The court held that the discretion to suspend a sentence post-conviction must be exercised judiciously, considering the nature of the offence and the likelihood of appeal success.

ORDER :

The instant petition under Sections 437 and 439 read with Section 389(2) of Code of Criminal Procedure, 1973[for short "the Code"] has been filed by the Petitioner/Accused to release him on bail by suspending the execution of sentence passed in C.C.No.916 of 2016 by the Court of Judicial Magistrate of First Class, Dhone, dated 01.11.2023, pending disposal of Criminal Appeal No.167 of 2023 on the file of the Court of I Additional Sessions Judge, Kurnool.

2. The facts that led to filing of the present petition, in brief, are as follows:

a. A case in C.C.No.916 of 2016 on the file of the Court of Judicial Magistrate of First Class, Dhone, was registered against the Petitioner for the offences punishable under Sections 468, 409 and 420 of Indian Penal Code, 1860[for short "IPC"] and after completion of trial, on hearing both sides and on appreciation of evidence, the learned Magistrate convicted the Petitioner/Accused and sentenced him to undergo simple imprisonment for two years and also to pay fine of Rs.10,000/-, in default, to undergo simple imprisonment for one month, for the offence punishable under Section 409 IPC. Petitioner was also convicted and sentenced to undergo simple imprisonment for two years for the offence punishable under Section 465 IPC.

b. Impugning the order of conviction and sentence, the Petitioner/Accused preferred Criminal Appeal No.167 of 2023 before the Court of District and Sessions Judge, Kurnool. Petitioner/Accused filed Crl.M.P.No.508 of 2023 in Crl.A.No.167 of 2023 under Section 389(1) of Cr.P.C seeking to suspend the sentence imposed against him, during pendency of the appeal. The said petition was dismissed on 30.11.2023

c. As the sentence was not suspended, the Petitioner was sent to jail on 01.12.2023 and he is undergoing imprisonment in Central Jail, Kadapa.

d. The Petitioner filed a petition in CFR No.34 of 2024 in Crl.A.No.167 of 2023 seeking bail before the learned Sessions Judge, Kurnool and the same was also dismissed.

Arguments advanced at the Bar:

3. Heard Sri Lakshmikanth Reddy Desai, leaned counsel for the Petitioner and Sri K. Anand Kumar, the learned Assistant Public Prosecutor for the Respondent.

4. Learned counsel for the Petitioner submits that learned trial Judge has failed to appreciate the evidence on record in right perspective and that Petitioner was on bail throughout the trial and the learned trial Judge suspended the sentence and released the Petitioner on bail, from the date of judgment by exercising the power under Section 389(3) of the Code. Learned counsel further submits that the crucial documents Exs.P.3 to P.5 were not sent to the expert to know the truth or otherwise to justify the conviction for the offence under Section 465 and 409 of IPC, beyond reasonable doubt. Learned counsel would also point out that Petitioner was terminated from the employment and that there is no scope for the Petitioner to commit the similar offence or to flee from the jurisdiction of the Court to serve the sentence, in case of dismissal of the appeal. Learned counsel further states that, Petitioner has permanent abode and is ready to furnish the sureties to the satisfaction of the Court, to assure his presence as and when directed. Learned counsel finally submits that they have made out prima facie grounds in appeal and it is a fit case to suspend the sentence passed against the Petitioner.

5. Contrasting the same, learned Assistant Public Prosecutor would submit that, as rightly observed by the Appellate Court while dismissing the petition that the Prosecution has established the guilt of the accused beyond all reasonable doubt and there are no infirmities in the judgment of the trial Court. Accordingly prays for dismissal of the petition.

Point for Determination

6. Having heard the submissions and on perusal of the material of the record, the point that would arise for determination is:

Whether the Petitioner is entitled to be released on bail by suspending the sentence passed against hi