OMPRAKASH SAHNIversusJAI SHANKAR CHAUDHARY & ANR. ETC.

                          [2023] 5 S.C.R. 141                               141


                       OMPRAKASH SAHNI                                      A
                                   v.
           JAI SHANKAR CHAUDHARY & ANR. ETC.
              (Criminal Appeal Nos. 1331-1332 of 2023)
                            MAY 02, 2023                                    B
           [M. R. SHAH AND J. B. PARDIWALA, JJ.]
       Code of Criminal Procedure, 1973 – s. 389 – The three
respondents were convicted for the murder of the appellant’s brother
by the Trial Court and sentenced to life imprisonment – The order           C
of conviction and sentence passed by Trial Court was challenged
in appeal by the respondents before the High Court – Respondents
prayed before the High Court that they be released on bail pending
the final disposal of their appeals by suspending the substantive
order of sentence of life imprisonment – High Court suspended
                                                                            D
sentence and ordered their release on bail – On appeal, held: The
endeavour on the part of the Court should be to see as to whether
the case presented by the prosecution and accepted by the Trial
Court can be said to be a case in which, ultimately the convict stands
for fair chances of acquittal – While undertaking the exercise to
ascertain whether the convict has fair chances of acquittal, what is        E
to be looked into is something palpable – Something which is very
apparent or gross on the face of the record, on the basis of which,
the Court can arrive at a prima facie satisfaction that the conviction
may not be sustainable – The Appellate Court should not reappreciate
the evidence at the stage of s.389 and try to pick up few lacunas or        F
loopholes here or there in the case of the prosecution, it is not correct
approach – In the instant case, High Court has gone into the issues
like political rivalry, delay in lodging the FIR, some over-writings
in the First Information Report etc. – All these aspects, will have to
be looked into at the time of the final hearing of the appeals filed        G
by the convicts – High Court committed a serious error in suspending
the substantive order of sentence of the convicts and their release
on bail pending the final disposal of their criminal appeals – Order
of High Court set aside – Convicts ordered to surrender.
                                                                            H
                                  141
142            SUPREME COURT REPORTS                      [2023] 5 S.C.R.


A           Allowing the appeals, the Court
            HELD:1. In Vijay Kumar, it was held that in considering
      the prayer for bail in a case involving a serious offence like murder
      punishable under Section 302 of the IPC, the court should
      consider the relevant factors like the nature of accusation made
B     against the accused, the manner in which the crime is alleged to
      have been committed, the gravity of the offence, and the
      desirability of releasing the accused on bail after they have been
      convicted for committing the serious offence of murder. [Para
      31][162-G]
C           2. The endeavour on the part of the Court, therefore, should
      be to see as to whether the case presented by the prosecution
      and accepted by the Trial Court can be said to be a case in which,
      ultimately the convict stands for fair chances of acquittal. If the
      answer to the above said question is to be in the affirmative, as a
      necessary corollary, if ultimately the convict appears to be entitled
D     to have an acquittal at the hands of this Court, he should not be
      kept behind the bars for a pretty long time till the conclusion of
      the appeal, which usually take very long for decision and disposal.
      However, while undertaking the exercise to ascertain whether
      the convict has fair chances of acquittal, what is to be looked into
E     is something palpable. To put it in other words, something which
      is very apparent or gross on the face of the record, on the basis
      of which, the Court can arrive at a prima facie satisfaction that
      the conviction may not be sustainable. The Appellate Court should
      not reappreciate the evidence at the stage of Section 389 of the
      CrPC and try to pick up few lacunas or loopholes here or there in
F     the case of the prosecution. Such would not be a correct approach.
      [Para 33][163-B-D]
            3. In the case on hand, what the High Court has done is
      something impermissible. High Court has gone into the issues
      like political rivalry, delay in lodging the FIR, some over-writings
G     in the First Information Report etc. All these aspects, will have
      to be looked into at the time of the final hearing of the appeals
      filed by the convicts. Upon cursory scanning of the evidence on
      record, this court is unable to agree with the contentions coming
      from the Senior Counsel for the convicts that, either there is
H
   OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &                          143
                    ANR. ETC.

absolutely no case against the convicts or that the evidence           A
against them is so weak and feeble in nature, that, ultimately in
all probabilities the proceedings would terminate in their favour.
For the very same reason this court was unable to accept the
contention coming from the convicts through their Senior Counsel
that, it would be meaningless, improper and unjust to keep them
                                                                       B
behind the bars for a pretty long time till they are found not to be
guilty of the charges. [Para 34][163-E-G]
      4. In the overall view of the matter, this Court is convinced
that the High Court committed a serious error in suspending the
substantive order of sentence of the convicts and their release
on bail pending the final disposal of their criminal appeals. [Para    C
35][163-H]
      Rajesh Ranjan Yadav Alias Pappu Yadav v. CBI (2007)
      1 SCC 70 : [2006] 9 Suppl. SCR 40; Ash Mohammad
      v. Shiv Raj Singh Alias Lalla Babu and Another (2012)
      9 SCC 446 : [2012] 7 SCR 584; Bhagwan Rama Shinde                D
      Gosai and Others v. State of Gujarat (1999) 4 SCC
      421 : [1999] 3 SCR 545; Sidhartha Vashisht Alias Manu
      Sharma v. State (NCT of Delhi) (2008) 5 SCC 230 :
      [2008] 8 SCR 220; Atul Tripathi v. State of Uttar
      Pradesh and Others (2014) 9 SCC 177 : [2014] 14                  E
      SCR 1188 – relied on.
      Kishori Lal v. Rupa and Others (2004) 7 SCC 638 :
      [2004] 4 Suppl. SCR 628; Vijay Kumar v. Narendra
      and Others (2002) 9 SCC 364; Ramji Prasad v. Rattan
      Kumar Jaiswal and Another (2002) 9 SCC 366; Vasant               F
      Tukaram Pawar v. State of Maharashtra (2005) 5 SCC
      281 : [2005] 3 SCR 630; Gomti v. Thakurdas and Others
      (2007) 11 SCC 160 : [2007] 5 SCR 90 – referred to.
                      Case Law Reference
[2006] 9 Suppl. SCR 40        relied on               Para 25          G
[2012] 7 SCR 584              relied on               Para 26
[1999] 3 SCR 545              relied on               Para 27
[2008] 8 SCR 220              relied on               Para 28
                                                                       H
144             SUPREME COURT REPORTS                            [2023] 5 S.C.R.


