file an Application for the Cancellation of the bail.] [Added by Act 25 of 2005, Section 33 (w.e.f. 23-6-2006).]

2. The Power Conferred by this section on an Appellate Court may be exercised also by the High Court in the Case of an Appeal by a Convicted Person to a Court Subordinate thereto.

3. Where the Convicted Person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall, 

   1. Where such a Person, being on Bail, is Sentenced to imprisonment for a term not exceeding three years; or

   2. Where the offence of which such person has been convicted is bailable one, and he is on bail, order that the convicted person be released on Bail, unless there are special reasons for Refusing Bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

4. When the appellant is ultimately sentenced to imprisonment for a Term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

Simplified Explanation Of CrPC Section 389

Section 389 of the Code outlines the Conditions that must be followed for any convicted person to seek suspension of sentence pending the appeal or release of the appellant on bail. The Section provides for the following:

• Section 389(1): This Section gives discretion to an Appellate Court to order a stay of execution of a sentence pending appeal and release the convicted person to bail or on his bond. For which sufficient reasons have to be given in writing. Within this section, there are two provisions, namely :

The First is that in cases of conviction involving offences punishable with Death, Life Imprisonment, or imprisonment not less than Ten Years, the Appellate Court shall hear the Public Prosecutor before Granting Bail or Bond. 

The Second Proviso is that such a Public Prosecutor may move the Court to have the Bail Cancelled, if Already Granted.

• Section 389(2): This Section gives the High Court similar powers to the Appellate Court in those Cases where the appeal is to a Subordinate Court

• Section 389(3): This Section explains those Situations where the Court that has convicted the person needs to release them on bail in case the person intends to appeal:

1. If the Convicted Person, Already on Bail, is sentenced to imprisonment for Three Years or less;

2. if the Offence is Bailable and the Accused is Already on Bail;

3. There, the Court is to grant bail subject to there being any particular reasons for not granting bail so that 'The Appellant-Accused has sufficient time to move the Appellate Court and obtain the said Appellate Court's decision under subsection (1) above, during which the sentence of imprisonment does not come into operation.'.

• Section 389(4): This Section states that in case the sentence of imprisonment is confirmed on appeal, or a sentence of greater severity is passed for the offence, the time the accused has spent out of prison will not be included in calculating the total duration of his sentence. 

Practical Examples Illustrating CrPC Section 389

Section 389 of the Code grants the suspension of a sentence pending an appeal and the release of a convicted person on Bail. Let's understand, for better clarity, the Practical Application of this Section through examples :

Suspension Of Sentence Pending Appeal

Example: Suppose Ravi has been Convicted by the Trial Court for Theft and Sentenced to imprisonment for a term of two years. Ravi believes the Conviction is Unfair, so he decides to appeal the decision in the Appellate Court. Under Section 389(1), while filing the appeal, Ravi can request the Appellate Court to stay the execution of his sentence. The Court may order that the execution of the sentence be stayed till the appeal is disposed of. It may suspend the sentence and release him on Bail or on his Own Bond if it finds valid reasons for such release, which it must Record in Writing.

Release On Bail In Serious Offences

Example: Let's say Aman was convicted of a Serious Crime like Murder and Sentenced to Imprisonment for life. Aman appeals in the Higher Court. The first proviso under Section 389(1) then says that before the Appellate Court Grants him bail, the said Court shall have to grant an opportunity to the Public Prosecutor, Representing the State, to oppose the release of Aman by a note in Writing, because Murder is Considered as a Grave Offence.

Even on Bail, if Discharged, the Public Prosecutor may apply for Cancellation of Bail, if there is sufficient cause to believe that Aman may misuse his Freedom or Create a Threat to Society.

Power Of High Court To Suspend Sentence

Example: Seema, was convicted by the Lower Court for Murder and hence has moved to the High Court for appeal. According to Section 389(2), the High Court has Equal powers to suspend her sentence as an Appellate Court. So, if Seema appeals in the High Court, and the High Court finds enough grounds to grant it, then it can suspend the sentence and release her on Bail in consideration of an appeal.

