IMPORTANT POINT
The court established that an accused who has not been required to execute bail bonds during trial cannot be denied suspension of sentence solely on that basis, provided they are not in custody and meet other conditions under Section 389(3) of the Cr.P.C.

ORDER :

Sunder Mohan, J.

[PRAYER: Criminal Miscellaneous Petition filed under Section 389(1) of the Criminal Procedure Code, seeking to suspend the sentence imposed on the petitioners in C.C.No.24 of 2016 passed by the learned Designated Court under Prevention of Money Laundering Act, 2002 / In the Court of Principal Special Judge for CBI Cases / VIII Additional City Civil Court, Chennai, by a judgment dated 11.01.2024 and enlarge the petitioners on bail, pending disposal of the criminal appeal.]

Though we had granted suspension of sentence to the petitioners/appellants on 05.02.2024, we intended to examine the reason assigned by the trial Court for declining the prayer for suspension of sentence, though the petitioners/appellants were convicted and sentenced to imprisonment of three years.

2. The trial Court had dismissed the applications for suspension of sentence on the ground that since the petitioners were not released on bail during trial, they would not be entitled to bail under Section 389 (3) of Cr.P.C. The order of the trial Court in the application filed by A1/1st petitioner herein reads as follows :

“Enforcement Directorate has taken notice. Heard. Fine amount paid. Petitioner/A1 is intended to prefer an appeal against Judgment of conviction in C.C.No.24/2016. Petitioner is never arrested either in the investigation or in the trial. Though he is convicted and sentenced to undergo for a period of three years for the offence under Section 4 read with 3 of Prevention of Money Laundering Act, 2002 (as amended) he was not released on bail during the trial. If the petitioner was already released on bail, he is entitled to get the bail under Section 389 (3) of Cr.P.C., but he was not released on bail. Hence, the petition for suspension of sentence deserves to be dismissed.”

3. The order states that the accused were not arrested during the investigation or during the trial. Admittedly, they had also not absconded during the trial. Section 389 (3) of the Cr.P.C., reads as follows :

“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 released on bail, be deemed to be suspended.”

4. The above provision uses the expression, 'being on bail' in sub clause 3(i) and 'is on bail', in sub clause 3(ii) and it also states that the Court shall if it is satisfied that the convicted person intends to file an appeal, release him on bail. There cannot be any doubt 'being on bail' means that the accused ought to have executed a bail bond with or without sureties. But the context in which, these expressions have been used in Section 389(3) Cr.P.C., has to be understood to appreciate the issue involved in this matter.

5. Section 88 of the Cr.P.C., empowers the Court to direct a person to whom, the Court is empowered to issue a summons or warrant, and is present in Court to execute a bond with or without sureties. Section 88 of the Cr.P.C. reads as follows :

“88. Power to take bond for appearance: When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial.”

6. The above provision is to ensure that the person who has not already executed the bail bond during the investigation can be asked to execute the b