A     [2014] 14 SCR 1188                 relied on                  Para 29
      [2004] 4 Suppl. SCR 628            referred to                Para 30
      [2005] 3 SCR 630                   referred to                Para 32
      [2007] 5 SCR 90                    referred to                Para 32
B           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      Nos. 1331-1332 of 2023.
            From the Judgment and Order dated 16.09.2022 of the High Court
      of Judicature at Patna in CRADB Nos. 322 and 411 of 2021.
            R. Chandrachud, Ms. Fauzia Shakil, Agastya Sen, Advs. for the
C
      Appellant.
           V. K. Shukla, Sr. Adv., Rakesh Kumar, Shailendra Mani Tripathi,
      Chand Qureshi, C. Thangaraja, S. Krishnamoorthy, K. Kumaravadivel,
      Manish Kumar, Advs. for the Respondents.
D            The Judgment of the Court was delivered by
             J. B. PARDIWALA, J.
              1. These appeals are at the instance of the original first informant
      (brother of the deceased) and are directed against a common order
E     passed by the High Court of Judicature at Patna in Criminal Appeal
      (DB) No. 322 of 2021 and Criminal Appeal (DB) No.411 of 2021
      respectively by which, the High Court suspended the substantive order
      of sentence of life imprisonment imposed by the Trial Court on the
      respondent Nos. 1, 3 and 4respectively herein (convicts) and ordered
      their release on bail pending the final disposal of the two criminal appeals
F     referred to above.
             FACTUAL MATRIX
              2. It appears from the materials on record that the respondents
      Nos. 1, 3 and 4 respectively herein alongwith six other co-accused were
      put to trial in the Court of Additional Sessions Judge-VII, Vaishali, Hajipur,
G
      District: Vaishali at Hajipur (Bihar) in Sessions Trial No. 280/2019 for
      the offences punishable under Sections 302, 120-B, 506 respectively
      read with Section34 of the Indian Penal Code, 1860 (for short, ‘the IPC’)
      and Section 27 of the Arms Act, 1959 (for short, ‘the 1959 Act’)
           3. The three respondents herein, namely, Jai Shankar Chaudhary,
H     Abhay Kumar and Ram Babu respectively were held guilty by the Trial
   OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &                             145
          ANR. ETC. [J. B. PARDIWALA, J.]

Court, of the offence of murder of the brother of the appellant herein,   A
namely, Manish Kumar. The other co-accused were ordered to be
acquitted.
      4. The respondents Nos. 1, 3 and 4 respectively herein went in
appeal before the High Court of Judicature at Patna, challenging the
order of conviction and sentence passed by the Trial Court.               B
     5. The case of the prosecution narrated by the Trial Court in its
judgment dated 12.03.2021 is as under:
      “The F.I.R in the instant case had been registered on
      14.08.2018, on the basis of written application of informant
      Om Prakash Sahni, alleging therein that the informant Om            C
      Prakash Sahni on 13-08-2018 at about 01:00 P.M. alongwith
      his younger brother Manish Kumar, the Block Pramukh,
      Jandaha reached the Office of Block Pramukh, situated at
      block Jandaha by their alto car. Informant’s brother went in
      his chamber. The driver of the B.D.O. came in his car and           D
      told thePramukh that B.D.O. has called him and on such
      information the Block Pramukh Manish Kumar went to the
      residence of B.D.O. in the B.D.O’s car. After sometime the
      Pramukh came back in the same vehicle and as he was
      heading towards his chamber at about 03:00 P.M., the
      accused Jai Shankar Chaudhary and Abhay Kumar came and              E
      opened fire on informant’s brother,the Block Pramukh upon
      the exhortation by accused Ram Babu Sahni to kill him. The
      informant’s brother fell on the ground and both the accused
      waving their pistols, fled away on a motorcycle towards
      Mahua road. The other two accused Ram Babu Sahni and                F
      Binod Chaudhary also fled away from the place of occurrence
      on one another motorcycle, towards the same direction. The
      F.I.R. further states that the informant and the Pramukh’s
      driver namely Anil Kumar alongwith certain others were
      present at the time of occurrence. They took him to the clinic
      of doctor Bindu Jha and on his reference, they took the injured     G
      to the Ganpati Hospital, Hajipur, where he was declared dead.
      Thereafter they took the deceased to Hajipur Sadar Hospital,
      where the postmortem examination was carried out and the
      police also reached there and carried out further proceeding.
      The F.I.R. also states that the election of block pramukh was       H
146            SUPREME COURT REPORTS                           [2023] 5 S.C.R.


