2014 Supreme(Pat) 103

IN THE HIGH COURT OF JUDICATURE AT PATNA
I.A. ANSARI and V.N. SINHA, JJ.
(27.1.2014)
I.A. Nos. 1746, 1627, 1603, 1709 of 2013 with Cr. Appeal (DB) Nos. 1403/2010, 291/2012 and 378, 975 of 2013
Chandra Shekhar Bharti (in 1403)
Chandra Pratap Singh @ C.K. Singh
@ Chand Pratap Singh (in 291)
Dr. Braj Bhushan Prasad : Appellants
@ Dr. Brij Bhushan Prasad (in 378)
Chhote Sharma and Anr. (in 975)
Vs.
The State of Bihar : Respondent
(in all)

Headnote:Code of Criminal Procedure, 1973–Section 389 (3)–Suspension of sentence by trial court–Section 389 Cr.P.C., which relates to suspension of sentence, covers suspension of sentence by the Trial Court, which may have convicted to which the appeal has been preferred–for suspension of sentence by Trial Court, the first requirement is that the person, seeking suspension of sentence, ought to have been on bail–the second requirement for exercise of power suspension is that the sentence of imprisonment should not exceed three years–the third requirement is that the trial court must be satisfied that the convict intends to prefer an appeal–if all the three requirements are satisfied, suspension of sentence, under sub-section (3), is, ordinarily the rule and special reasons must exist for denying suspension–however, in a given case, where all the factors for suspending the sentence are present, yet the trial court may deny the suspension and commit the convict to custody if the conditions of bail, which the trial court imposes, are not met by the convict. (Paras 37 to 40 & 43)

       Code of Criminal Procedure, 1973–sub-sections (1) & (2) of Section 389–Suspension of sentence by the Appellate Court–pending decision of an appeal made by a convicted person, the Appellate Court may suspend execution of sentence and also, if the accused person is in confinement, direct his release on bail or on his own bond–indispensable requirement before sentence is suspended is that the court must assign reason, in writing, for suspending execution of sentence–at the time of presentation of appeal petiition against conviction or sentence both, if an Appellate Court is faced with such rare circumstances, wherein interim, temporary or provisional order of suspension of sentence is called for, the denial of which may cause severe hardship to the appellant, the Appellate Court can, by taking resort to the doctrine of implied power, exercise its jurisdiction, under Section 389 (1) Cr. P.C., by suspending the sentence temporarily and allowing the convict to go on bail for a specified period or until a decision is finally taken on the appellant's application, made under Section 389(1) Cr. P.C., seeking suspension of his sentence and consequent release on bail until disposal of his appeal–such an order of interim suspension of sentence will, thus be wholly temporary in nature may not necessanily be based on the merits of the case, but on humanitarian considerations too or for enforcement of human rights as envisaged by Article 21 of the Constitution of India–such a temporary, interim or provisional order of suspension of sentence has to be for a definite time frame depending on the facts of each case–on the expiry of the term for which the sentence in temporarily suspended pending an appellant's application seeking suspension of sentence and bail, the appellant shall have to surrender to the court, until the appellant's application, seeking suspension of sentence and bail, it finally disposed of. (Paras 48, 80 & 81)

       Code of Criminal Procedure, 1973–Section 389 and Constitution of India–Article 21–Suspension of Sentence–Article 21 gives to every person, citizen as well as non-citizens, a guarantee to protect his right to live with dignity'–Viewed from this angle, it becomes clear that when a person suffers from such an illness, which threatens his life, the act of not allowing him to go on bail by suspendending his sentence of imprisonment would negate his right to live, particularly, if the State is unable to provide the prisoner with the kind of treatment, which the petitioner may need–thus, it would be the duty of the Appellate Court to suspend sentence of an appellant, if the appellant is sick and the State is unable to provide, while keeping him in custoduy, medical treatment, which the prisoner's sickness necessitates. (Para 102)

       AIR 1945 PC 94, AIR 1990 P & H 117 (FB), (2000)6 SCC 395, AIR 1967 SC 286, (1995)2 SCC 513, MANU/SC/0620/1996: 1996 Cri. L.J. 3495, MANU/SC/0409/2001: 2001 Cri. L.J. 4234, AIR 2001 SC 3435, MANU/SC1077/2003: 2004 Cri. L.J. 919, (2007)1 SCC 673, (2007)2 SCC 574, 1989 Cri. L.J. 163, AIR 1969 SC 430, AIR 1980 SC 1579, AIR 1981 SC 746, AIR 1977 SC 2147, AIR 1987 Pat 274, MANU/GH/0639/2010–Referred.