Suspension Of Sentence For Minor Convictions

Example: Vikram was convicted of a Minor offence as petty theft- and sentenced to Six Months in Prison. However, all this time during the Trial, he had been out on bail. If Vikram wants to appeal, then Section 389(3) Empowers the Court that has convicted him to continue his release on Bail, provided he is going to file an appeal.

This is applicable if Vikram's sentence is not more than three years or if the offence is bailable. This gives time to him to file an appeal in the Higher Court and to wait for the Appellate Court’s decision. During Bail, his imprisonment will be Considered as Suspended.

Penalties And Punishments Under CrPC Section 389

Section 389 of the Code provides for the procedure for Suspending a sentence benign an appeal and release of the Convicted Person on Bail. The Section does not specifically prescribe any penalty or punishment for non-compliance with its provisions. 

Landmark Case Laws Related To CrPC Section 389

Kishori Lal vs. Rupa & Ors (2004)

In this case, the appeal has been made by the state against the order of the High Court granting bail to three Murder Convicts. The appellant brought flaws in that decision, and the Supreme Court agreed to the same and set aside the impugned order. It observed that while granting bail, the High Court had failed to consider the Material Facts as per Section 389 of the Code. The Court held the following:

• The High Court focused on the fact that appellants did not misuse the bail during the trial and it could not become a sufficient reason to suspend the sentence.

• Suspension of sentence, especially while confirming convictions under Section 302, IPC, calls for detailed reasons under exceptional circumstances.

• The Court explained that suspension of sentence and Bail are two different Legal Entities, and good behaviour when out on Bail during Trial cannot turn into a good enough reason for Suspension of Sentence after conviction.

Mayuram Subramanian Srinivasan vs. C.B.I (2006)

In this case, the Supreme Court held that in view of Order XXI Rule 13­A of the Supreme Court Rules, 1966, the appeals could not be entertained unless the appellants surrendered. Though Section 389 of the Code of Criminal Procedure, 1973 enabled suspension of sentences pending appeal and released the appellants on bail, the Court said it was indeed subject to the provisions of the Rules.

State of Punjab vs. Deepak Mattu (2007)

In this case, the appellants were convicted for corruption under the Prevention of Corruption Act. The impugned order passed by the High Court of Bombay had inter alia suspended the conviction of the Public Servant appellants pending appeal before the High Court. The Supreme Court found the reasons provided for the suspension of the sentence inadequate.

The Court held that the High Court had erroneously passed orders to suspend the conviction of the respondent by granting him Bail under Section 389 of the Code and thus set aside the impugned orders. The Supreme Court held the following:

• The High Court did not show any Special Reasons for Suspension, Particularly in a Case related to Corruption.

• Reasons like a Probable delay in the appeal were not sufficient to stay the conviction, more particularly of a Public Servant.

• What was stressed by the Court above all was that the Public Confidence must be Protected. Permitting convicted officials to continue in office pending an appeal can lead to eroding public morale and the integrity of the institutions.

• The discretion to modify any interlocutory orders by the High Courts must be exercised with due Judicial Consideration.

Navjot Singh Sidhu vs. State of Punjab (2007)

The Supreme Court in this case held that the power of an appellate Court to suspend or stay an order of conviction under Section 389 of the Code implies keeping in abeyance, for the time being, the actual carrying out of the sentence while the conviction remains in force. However, the Court made it clear that such discretion, under such peculiar circumstances, should be exercised only in rare cases.

The Court explained that:

• The person seeking a stay of conviction has the burden of clearly informing the Court what, if any, consequences would flow, or could be expected to flow, from the refusal of it.

• A stay of conviction is not a matter of course but an exception to the general rule and hence, it should be followed in an Exceptional Case.

• Where the conviction is stayed, the suspension of execution of the sentence usually, but not necessarily, follows and the conviction itself does not vanish.