A           held on 02-08-2018 and the Pramukh won the election. The
            informant in the F.I.R. also states that Umesh Singh Kushwaha,
            M.L.A., Mahnar, Binod Chaudhary s/o Ram Lakhan
            Chaudhary, Ajeet Kumar s/o Ram Babu Sahni Village Dulaur
            P.S. Jandaha, Kundan Sahni (Prakhand Shikshak) s/o Ram
            Nandan Sahni Vill Narharpur, Randhir Kumar S/o Late
B
            Masudan Prasad Singh Vill Narharpur, Ranjeet Kumar S/o
            Ram Briksh Singh Viii Narharpur, all from P.S. Jandaha and
            Ajay Thakur (Teacher) Sankul Sadhan Sevi, Jandaha Vill Nari
            Khurd P.S. Patepur Dist Vaishali had earlier threatened the
            informant at Bindi Chowk Road (north from Suresh Chowk)
C           that they would not allow informant’s brother to win the
            election and in the event, he wins, they would not let him live.
            The informant also states that these persons threatened him
            many times and he informed his brother of such fact. The
            present Prakhand Siksha Padadhikri, Jandaha also
            threatened that he should communicate to the Pramukh for
D
            not getting involved in the recruitment of Prakhand Shikshak,
            otherwise he may face dire consequences. The informant is
            under the belief that all the abovereferred persons in
            conspiracy, have committed the murder of informant’s brother
            Manish Kumar.”
E           6. In the course of the trial, the prosecution examined ten witnesses
      as under:
            P.W. 1 Raj Kumar Sahni,
            P.W. 2 Anil Kumar Sahni,
F           P.W 3 Rup Kala Devi,
            P.W. 4 Dr. Shashidhar Kumar,
            P.W. 5 Lal Babu Sahni,
            P.W. 6 Laldeo Sahni,
G           P. W. 7 Om Prakash Sahni/ informant,
            P. W. 8 Saroj Kumar Singh,
            P.W. 9 Shobhakant Paswan (Investigating Officer) and
            P.W. 10 Sunil Kumar Singh (Investigating Officer).
H
   OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &                             147
          ANR. ETC. [J. B. PARDIWALA, J.]

      7. The Trial Court, upon evaluation of the oral as well as          A
documentary evidence on record, in the final analysis observed in paras
40 and 41 respectively as under:
      “40. On considering the submissions made by learned counsel
      of parties and the conjoint perusal of prosecution evidence
      including the cross-examination done by learned counsels for        B
      defence this court finds that the prosecution has led credible
      evidence that on 13-08-2018, at about 03:00 PM at Jandaha
      block, the accused Ram Babu Sahni and Binod Chaudhary
      exhorted Jai Shankar Chaudhary and Abhay Kumar Sahni
      to kill Manish Sahni. On such provocation, Jai Shankar
      Chaudhary and Abhay Kumar Sahni shot the bullet over                C
      Manish Sahni. He was then taken to doctor Bindu Jha in
      Jandaha and was referred from there to Hajipur. He was taken
      to Hajipur Ganpati Hospital by an ambulance, where the
      doctor declared him dead. As per the evidence of PW-7/
      informant, the Manish Sahni alongwith him and the driver            D
      P.W. 2 reached the block Jandaha at about 01:00 P.M., they
      were sitting in his chamber, when the B.D.O. called him through
      his driver and he went to meet the B.D.O. to his resident from
      the B.D.O’s vehicle. When he arrived back at about 03:00
      P.M., as he was heading towards his chamber, the accused
      Ram Babu Sahni and Binod Chaudhary exhorted Jai Shankar             E
      Chaudhary and Abhay Kumar Sahni to kill Manish Sahni.
      On such provocation, Jai Shankar Chaudhary and Abhay
      Kumar Sahni shot the bullet over Manish Sahni and he fell
      on the ground. All the four accused fled away from northern
      gate towards Mahua road. Manish Sahni was then taken to             F
      doctor Bindu Jha in Jandaha and was referred from there to
      Hajipur. He was taken to Hajipur Ganpati Hospital by an
      ambulance, where the doctor declared him dead. His autopsy
      was performed at Sadar Hospital, Hajipur. The reason behind
      the occurrence in question is that the accused Jai Shankar
      Chaudhary was earlier elected the block Pramukh, but was            G
      defeated by Manish Sahni in no confidence motion. The
      Manish Sahni then became Block Pramukh. All the accused
      persons are said to conspire for commission of the alleged
      offence. The P.W. 1 Raj Kumar Sahni in his evidence has
      proved that the Pramukh Manish Sahni came from B.D.O’s              H
148     SUPREME COURT REPORTS                       [2023] 5 S.C.R.


A     vehicle and was heading towards his chamber, when accused
      Jai Shankar alongwith another opened fire over Manish
      Sahni. He has stated that it was Jai Shankar, who shot Manish
      Sahni. P.W. 2, the driver of Block Pramukh namely Anil Kumar
      Sahni also proved that Manish Sahni arrived from B.D.O’s
      vehicle. The accused Jai Shankar Chaudhary and Abhay
B
      Kumar Sahni were already present there. The other accused
      Ram Babu Sahni and Binod Chaudhary reached there and
      said “kya dekhte ho goli maaro”. Jai Shankar Chaudhary
      shot the bullet and thereafter Abhay Kumar shot the other
      bullet. The Pramukh fell on the ground and the informant
C     and the witness P.W.2 are said to take him to hospital at
      Jandaha, from where he was referred to Hajipur Sadar
      Hospital, but he died on the way. P.W. 3 the wife of deceased
      is not an eye witness. However, she has testified the death of
      her husband by accused persons in the manner as stated by
      witnesses. In addition to these facts, she has also stated that
D
      when her husband won the election, he was given threat for
      life and she had advised her husband to remain alert. P.W. 5
      in his statement-in-chief has proved the date and time of
      occurrence i.e., 13-08-2018 at 03:00 P.M. He, an eye witness
      also testifies the prosecution story that the accused Jai
E     Shankar Chaudhary and Abhay Kumar opened fire over
      Manish Sahni on the provocation and exhortation by Ram
      Babu Sahni and Binod Chaudhary. P.W. 6 in his statement-
      in-chief also proves the date 13-08-2018 and time 03:00 P.M.
      of the alleged occurrence. He claims to be an eye witness of
      the occurrence and testifies that Binod Chaudhary and Ram
F
      Babu came by a bike and exhorted Jai Shankar Chaudhary
      and another person, whom he did not identify. On such
      exhortation and provocation, Jai Shankar Chaudhary and
      the other one opened fire over Manish Sahni. P.W. 8 Saroj
      Kumar Singh also claims to be an eye witness and testifies
G     the fact that on the instigation of Binod Chaudhary, the
      accused Jai Shankar Chaudhary opened fire over Manish
      Sahni and he does not identify the other person, who also
      shot bullet over Manish Sahni. However, the date of
      occurrence has been contradicted by PW-8 to be 30.08.2018.
      The accused Binod Chaudhary whose name reflects in the
H
   OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &                               149
          ANR. ETC. [J. B. PARDIWALA, J.]

