An order suspending execution of sentence must be passed in conformity with sub-sec. (1) of S. 389 of the Code of Criminal Procedure, 1973, and must record reasons for passing such an order. The period of suspension of sentence cannot be excluded from the term of sentence.

G. B. PATTANAIK, J.

( 1 ) THOUGH this revision came up for admission and I was not inclined to admit this revision, yet the learned counsel for the petitioner insisted that a reasoned order may be passed and keeping in view the importance of the point urged, I think it appropriate to dispose of the revision by giving a reasoned order.

( 2 ) THE petitioner was convicted under S. 354, Indian Penal Code, and was sentenced to undergo rigorous imprisonment for nine months, by the learned Additional Sessions Judge, Bhawanipatna. On appeal, this Court has affirmed the conviction and recorded a finding that considering the gravity of the offence involving a young married girl, the sentence is lenient and dismissed the appeal by judgment dated 14th of August, 1986. Thereafter the petitioner filed an application before the Sessions Judge praying therein that in view of the order passed by this Court on 20-10-1981 while admitting the Criminal Appeal No. 212 of 1981, no warrant of arrest should be issued against the petitioner and he should not be taken into custody. The said application having been rejected by the learned Sessions Judge, the present revision has been preferred.

( 3 ) ON 20- 10-1981, the learned single Judge of this Court passed the following order :"heard learned counsel on behalf of the appellant. Admit. The execution of the sentence be stayed pending disposal of this appeal. The appellant be released on bail of Rs. 5,000/- with one surety for the like amount to the satisfaction of the learned Additional Sessions Judge, Bhawanipatna. A copy be handed over if applied for". The learned counsel appearing for the petitioner contends that the execution of the sentence having been suspended by this Court, the period for which such suspension continued, that is to say, till the disposal of the appeal, shall be taken to be the period of detention and, therefore, the petitioner cannot be re-arrested to serve the sentence in question. In support of his aforesaid contention, the learned counsel relied on the decision of this Court in the case of R. K. De v. State of Orissa, (1971) 37 Cut LT 402; the decision of the Supreme Court in the case of K. M. Nanavati v. State of Bombay (now Maharashtra), AIR 1961 SC 112 and the decision in the case of Karim Shaikh v. Emperor, AIR 1926 Nag 279. I shall deal with these decisions later, but the only provision of the Code of Criminal Procedure which is relevant for consideration is S. 389. Section 389 of the Code of Criminal Procedure (hereinafter referred to as the 'code') may be extracted hereunder : -"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. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. (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-sec. (1) ; and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for