Vipul M. Pancholi, J.—

In Criminal Appeal (DB) No. 579 of 2024

As requested by learned counsel for the appellant, renotify this matter on 30th of October, 2024.

In Criminal Appeal (DB) No. 926 of 2024

Heard Mr. Jnanchandra Bhardwaj, learned counsel for the appellants, Mr. Amritesh Kumar, learned counsel for the informant and Mr. Syed Ashfaque Ahmad, learned A.P.P for the State.

2. This appeal has been filed on behalf of the appellants under Section 374(2) read with Section 389(1) of the Code of Criminal Procedure, 1973 against the judgment of conviction dated 28.02.2024 and the order of sentence dated 13.03.2024 rendered by the learned Additional Sessions Judge-I, Lakhisarai in Sessions Trial No. 78 of 2020, arising out of Barahiya P.S. Case No. 79 of 2020, whereby the appellants have been convicted for the offences punishable under Section 323, 341 and 325/34 of the Indian Penal Code and sentenced to undergo simple imprisonment for one year and fine of Rs. 1,000/- each for the offence punishable under Section 323/34 of the IPC and in default of payment of fine, the appellants shall have further to undergo simple imprisonment for two months. Further, they have to undergo simple imprisonment for one month and fine of Rs. 500/- for the offence punishable under Section 341/34 of the Indian Penal Code and, in default of payment of fine, they shall have further to undergo simple imprisonment for seven days. Further, they have to undergo rigorous imprisonment for four years and fine of Rs. 5,000/- each for the offence punishable under Section 325/34 of the Indian Penal Code read with Section 321(2) of the Cr.P.C. and, in default of payment of fine they shall have further to undergo simple imprisonment for six months.

3. The appeal has been admitted and, at present, learned counsel appearing for the appellants has prayed for bail and for suspension of sentence imposed by the learned Trial Court.

4. Learned counsel for the appellants, at the outset, submits that the appellants are in custody since last more than 1 year and 5 months. It is further submitted that the present appeal is of the year 2024 and the same is not likely to be heard in near future.

5. Learned counsel, at this stage, has referred the provisions contained in Section 389(3) of the Code of Criminal Procedure. It is submitted that as per the said provision, if the person has been convicted for bailable offences and if he is on bail and if the Trial Court sentenced him to suffer imprisonment for more than three years, even then Trial Court has to release such person on bail. However, in the present case, though the aforesaid provision was pointed out to the Trial Court, the same was not properly considered. Learned counsel, therefore, urged that the appellants be released on bail.

6. On the other hand, learned counsel for the informant and learned APP for the State have though opposed the request made by learned counsel for the appellants, they are not in a position to dispute the fact that the appellants are in custody since last more than 1 years and 5 months and the present appeal is of the year 2024.

7. We have considered the submissions canvassed by the learned counsels appearing for the parties. At this stage, we would like to refer the provisions contained in Section 389(3) of the Code of Criminal Procedure, which provides as under:—

“389(3). Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,—

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a 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 releas