      evidence repeatedly is not facing the instant trial before court.     A
      The doctor has proved the postmortem report and the injuries
      thereon are the two entry wounds, one each over left upper
      chest and over epigastrium alongwith two exit wounds, one
      each on right sub costal region impugned posterior axillary
      line and the other over right lumbar region in posterior axillary
                                                                            B
      line. The two investigating officers who carried out the
      investigation, have proved genuineness of the investigation
      process as has been discussed in the preceding paragraphs.
      The defence could not bring such material or contradictions
      or any other evidence on record to falsify the facts placed
      and proved by prosecution.                                            C
      41. Hence, on the basis of material and the evidence both
      oral and documentary, as available on record, this court
      arrives at conclusion that the prosecution has proved its case
      against accused Jai Shankar Chaudhary, Abhay Kumar alias
      Abhay Sahni and Ram Babu Sahni, beyond reasonable doubts              D
      that on exhortation of Ram Babu Sahni, the other two accused
      Jai Shankar Chaudhary and Abhay Kumar @ Abhay Sahni
      opened fire over Manish Sahni, causing his death and thereby
      committing his murder. This court finds them guilty of
      committing the murder of Manish Sahni in furtherance of their
      common intention.”                                                    E

      8. The three convicts before us i.e., the respondents Nos. 1, 3 and
4 respectively prayed before the High Court that they be released on
bail pending the final disposal of their appeals by suspending the
substantive order of sentence of life imprisonment.
                                                                            F
       9. The High Court suspended the substantive order of sentence
of all the three convicts and ordered their release on bail vide the
impugned order dated 16.09.2022. The High Court observed thus:
      “By the impugned judgment and order of conviction dated
      12.03.2021 and order of sentence dated 15.03.2021 passed              G
      by the learned Additional Sessions Judge-VII, Vaishali at
      Hajipur, in Sessions Trial No. 280/2019 arising out of
      Jandaha P.S. Case No. 202/2018, the appellant has been
      convicted and sentenced as under:

                                                                            H
150     SUPREME COURT REPORTS                       [2023] 5 S.C.R.


A




B




C




D
      75 per cent of the fine amount has been ordered to be paid to
      the widow of deceased Manish Sahni, namely, Rup Kala Devi
      and 25 per cent of the amount has been ordered to be paid to
      the State of Bihar.
            In compliance of this Court’s order dated 03.08.2022,
E
      the State has filed a written objection in terms of the first
      proviso to Section 389(1) of the Criminal Procedure Code.
            We have heard Mr. Vasant Vikas, learned counsel
      appearing on behalf of the appellant in Criminal Appeal (DB)
      No. 322 of 2021; Mr. Sanjay Singh, learned Senior Counsel
F
      appearing on behalf of the appellant in Criminal Appeal (DB)
      No. 411 of 2021 and learned Additional Public Prosecutor
      for the State.
            Learned counsel appearing on behalf of the appellants
      have submitted that for the occurrence said to have taken
G     place at 03:00 pm, at a public place, on 13.08.2018, the First
      Information Report came to be registered on 14.08.2018, based
      on written report of the informant (P.W.-7) submitted at 01:00
      pm. The informant has claimed to be an eye-witness of the
      occurrence. However, there is no explanation for the late
H     submission of the written report, naming these appellants as
OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &                           151
       ANR. ETC. [J. B. PARDIWALA, J.]

  the assailants. It has been argued that it is evident from the     A
  First Information Report that political rivalry between the
  deceased and these appellants has been disclosed as the
  reason why the deceased was killed by these appellants. They
  accordingly submit that disclosure of names of these appellants
  in the First Information Report, as the main assailants, is an
                                                                     B
  afterthought and in that background, the late registration of
  First Information Report casts a serious doubt on the veracity
  of the prosecution’s case. It has, further, been argued that
  though (P.W.-7), the informant, has claimed to be an eye-
  witness to the occurrence, who had carried the deceased in
  the injured condition to a nearby hospital and thereafter to       C
  Sadar hospital, after the deceased was declared dead in a
  private hospital; his own deposition contradicts this version
  as asserted in the First Information Report inasmuch as in
  response to a question during the course of cross-examination,
  he admitted that he had not gone to the Sadar hospital with
                                                                     D
  the deceased. It has further been argued that though the
  appellants were produced during the course of the trial
  through video conference from the jail, but there is no evidence
  that the prosecution’s witnesses identified these appellants
  during the course of the trial.
        Learned Additional Public Prosecutor opposing                E
  appellants’ prayer for bail has submitted that since the
  appellants are the main assailants, as disclosed in the First
  Information Report, which has been substantiated by all the
  eye-witnesses during the course of the trial, who have been
  consistent in their depositions and political rivalry between      F
  the deceased and these appellants, being an admitted fact,
  such animosity adds credence to the deposition of the eye-
  witnesses.
         We have perused the impugned judgment and order of
  the trial court. We have given our anxious consideration to        G
  rival submissions advanced on behalf of the parties. We have
  perused the original copy of the First Information Report
  available with the lower court records from which it is manifest
  that there have been over-writings as regards the date when
  the said written report of the informant (P.W.-7) was submitted
  in the police station.                                             H
152      SUPREME COURT REPORTS                         [2023] 5 S.C.R.


