ORDER :

Sanjay K. Agrawal, J.

1. This is extremely unfortunate case where though the appellants herein had been admitted to privilege of bail by order of this Court dated 29.04.2016 and were directed to furnish bail bonds with one solvent surety each for their release, but they could not furnish bail bonds on the ground of their poverty and being member of Scheduled Tribe community and are still in jail for more than six years despite bail have been granted by suspending their jail sentence and now in shape of IA No.03 an application has been filed seeking modification of the aforesaid order dated 29.04.2016, permitting them to be released on personal bond(s).

2. Mr. Ravindra Sharma, learned counsel for the appellants submits that the family members of the appellants are not in contact with the appellants and, therefore, they have preferred the instant appeal through legal aid. They are poor villagers and belong to Scheduled Tribe community and are continuously incarcerated in jail since 11.08.2013, thus, they are unable to comply with the conditions stipulated by this Court in the order dated 29.04.2016 while granting bail to them and, because of which, they could not be released on bail. This fact has also been brought to the notice of the Secretary, High Court Legal Aid Services Committee by the jail authorities vide its letter dated 13.04.2022. He relied on an order passed by this Court in the case of Pardeshi @ Ratiram @ Raturam and others vs. State of Chhattisgarh, [CRA No.1239 of 2019, dated 29.03.2022] wherein this Court relying on the judgments of Supreme Court in the cases of Moti Ram and others vs. State of M.P., (1978) 4 SCC 47 and Hussainara Khatoon and others (I) vs. Home Secretary, State of Bihar, (1980) 1 SCC 81 directed the appellants therein to be released on bail on their executing only personal bond and exempted other conditions stipulated earlier while granting bail to the appellants therein. Hence, praying similar direction modification in the order dated 29.04.2016 is prayed for.

3. Learned State counsel submits that appropriate order in this regard be passed.

4. We have heard learned counsels for the parties, considered their rival submissions made hereinabove and also went through the record with utmost circumspection.

5. The question which arose for consideration before us is whether the appellants can be released on bail on their executing only personal bond without insisting them to furnish bail bonds alongwith sureties.

6. In order to decide the plea, it would be appropriate to notice Section 389(1) of CrPC by which sentence awarded to an accused person convicted for an offence can be suspended in pending appeal and he can be released on bail, which states as under :

“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 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 on his own bond.”

7. A careful perusal of the provisions contained in Section 389(1) of CrPC would show that the Legislature has consciously empowered the Appellate Court to suspend the substantive jail sentence of a convicted person, for the reasons to be recorded in the order, pending final disposal of the criminal appeal filed by him, and if he is in confinement, he be released on bail or on his own bond as, such, it is absolutely discretionary in nature and it is for the Appellate Court to decide as to whether an accused can be released on bail or on his own bond by suspending his substantive jail sentence.

8. The Supreme Court in the case of Moti Ram (supra) considered the issue whether the Appellate Court is empowered to enlarge convicted accused on his own bond without sureties and in Para-3 of the judgment their Lordships framed three questions, out of which we are concerned here only with Questions No