PURUSHOTHAMANversusSTATE OF TAMIL NADU

                 [2023] 14 S.C.R. 181 : 2023 INSC 970



                           CASE DETAILS

                         PURUSHOTHAMAN
                                    v.
                      STATE OF TAMIL NADU
                   (Criminal Appeal No.3341 of 2023)
                          OCTOBER 30, 2023
          [ABHAY S.OKA AND PANKAJ MITHAL, JJ.]

                            HEADNOTES

     Issue for consideration: When the sentence of accused is suspended
on appeal and he is released on bail, whether the High Court can cancel
the bail without giving a reasonable opportunity, to the accused of being
heard.
     Code of Criminal Procedure, 1973 – s. 389 – Suspension of sentence
pending the appeal; release of appellant on bail - Appeal against
conviction by the accused admitted by the High Court – Substantive
sentence of the accused suspended and he was enlarged on bail – When
appeal called for hearing, the High Court cancelled the bail of the
accused, without giving an opportunity of hearing, as an advocate for
the accused sought four weeks adjournment – Correctness:
      Held: For the default of the advocate appointed by the accused, the
appellate court cannot penalize the accused by proceeding to cancel his
bail only on the ground that his advocate has sought adjournment and that
also without giving an opportunity of being heard to him on the issue of
cancellation of bail – Under sub-section 1 of s. 389, while suspending the
sentence of the accused who is in Jail, the appellate court has to enlarge
the accused on bail till the final disposal of the appeal – Court can even
Suo Motu issue a notice calling upon the accused to show cause why the
bail should not be cancelled – Under no circumstances, the bail granted
to an accused u/s. 389(1) can be cancelled without giving a reasonable
opportunity to the accused of being heard – In a given case, if the
advocate appearing for the accused seeks adjournment on untenable and

                                   181
182          SUPREME COURT REPORTS                        [2023] 14 S.C.R.


unreasonable grounds, the appellate court is well within its power to refuse
the prayer for adjournment, and has a discretion to appoint an advocate to
espouse the cause of the appellant – Thus, such approach on the part of
the High Court cannot be countenanced – Impugned order is quashed and
set aside and the earlier order granting suspension of sentence and bail
to the accused is restored – Protection of Children from Sexual Offences
Act, 2012 – s. 6. [Paras 5, 7-10]

      LISTS OF CITATIONS AND OTHER REFERENCES

     Bani Singh v. State of U.P. (1996) 4 SCC 720: [1996] 3 Suppl. SCR
247 – relied on.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.3341 of 2023.
     From the Judgment and Order dated 07.07.2023 of the High Court of
Judicature at Mardas in CRLA No.203 of 2017.
      Appearances:
    B. Karunakaran, Ajith Williyam S., Shankar P., Eashwar for S.
Gowthaman, Advs. for the Appellant.
      Dr. Joseph Aristotle S., Ms. Shubhi Bhardwaj, Advs. for the respondent.
       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT

      ABHAY S.OKA, J.
      Leave granted.
      2. Heard the learned counsel appearing for the parties.
     3. The appellant-accused was convicted by the Trial Court for the
offence punishable under Section 6 of the Protection of Children from
Sexual Offences Act, 2012 (for short ‘POCSO Act’). The appeal against
conviction preferred by the appellant was admitted by the High Court and by
       PURUSHOTHAMAN v. STATE OF TAMIL NADU                               183
                [ABHAY S.OKA, J.]

the order dated 12th January, 2018, the substantive sentence of the appellant
was suspended and he was ordered to be enlarged on bail.
      4. On 7th July, 2023, the said Criminal Appeal of the year 2017 was
called out before the learned Single Judge of the High Court for hearing.
The Advocate for the appellant sought adjournment for four weeks. Only
on the ground that the appellant is enjoying the facility of bail and that his
advocate applied for adjournment, the High Court proceeded to cancel the
bail.
     5. In a given case, if the advocate appearing for the appellant-accused
seeks adjournment on untenable and unreasonable grounds, the Appellate
Court is well within its power to refuse the prayer for adjournment. In
such a case, one of the courses suggested by a decision of this Court in
the case of Bani Singh v. State of U.P.1 can always be adopted by the
High Court. The High Court has a discretion to appoint an advocate to
espouse the cause of the appellant when the advocate appointed by the
appellant refuses to argue the appeal on unreasonable grounds. Though
the High Court has an option of considering the merits of the appeal and
deciding the same on merits, the High Court could always adopt the first
course of appointing an advocate to espouse the cause of the appellant.
     6. Sub-section 1 of Section 389 of the Code of Criminal Procedure,
1973 (for short “CrPC”) reads thus:
           “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.
           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:


1   (1996) 4 SCC 720
184          SUPREME COURT REPORTS                         [2023] 14 S.C.R.


            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.”
                                                      (underline supplied)
      7. Under sub-section 1 of Section 389, while suspending the sentence
of the appellant-accused who is in Jail, the Appellate Court has to enlarge
the accused on bail till the final disposal of the appeal. The second proviso
to sub-section 1 of Section 389 permits the Public Prosecutor to file an
application for cancellation of the bail granted under sub-section 1. The
second proviso to sub-section 1 of Section 389 is on par with sub-section
2 of Section 439 of CrPC. Therefore, the Court can even Suo Motu issue a
notice calling upon the accused to show cause why the bail should not be
cancelled. Under no circumstances, the bail granted to an accused under
sub-section 1 of Section 389 can be cancelled without giving a reasonable
opportunity to the accused of being heard.
      8. Unfortunately, the High Court, without even giving an opportunity
of being heard to the appellant-accused on the issue of cancellation of bail,
has straight away proceeded to cancel the bail granted to him. Such approach
on the part of the High Court cannot be countenanced especially when the
High Court can always deal with the situation when an adjournment is sought
by the advocate for the accused at the time of final hearing of the appeal
on unreasonable grounds. For the default of the advocate appointed by the
accused, the Appellate Court cannot penalize the accused by proceeding to
cancel his bail only on the ground that his advocate has sought adjournment
and that also without giving an opportunity of being heard to him on the
issue of cancellation of bail.
      9. We have come across cases where an application for suspension
of sentence was rejected by the High Court only on the ground that the
advocate for the accused declined to argue the appeal on merits. When only
the application for suspension of sentence is listed for hearing, the advocate
for the accused is not expected to be ready to argue the appeal.
      10. Accordingly, the impugned order is hereby quashed and set aside
and the earlier order dated 12th January, 2018 granting suspension of sentence
and bail to the appellant is restored.
        PURUSHOTHAMAN v. STATE OF TAMIL NADU                            185
                 [ABHAY S.OKA, J.]

      11.We make it clear that if the appellant applies for adjournment on
any unreasonable or unwarranted ground, it will be always open for the High
Court to proceed with the appeal by taking recourse to one of the options
laid down in the case of Bani Singh1.
      12. The appeal is accordingly allowed.


Headnotes prepared by:                                        Appeal allowed.
Nidhi Jain