The probability of the appeal being allowed is the most relevant factor for the exercise of power of suspending the sentence.

Appellants Bhola and Ram Singh have been convicted under Section 396, I.P.C. and sentenced to undergo imprisonment for life. Bhola has further been convicted under Section 412, I.P.C. and sentenced to ten years' rigorous imprisonment. They have applied for bail pending appeal.

2. Bail or jail ? That's the question. The argument is that till the appeal is finally decided by this court, the appellant be presumed to be innocent. Every citizen is presumed to be law-abiding and innocent. But when the court speaks of presumption of innocence of the accused, it only means to stress that the burden of proving guilt lies entirely on the prosecution and that strict proof must be given for holding that the accused is guilty. This is based on the principle that every citizen is entitled to live in liberty till he commits an offence; and nobody, including the State, should take away his liberty without establishing before a court of law that he had committed the offence and thus rendered himself disqualified for enjoying the liberties of a free citizen.

3. But the presumption comes under cloud as soon as accusation is made and incriminating material comes before the investigating officer. It is only because of this cloud that the law permits the arrest and consequential curtailment of personal liberty of the accused even before the guilt is established in a court of law. The cloud deepens and the matter oversteps the zone of presumption and enters the realm of evidence when the case goes to court and evidence starts. It then becomes a matter of evidence and is to be controlled by the rules contained in the Evidence Act. The lis has to be decided on the basis of evidence that might come in the case. The cloud gets removed and dispelled, when the court records a verdict of acquittal. The presumption of innocence, on the other hand, comes under an eclipse when the trial court on the basis of evidence, comes to the conclusion that the accused had committed the offence and convicts him. The strength of the presumption of innocence of an accused goes on decreasing with the development of the case from the stage of accusation to the stage of conviction by the trial court. This variance has a relevance on the exercise of a court's discretion in granting bail to an accused in appeal.

4. The power to suspend the execution of sentence and grant bail during appeal is given in Section 426, Cr.P.C. (which corresponds to Section 389 of the Code of Criminal Procedure, 1973). It provides :

"(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded 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." From the provisions or Section 426, it is evident that the pendency of the appeal by itself is not a ground for suspending the sentence. There has to be something beyond the mere pendency of the appeal to justify the suspension of the sentence. Section 426 makes it imperative that before the appellant is directed to be set at liberty reasons be recorded in writing for suspension of sentence. The reasons for suspending the sentence and granting bail, after the the conviction has been recorded by a court, have to be objective reasons which should normally emanate from the material on record.

5. The appellant in order to get bail has to make out a case for the exercise of the appellate court's discretion by showing that reasons exist for the suspension of the sentence. After the court is satisfied that such reasons exist, it would proceed to consider the question of granting bail to the appellant. Although practically the decision about suspension of sentence and granting bail will be simultaneous, it would involve two separate mental processes, one following the other. Each one has to be based on objective reasons.

6. Normally the grounds for suspending the execution of a sentence pending appe