Atul Tripathi vs. State of Uttar Pradesh & Anr. (2014)

The Supreme Court in this case has confined the judgement strictly to the formalities for release on bail of a convict under Section 389 of the Code.

The Court vacated the High Court order granting bail to respondents convicted of murder and sentenced to life imprisonment for non-compliance with Section 389 of the Code. The High Court granted bail without affording an opportunity to the Public Prosecutor to file written objections, as required by the law in case the convict is sentenced to death or imprisonment for life or imprisonment for a term of ten years or more.

Thus, the Supreme Court has distinguished between Grant of Pre-Conviction Bail under Section 439 of the Code and post-conviction bail under Section 389 of the Code. It has, thus, drawn the distinction that each may entail with its respective procedures. It relies on the mandatory nature of Section 389, thereby allowing the Court to take into consideration the severity of the offence, whether there has been any conviction in the past, and how far it may affect Public Confidence if Bail is granted.

It would not be enough compliance with the requirement of Section 389 only if a Copy of the appeal and the bail application is served on the Public Prosecutor. As per Section 389 of the Code, objections in writing have to be specifically invited. As that course was not adopted, the impugned order granting bail was found to be unsustainable. The Court thus remitted the bail applications to the High Court for fresh consideration, with strict adherence to the procedure prescribed under Section 389. 

The Court also summarised in short, the procedure to be followed when there is consideration of a bail under Section 389 in cases involving Severe Punishments:

• If the Appellate Court is inclined to release the convict on Bail, then without fail, the Public Prosecutor should be made to appear and an opportunity to file written objections must be given.

• The State will then file its written objections, if any.

• If the Public Prosecutor does not file written objections, then the Court shall State that in its Order.

• While Granting bail, the Court has to consider all relevant factors, which include factors pointed out by the Public Prosecutor even though not specifically mentioned in the objections.

Recent Changes

Through CrPC (Amendment) Act, 2005 two provisos were added to sub-section (1) of Section 389 of the Code. It added the following:

1. The Appellate Court will give notice to the Public Prosecutor before releasing a Convicted Person on Bail if he was convicted of an Offence Punishable with Death, Imprisonment for Life or Imprisonment for a term of not less than Ten Years; and 

2. The Public Prosecutor is allowed to move an application for cancellation of Bail Granted by the Appellate Court.

Summary

Under Section 389 of the Code, a Convicted Person has a Right to move an Application for Suspension of sentence Pending Appeal. On Admission of Appeal, the Appellate Court may order the Appellant to be released on Bail or his bond pending disposal of appeal. An opportunity has to be provided to the Public Prosecutor to oppose such release in cases where the accused is convicted of offences punishable with death or imprisonment for life or imprisonment for a term of 10 years or more. Even if bail is granted, the prosecutor can ask for its cancellation. This power can also be exercised by the High Court in respect of cases tried by Lower Courts. Apart from that, in case the sentenced person wishes to appeal and was out on bail on account of Minor Offences, for the time being, Bail is granted for a considerable amount of time for appeal. In Case the appeal is Rejected and the Person is held in Imprisonment, then this Period Spent in Bail is not Considered Part of the Period of Imprisonment.

Key Insights & Quick Facts

• Section 389 of the Criminal Procedure Code, 1973, deals with the suspension of sentence pending appeal and release of appellant on bail.

• The Appellate Court can order suspension of execution of sentence and may release the convict on bail or bond, pending appeal.

• If an accused has been convicted of an offence punishable with death, imprisonment for life or imprisonment for a term of ten years or more, the Public Prosecutor shall be given an opportunity to show cause why he should not be released on bail.

• This Section also empowers the Public Prosecutor to move for cancellation of bail if already granted.

• High Courts can also suspend sentences and grant bail to an individual when there is an appeal from lower Courts.

• If the convict was already on bail and has preferred an appeal, the Court can extend the bail further for some reasonable time so that the appeals are disposed of appropriately.

• The period for which a convict remains on bail while appealing is not considered included in the final sentence if the appeal is dismissed.