A           It is the prosecution’s case, as disclosed in the First
      Information Report as also set up at the trial, that the
      occurrence had taken place at 03:00 pm on 13.08.2018 in
      the Block office. The deceased was Pramukh of the said block.
             It has been asserted in the First Information Report that
B     when the informant and the deceased were about to enter
      into his (deceased’s) chamber in the Block office, appellant
      Jai Shankar Chaudhary and Abhay Kumar opened fire on
      the instigation of accused Ram Babu Sahani. The informant
      and others are said to have taken the deceased, in injured
      condition, to a private hospital, where he was declared dead.
C     The dead body of the deceased was thereafter taken to Sadar
      hospital, where the inquest report was prepared by the police
      officer and post-mortem was also carried out on the same
      date, i.e., 13.08.2018. In the aforesaid background, we find
      substance in the submission made on behalf of the appellants
D     that there was no cogent explanation for the informant to
      have filed his written statement on the next day at 01 :00 pm,
      implicating these appellants as the main assailants. Further,
      the informant (P.W.-7) does not prima facie appear to be
      truthful, particularly in view of the evidence of the prosecution
      witnesses to the effect that the body of the deceased was taken
E     by villagers to the hospital and not by the informant.
             In the abovementioned peculiar facts and circumstances
      of the case, in our view, inordinate delay in filing of the written
      report leading to registration of First Information Report
      appears to be a valid ground for doubting the case of the
F     prosecution, for the purpose of exercise of discretion under
      Article 389(1) of the Criminal Procedure Code.
            Considering the facts and circumstances as noted above,
      the prayer made on behalf of the appellants for their release
      on bail is allowed.
G
            Let the appellants, namely, Jai Shankar Chaudhary [In
      Criminal Appeal (DB) No. 322 of 2021], Abhay Kumar @
      Abhay Sahni and Ram Babu Sahni [In Criminal Appeal (DB)
      No. 411 of 2021] be released on bail during the pendency of
      appeal on furnishing bail bond of Rs. 10,000/- (Ten Thousand)
H     with two sureties of the like amount each to the satisfaction
   OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &                                153
          ANR. ETC. [J. B. PARDIWALA, J.]

      of learned Additional Sessions Judge-VII, Vaishali at Hajipur,         A
      in Sessions Trial No. 280 of 2019 arising out of Jandaha P.S.
      Case No. 202of2018.
            The sentence shall remain suspended in the meanwhile.
      Realisation of fine shall also remain stayed.”
                                                    (Emphasis supplied)      B

      10. The original first informant (brother of the deceased) being
aggrieved and dissatisfied with the aforesaid order passed by the High
Court has come up in appeals before us.
      SUBMISSIONS ON BEHALF OF THE APPELLANT                                 C
       11. Mr. R. Chandrachud, the learned counsel appearing for the
appellant vehemently submitted that the High Court committed a serious
error in passing the impugned order thereby releasing the three convicts
on bail pending final disposal of their respective appeals by suspending
the substantive order of their sentence,in exercise of power under Section   D
389 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’).
       12. The learned counsel would submit that once the accused stood
convicted for a very serious offence like murder, the presumption of
innocence would no longer exist and the High Court is expected to be
very slow in granting bail. He submitted that the High Court while
                                                                             E
considering the plea of the three convicts for suspension of substantive
order of sentence has virtually appreciated the evidence. The High Court
could not have gone into the issues like over-writings in the First
Information Report, inordinate delay in lodging the First Information
Report etc. while considering the plea of the convicts for suspension of
sentence of life imprisonment.                                               F
      13. The learned counsel would submit that the entire case of the
prosecution is based on ocular evidence. The Trial Court having believed
and accepted the version of the appellant herein, who is one of the
eyewitnesses to the incident, the High Court could not have so lightly
and casually suspended the substantive order of sentence of life             G
imprisonment.
      14. In such circumstances referred to above, the learned counsel
appearing for the appellant prayed that there being merit in his appeals,
those may be allowed and the impugned common order passed by the
High Court may be set aside.                                                 H
154            SUPREME COURT REPORTS                           [2023] 5 S.C.R.


A           SUBMISSIONS ON BEHALF OF THE RESPONDENT
            NOS. 1, 3 AND 4 RESPECTIVELY (CONVICTS)
            15. Mr. V.K. Shukla, the learned Senior Counsel appearing for
      the convicts, on the other hand, vehemently opposed the appeals,
      submitting that no error not to speak of any error of law could be said to
B     have been committed by the High Court in passing the impugned order
      suspending the substantive order of sentence, imposed on the respective
      convicts by the Trial Court. He would submit that the entire case put up
      by the prosecution is highly doubtful and politically motivated. The
      prosecution has suppressed the true origin of the occurrence. He would
      submit that his clients have been falsely implicated in the alleged crime.
C
            16. The learned Senior Counsel further submitted that this Court
      should be slow in exercise of its power under Article 136 of the
      Constitution while looking into a discretionary order, passed by the High
      Court under Section 389 of the CrPC. The impugned order passed by
      the High Court cannot be termed as absolutely vague or perverse and, in
D     such circumstances, this Court may not disturb the impugned order.
             17. In the last, the learned Senior Counsel submitted that it will
      take years by the time, the appeals come up for final hearing and for all
      that period of time his clients would be languishing in jail. He would
      submit that there are very fair chances of his clients getting acquitted in
E     the criminal appeals and in such circumstances, there is nothing wrong if
      they are allowed to remain on bail, pending the final disposal of their
      respective criminal appeals.
            18. In such circumstances referred to above, the learned Senior
      Counsel prayed that there being no merit in the appeals, those may be
F     dismissed.
            ANALYSIS
             19. Having heard the learned counsel appearing for the parties
      and having gone through the materials on record, the only question that
      falls for our consideration is whether the High Court committed any
G
      error in passing the impugned order?
            SECTION 389 OF THE CRPC AND THE LAW ON THE
            SUSPENSION OF SENTENCE:
            20. Section 389 of the CrPC reads thus:
H
OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &                           155
       ANR. ETC. [J. B. PARDIWALA, J.]

  “389. Suspension of sentence pending the appeal; release of        A
  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.
                                                                     B
         Provided that the Appellate Court shall, before releasing
  on bail or on his own bond a convicted person who is
  convicted of an offence punishable with death or imprisonment
  for life or imprisonment for a term of not less than ten years,
  shall give opportunity to the Public Prosecutor for showing
  cause in writing against such release:                             C

         Provided further that in cases where a convicted person
  is released on bail it shall be open to the Public Prosecutor to
  file an application for the cancellation of the bail.
        (2) The power conferred by this section on an Appellate      D
  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,        E
  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,                    F
         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      G
  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 which he is so sentenced.”                            H
156             SUPREME COURT REPORTS                           [2023] 5 S.C.R.


