IMPORTANT POINT
The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really is necessary to be considered is whether reasons existed to suspend execution of sentence and thereafter grant bail.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Leave granted.

2. Challenge in these appeals is to the order passed by a Division Bench of the Rajasthan High Court directing suspension of sentence awarded to the respondents. It was directed that such suspension was to take effect on each one of them by furnishing a bond in the sum of Rs.50,000/- together with two sureties in the sum of Rs.25,000/- each to the satisfaction of the trial Court for the appearance before the High Court and on dates of hearing unless otherwise directed. The order was to operate in respect of the respondents who are the appellants in Criminal Appeal Nos.1420 and 1431 of 2007 pending before the Rajasthan High Court. It is to be noted that 51 persons were put on trial and 18 were convicted. Along with the appeals, the respondents filed application for suspension of sentence in terms of Section 389 of the Code of Criminal Procedure, 1873 (in short ‘Code’).

3. Impugning the order passed by the High Court the informant has filed these appeals. The respondents along with one Girdhari were convicted by learned Sessions Judge, Kotputali Dist. Jaipur, Rajasthan, in Sessions case no.16 of 2001. The accused-respondents were convicted for offence punishable under Sections 148, 325 read with Section 149, 324 read with Section 149, Section 323 read with Section 149, 427, 455 and 302 read with Section 109 of the Indian Penal Code, 1860 (in short ‘IPC’).

4. The following sentences were imposed :

148 IPC One year Six months RI 325/149 IPC Two years RI and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo RI for three months.

324/149 IPC One year RI and to pay a fine of Rs.200/-, in default of payment of fine, to further undergo RI for two months.

323/149 IPC Six months RI and to pay a fine of Rs.200/-, in default of payment of fine, to further undergo RI for two months.

427 IPC Six months RI and to pay a fine of Rs.200/- in dafult of payment of fine, to further undergo RI for two months.

455/149 IPC Three years RI and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo RI for six months.

302/149 IPC Imprisonment for life and to pay a fine of Rs.10000/-, in default of payment of fine, to further undergo RI for two years.

4. All the aforesaid substantive sentences were ordered to be run concurrently.

5. As noted above, out of 51 accused persons, 18 persons, including the appellants before the High Court were convicted and two had died during trial. They had prayed for suspension of the sentence which by the impugned order was accepted.

6. The High Court stated that without appreciating the case on merit and demerits of the case, it is allowing the petition.

7. Learned counsel for the appellant submitted that approach of the High Court is clearly erroneous. For exercising power under Section 389 of the Code certain parameters have been fixed which have not been kept in view by the High Court.

8. Learned counsel for the respondents, on the other hand, submitted that when the High Court took note of the fact that large number of persons were falsely implicated, the prayer in terms of Section 389 of the Code was to be accepted.

9. Section 389 of the Code empowers the Court to suspend the sentence pending the appeal and for release of the appellant on bail. Section 389 so far relevant reads as follows:

“389. Suspension of sentence pending the appeal; release of appellant on bail - (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that he execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

Provided that the Appellate Court shall, before releasing on bail or on his own 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 Prosecut