A            21. Suspension conveys postponement or temporarily preventing
      a state of affairs from continuing. According to the Black’s Law
      Dictionary (Seventh Edition), the word ‘suspend’ means, inter alia, to
      interrupt; postpone; defer. The Black’s Law Dictionary (Seventh Edition)
      describes the word ‘suspension’ to mean, inter alia, an act of temporarily
      delaying, interrupting or terminating something. Attributing the same
B
      meaning to the word ‘suspend’ as pointed out above, the New Oxford
      Dictionary of English (1998 Edition) describes suspend as temporarily
      preventing from continuing or being enforced or given effect or defer or
      delay an action, event or judgment.
            22. Thus, when we speak of suspension of sentence after
C     conviction, the idea is to defer or postpone the execution of the sentence.
      The purpose of postponement of sentence cannot be achieved by detaining
      the convict in jail; hence, as a natural consequence of postponement of
      execution, the convict may be enlarged on bail till further orders.
              23. The principle underlying the theory of criminal jurisprudence
D     in our country is that an accused is presumed to be innocent till he is held
      guilty by a court of the competent jurisdiction. Once the accused is held
      guilty, the presumption of innocence gets erased. In the same manner, if
      the accused is acquitted, then the presumption of innocence gets further
      fortified.
E            24. From perusal of Section 389 of the CrPC, it is evident that
      save and except the matter falling under the category of sub-section 3
      neither any specific principle of law is laid down nor any criteria has
      been fixed for consideration of the prayer of the convict and further,
      having a judgment of conviction erasing the presumption leaning in favour
F     of the accused regarding innocence till contrary recorded by the court
      of the competent jurisdiction, and in the aforesaid background, there
      happens to be a fine distinction between the prayer for bail at the pre-
      conviction as well as the post-conviction stage, viz Sections 437, 438,
      439 and 389(1) of the CrPC.

G            25. In Rajesh Ranjan Yadav alias Pappu Yadav v. CBI, reported
      in (2007)1 SCC 70, it has been held under paras 8, 9 and 10 respectively,
      which are as follows:
            “8. Learned counsel for the appellant then relied on the
            decision of this Court in Kashmira Singh v. State of
            Punjab [(1977) 4 SCC 291 : 1977 SCC (Cri) 559] . In para 2
H
OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &                            157
       ANR. ETC. [J. B. PARDIWALA, J.]

  of the said decision it was observed as under : (SCC pp. 292-       A
  93)
     “It would indeed be a travesty of justice to keep a person
     in jail for a period of five or six years for an offence which
     is ultimately found not to have been committed by him. Can
     the Court ever compensate him for his incarceration which        B
     is found to be unjustified? Would it be just at all for the
     Court to tell a person:‘We have admitted your appeal
     because we think you have a prima facie case, but
     unfortunately we have no time to hear your appeal for
     quite a few years and, therefore, until we hear your appeal,
     you must remain in jail, even though you may be                  C
     innocent?’What confidence would such administration of
     justice inspire in the mind of the public? It may quite
     conceivably happen, and it has in fact happened in a few
     cases in this Court, that a person may serve out his full
     term of imprisonment before his appeal is taken up for           D
     hearing. Would a Judge not be overwhelmed with a feeling
     of contrition while acquitting such a person after hearing
     the appeal? Would it not be an affront to his sense of
     justice? Of what avail would the acquittal be to such a
     person who has already served out his term of
     imprisonment or at any rate a major part of it? It is,           E
     therefore, absolutely essential that the practice which this
     Court has been following in the past must be reconsidered
     and so long as this Court is not in a position to hear the
     appeal of an accused within a reasonable period of time,
     the Court should ordinarily, unless there are cogent grounds     F
     for acting otherwise, release the accused on bail in cases
     where special leave has been granted to the accused to
     appeal against his conviction and sentence.”
  9. Learned counsel for the appellant then relied on the
  decision of this Court in Bhagirathsinh v. State of                 G
  Gujarat [(1984) 1 SCC 284 : 1984 SCC (Cri) 63] , Shaheen
  Welfare Assn. v. Union of India [(1996) 2 SCC 616 : 1996
  SCC (Cri) 366] , Joginder Kumar v. State of U.P. [(1994) 4
  SCC 260 : 1994 SCC (Cri) 1172] , etc.

                                                                      H
158            SUPREME COURT REPORTS                          [2023] 5 S.C.R.


A           10. In our opinion none of the aforesaid decisions can be
            said to have laid down any absolute and unconditional rule
            about when bail should be granted by the Court and when it
            should not. It all depends on the facts and circumstances of
            each case and it cannot be said there is any absolute rule
            that because a long period of imprisonment has expired bail
B
            must necessarily be granted.”
                                                         (Emphasis supplied)
            26. This Court, in the case of Ash Mohammad v. Shiv Raj Singh
      alias Lalla Babu and Another, reported in (2012)9 SCC 446, has
C     observed in para 30, as follows:
            “30. We may usefully state that when the citizens are scared
            to lead a peaceful life and this kind of offences usher in an
            impediment in establishment of orderly society, the duty of
            the court becomes more pronounced and the burden is heavy.
D           There should have been proper analysis of the criminal
            antecedents. Needless to say, imposition of conditions is
            subsequent to the order admitting an accused to bail. The
            question should be posed whether the accused deserves to
            be enlarged on bail or not and only thereafter issue of
            imposing conditions would arise. We do not deny for a moment
E           that period of custody is a relevant factor but simultaneously
            the totality of circumstances and the criminal antecedents are
            also to be weighed. They are to be weighed in the scale of
            collective cry and desire. The societal concern has to be kept
            in view in juxtaposition of individual liberty. Regard being
F           had to the said parameter we are inclined to think that the
            social concern in the case at hand deserves to be given priority
            over lifting the restriction on liberty of the accused.”
            (Emphasis supplied)
            27. In Bhagwan Rama Shinde Gosai and Others v. State of
G     Gujarat, reported in (1999) 4 SCC 421, wherein the appellants were
      convicted by the Trial Court against which, the appeal was pending before
      the High Court, the High Court successively rejected the prayer for
      grant of bail till the pendency of appeal after suspending the
      sentence.Thus, it has been held as follows:

H
   OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &                                159
          ANR. ETC. [J. B. PARDIWALA, J.]

      “3. When a convicted person is sentenced to a fixed period             A
      of sentence and when he files an appeal under any statutory
      right, suspension of sentence can be considered by the
      appellate court liberally unless there are exceptional
      circumstances. Of course, if there is any statutory restriction
      against suspension of sentence it is a different matter. Similarly,
                                                                             B
      when the sentence is life imprisonment the consideration for
      suspension of sentence could be of a different approach. But
      if for any reason the sentence of a limited duration cannot be
      suspended every endeavour should be made to dispose of
      the appeal on merits more so when a motion for expeditious
      hearing of the appeal is made in such cases. Otherwise the             C
      very valuable right of appeal would be an exercise in futility
      by efflux of time. When the appellate court finds that due to
      practical reasons such appeals cannot be disposed of
      expeditiously the appellate court must bestow special concern
      in the matter of suspending the sentence so as to make the
                                                                             D
      appeal right, meaningful and effective. Of course, appellate
      courts can impose similar conditions when bail is granted.”
                                                    (Emphasis supplied)
       28. In Sidhartha Vashisht alias Manu Sharma v. State (NCT
of Delhi), reported in (2008) 5SCC 230 (popularly known as the Jessica       E
Lal murder case), this Court had the occasion to consider the rival
submissions as well as various judicial pronouncements referred to by
both the sides over the prayer for bail.Thus, it has been held as follows:
      “19. We are conscious and mindful that the main matter
      (appeal) is admitted and is pending for final hearing.                 F
      Observations on merits, one way or the other, therefore, are
      likely to prejudice one or the other party to the appeal. We
      are hence not entering into the correctness or otherwise of
      the evidence on record. It, however, cannot be overlooked
      that as on today, the applicant has been found guilty and
      convicted by a competent criminal court. Initial presumption           G
      of innocence in favour of the accused, therefore, is no more
      available to the applicant.
      xxx                         xxx                      xxx

                                                                             H
160      SUPREME COURT REPORTS                        [2023] 5 S.C.R.


A     30. ….In the above cases, it has been observed that once a
      person has been convicted, normally, an appellate court will
      proceed on the basis that such person is guilty. It is no doubt
      true that even thereafter, it is open to the appellate court to
      suspend the sentence in a given case by recording reasons.
      But it is well settled, as observed in Vijay Kumar [(2002) 9
B
      SCC 364 : 2003 SCC (Cri) 1195 : JT 2002 Supp (1) SC 60]
      that in considering the prayer for bail in a case involving a
      serious offence like murder punishable under Section 302
      IPC, the Court should consider all the relevant factors like
      the nature of accusation made against the accused, the manner
C     in which the crime is alleged to have been committed, the
      gravity of the offence, the desirability of releasing the accused
      on bail after he has been convicted for committing serious
      offence of murder, etc. It has also been observed in some of
      the cases that normal practice in such cases is not to suspend
      the sentence and it is only in exceptional cases that the benefit
D
      of suspension of sentence can be granted.
      31. In Hasmat [(2004) 6 SCC 175 : 2004 SCC (Cri) 1757 :
      JT (2004) 6 SC 6] , this Court stated : (SCC p. 176, para 6)
         “6. Section 389 of the Code deals with suspension of
E        execution of sentence pending the appeal and release of
         the applicant on bail. There is a distinction between bail
         and suspension of sentence. One of the essential ingredients
         of Section 389 is the requirement for the appellate court to
         record reasons in writing for ordering suspension of
         execution of the sentence or order appealed. If he is in
F        confinement, the said court can direct that he be released
         on bail or on his own bond. The requirement of recording
         reasons in writing clearly indicates that there has to be
         careful consideration of the relevant aspects and the order
         directing suspension of sentence and grant of bail should
G        not be passed as a matter of routine.”
                                                  (emphasis supplied)
      32. The mere fact that during the period of trial, the accused
      was on bail and there was no misuse of liberty, does not per
      se warrant suspension of execution of sentence and grant of
H
   OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &                                161
          ANR. ETC. [J. B. PARDIWALA, J.]

      bail. What is really necessary is to consider whether reasons          A
      exist to suspend execution of the sentence and grant of bail.”
                                                (Emphasis supplied)
       29. In the case of Atul Tripathi v. State of Uttar Pradesh and
Others, reported in (2014) 9 SCC 177, whereunder apart from identifying
the differences of consideration of prayer for grant of bail relating to     B
pre-conviction stage as well as post-conviction stage, it has been held in
para 14 which is as follows:
      “14. Service of a copy of the appeal and application for bail
      on the Public Prosecutor by the appellant will not satisfy the
      requirement of the first proviso to Section 389(1) CrPC. The           C
      appellate court may even without hearing the Public
      Prosecutor, decline to grant bail. However, in case the
      appellate court is inclined to consider the release of the convict
      on bail, the Public Prosecutor shall be granted an opportunity
      to show cause in writing as to why the appellant be not
      released on bail. Such a stringent provision is introduced only        D
      to ensure that the court is apprised of all the relevant factors
      so that the court may consider whether it is an appropriate
      case for release having regard to the manner in which the
      crime is committed, gravity of the offence, age, criminal
      antecedents of the convict, impact on public confidence in             E
      the justice-delivery system, etc. …..”
       30. In Kishori Lal v. Rupa and Others, reported in(2004)7 SCC
638, this Court has indicated the factors that require to be considered by
the courts while granting benefit under Section 389 of the CrPC in cases
involving serious offences like murder etc. Thus, it is useful to refer to   F
the observations made therein, which are as follows:
      “4. Section 389 of the Code deals with suspension of
      execution of sentence pending the appeal and release of the
      appellant on bail. There is a distinction between bail and
      suspension of sentence. One of the essential ingredients of            G
      Section 389 is the requirement for the appellate court to record
      reasons in writing for ordering suspension of execution of
      the sentence or order appealed against. If he is in confinement,
      the said court can direct that he be released on bail or on his
      own bond. The requirement of recording reasons in writing
                                                                             H
162             SUPREME COURT REPORTS                           [2023] 5 S.C.R.


A           clearly indicates that there has to be careful consideration of
            the relevant aspects and the order directing suspension of
            sentence and grant of bail should not be passed as a matter
            of routine.
            5. The appellate court is duty-bound to objectively assess the
B           matter and to record reasons for the conclusion that the case
            warrants suspension of execution of sentence and grant of
            bail. In the instant case, the only factor which seems to have
            weighed with the High Court for directing suspension of
            sentence and grant of bail is the absence of allegation of
            misuse of liberty during the earlier period when the accused-
C           respondents were on bail.
            6. The mere fact that during the trial, they were granted bail
            and there was no allegation of misuse of liberty, is really not
            of much significance. The effect of bail granted during trial
            loses significance when on completion of trial, the accused
D           persons have been found guilty. The mere fact that during
            the period when the accused persons were on bail during
            trial there was no misuse of liberties, does not per se warrant
            suspension of execution of sentence and grant of bail. What
            really was necessary to be considered by the High Court is
E           whether reasons existed to suspend the execution of sentence
            and thereafter grant bail. The High Court does not seem to
            have kept the correct principle in view.”
             31. In Vijay Kumar v. Narendra and Othersreported in (2002)
      9 SCC 364 and Ramji Prasad v. Rattan Kumar Jaiswal and
F     Anotherreported in (2002)9 SCC 366, it was held by this Court that in
      cases involving conviction under Section 302 of the IPC, it is only in
      exceptional cases that the benefit of suspension of sentence can be
      granted. In Vijay Kumar (supra), it was held that in considering the
      prayer for bail in a case involving a serious offence like murder punishable
      under Section 302 of the IPC, the court should consider the relevant
G     factors like the nature of accusation made against the accused, the
      manner in which the crime is alleged to have been committed, the gravity
      of the offence, and the desirability of releasing the accused on bail after
      they have been convicted for committing the serious offence of murder.
           32. The aforesaid view is reiterated by this Court in the case of
H     Vasant Tukaram Pawar v. State of Maharashtra reported in (2005)5
   OMPRAKASH SAHNI v. JAI SHANKAR CHAUDHARY &                                   163
          ANR. ETC. [J. B. PARDIWALA, J.]

SCC 281 and Gomti v. Thakurdas and Others reported in (2007)11                  A
SCC 160.
       33. Bearing in mind the aforesaid principles of law, the endeavour
on the part of the Court, therefore, should be to see as to whether the
case presented by the prosecution and accepted by the Trial Court can
be said to be a case in which, ultimately the convict stands for fair chances   B
of acquittal. If the answer to the above said question is to be in the
affirmative, as a necessary corollary, we shall have to say that, if
ultimately the convict appears to be entitled to have an acquittal at the
hands of this Court, he should not be kept behind the bars for a pretty
long time till the conclusion of the appeal, which usually take very long
for decision and disposal. However, while undertaking the exercise to           C
ascertain whether the convict has fair chances of acquittal, what is to be
looked into is something palpable. To put it in other words, something
which is very apparent or gross on the face of the record, on the basis of
which, the Court can arrive at a prima facie satisfaction that the
conviction may not be sustainable. The Appellate Court should not               D
reappreciate the evidence at the stage of Section 389 of the CrPC and
try to pick up few lacunas or loopholes here or there in the case of the
prosecution. Such would not be a correct approach.
       34. In the case on hand, what the High Court has done is something
impermissible. High Court has gone into the issues like political rivalry,      E
delay in lodging the FIR, some over-writings in the First Information
Report etc. All these aspects, will have to be looked into at the time of
the final hearing of the appeals filed by the convicts. Upon cursory
scanning of the evidence on record, we are unable to agree with the
contentions coming from the learned Senior Counsel for the convicts
that, either there is absolutely no case against the convicts or that the       F
evidence against them is so weak and feeble in nature, that, ultimately in
all probabilities the proceedings would terminate in their favour.For the
very same reason we are unable to accept the contention coming from
the convicts through their learned Senior Counsel that, it would be
meaningless, improper and unjust to keep them behind the bars for a             G
pretty long time till they are found not to be guilty of the charges.
      35. In the overall view of the matter, we are convinced that the
High Court committed a serious error in suspending the substantive order
of sentence of the convicts and their release on bail pending the final
disposal of their criminal appeals.                                             H
164               SUPREME COURT REPORTS                          [2023] 5 S.C.R.


A            36. In fact, it was expected of the Stateas the prosecuting agency
      to challenge the order passed by the High Court, but for some reason or
      the other, the State thought fit not to do anything further. Ultimately, it is
      the original first informant (brother of the deceased) who had to come
      before this Court.
B             37. We make it clear and it goes without saying that any
      observations touching the merits of the case are purely for the purpose
      of deciding the present appeals and shall not be construed as an expression
      of the final opinion in the pending criminal appeals before the High Court.
               38. In the result, both the appeals succeed and are hereby allowed.
C              39. The impugned order passed by the High Court is hereby set
      aside.
            40. The convicts are ordered to surrender before the Trial Court
      within a period of three days from today.

D
      Ankit Gyan                                                     Appeals allowed.
      (Assisted by : Aarsh Choudhary, LCRA)




E




F




G




H