Supreme Court of India
SIDHARTHA VASHISHT @ MANU SHARMAversusSTATE (NCT OF DELHI)
- Citation
- 2008 INSC 634
- Decided
- 12 May 2008
- Disposal
- Disposed off
- Bench
- C K THAKKER
Holding
The Supreme Court dismissed the application, finding no sufficient grounds to suspend the sentence or grant bail under Section 389 CrPC.
Summary
Manu Sharma was acquitted by the trial court of murder (IPC 302 r/w 201, 120B) and an Arms Act offence, but the Delhi High Court set aside the acquittal, convicted him and sentenced him to life imprisonment. While his appeal against the conviction was pending before the Supreme Court, he filed an application under Section 389 of the CrPC seeking suspension of the sentence and release on bail. The Supreme Court examined the seriousness of the offence, the manner of its commission, and the likelihood that the appeal would be heard within a measurable period. It held that the circumstances did not warrant suspension of the sentence or bail, especially given the gravity of the murder charge. Consequently, the application was dismissed without expressing any view on the merits of the appeal.
Issues considered
- Whether an appellant convicted of murder and sentenced to life imprisonment is entitled to suspension of sentence and release on bail under Section 389 of the Code of Criminal Procedure, 1973 pending appeal.
Legislation cited
- Arms Act, 1959s. 27
- Code of Criminal Procedure, 1973s. 389
- Indian Penal Code, 1860s. 120B, s. 201, s. 302
Subjects
bailsuspension of sentenceSection 389 CrPCmurderlife imprisonmentappeal pendingcriminal procedureconviction reversal
Judgment
[2008] 8 S.C.R. 220
A SIDHARTHA VASHISHT @ MANU SHARMA
v.
STATE (NCT OF DELHI)
(Criminal M.P. No. 1775 of 2007)
IN
B (Criminal Appeal No. 179 of 2007)
MAY 12, 2008 ->4
[C.K. THAKKER AND D.K. JAIN, JJ.)
c Code of Criminal Procedure, 1973 - s. 389 - Suspen-
sion of sentence and release on bail - Charges u/s 302 r/w s.
201 and 120 B /PC and u/s 27 of Arms Act - Acquittal by trial
court - Conviction by High Court - During pendency of ap-
peal to Supreme Court, application uls 389 - Held: In view of
seriousness and gravity of offence, manner of commission of
D
offeroce, no case for suspension of sentence and release on
bail made out - Appeal is also likely to be heard within mea-
. suraib/e distance of time - Penal Code, 1860 - s. 302 rlw s.
201 and 120-B -Arms Act, 1959 - s. 27.
E Applicant-accused was acquitted of the charges u/s
302 IPC r/w s. 201 and 120 B IPC and u/s 27 of Arms Act,
1959. On app~I, High Court convicted him of the above
charges. During pendency of the appeal before this Court,
application u/s 389 Cr.P.C. for suspension of sentence and
F grant of bail was heard by this court.
..
Disposing of the application, the Court
HELD: 1.1 On the facts and in the circumstances of
the case, this is not a fit case to exercise power under
Section 389 Cr.P.C .. Though the trial Court has acquitted
G
the applicant-accused for the offences with which he was
charged, the High Court reversed the order of acquittal
and convicted him under Section 302 IPC and ordered
him
. to undergo
.
rigorous imprisonment for life. Being ag-
H 220
IDHARTHA VASHISHT@ MANU SHARMA v. STATE 221
--t· (NCT OF DELHI)
grieved by the said order, he has filed an appeal which A
has been admitted, is already on board and awaits final
hearing. Hence, within 'measurable distance of time' the
appeal is likely to be heard. Keeping in view the serious-
ness of offence, the manner in which the crime was said
to have been committed and the gravity of offence, no B
case has been made out by the applicant for suspension
·~ of sentence and grant of bail. [Para 35] [235-G-H; 236-A]
Akhilesh Kumar Sinha v. State of Bihar, 2000 (6) SCC
461; Vijay Kumar v. Narendra and Ors., 2002 (9) SCC 364;
Ramji Prasad v. Rattan Kumar Jaiswal and Anr. 2002 (9) SCC c
366; State of Haryana v. Hasmat, 2004 (6) SCC 175; Kishori
Lal v. Rupa and Ors.,2004 (7) SCC 638; State of Maharashtra
v. Madhukar Wamanrao Smarlh, 2008 (4) SCALE 412 - re-
lied on.
D
Kasbmira Singh v. State of Punjab, 1977 (4) SCC 291;
Babu Singh and Ors. v. State of U. P, 1978 (1) SCC 579;
Shailendra Kumar v. State of Delhi 2000 (4) SCC 178 : JT
2000 (1) SC 184 - distinguished.
Emperor v. Hutchinson, AIR 1931 All 356 - referred to. E
1.2 The applicant has been found guilty and con-
victed by a competent criminal court ( High Court). Initial
presumption of innocence in favour of the accused, there-
;.... fore, is no more available to the applicant. The High Court
has given cogent reasons for not accepting the view of F
the trial Court and grounds recorded for not believing
prosecution witnesses. [Paras 16 and 181 [228-B; 229-A]
2. The mere fact that during the period of trial, the
accused was on bail and there was no misuse of liberty,
G
does not per se warrant suspension of execution of sen-
tence and grant of bail. What really necessary is to con-
sider whether reasons exist to suspend execution of the
sentence and grant of bail. [Para 34] [235-E; 236-A]
CRIMINAL APPELLATE JURISDCTION : Criminal M.P. H
222 SUPREME COURT REPORTS [2008] 8 S.C.R.
"" -
A No. 1775 of 2007
From the Judgment & Order dated 18/20.12.2006 of the
High Court of Delhi at New Delhi in Criminal Appeal No. 193/
2006
B Ram Jethmalani, P.H. Parekh, Lata Krishnamurthy, E.R.
Kumar, La lit Chauhan, Ajay Jha, Saurabh Ajay Gupta, Mary Mizty,
Rajdeep Banerjee, Joyeeta Banerjee, Bansuri Swaraj, Rukhmini
"' .
Bobde, Somandri Goud (for P.H. Parekh & Co.) for the Appel-
lant.
c Gopal Subramanium ASG, Mukta Gupta, Nikhil Nayyar,
Ankit Singhal, T.V.S. Raghavendra Sreyas and Vibha Garg for
the Respondent.
Mamta Kalra, in-Person for Intervening Party.
' .D The Judgment of the Court was delivered by
C.K. THAKKER, J. 1. The present application is filed by
the appellant-accused under Section 389 of the Code of Crimi-
nal Procedure, 1973 (hereinafter referred to as 'the Code') for
suspension of sentence pending appeal in this Court and to
E
release him on bail.
2. Since an appeal against an order of conviction and sen-
tence recorded by the High Court of Delhi is admitted by this
Court and awaits final hearing, we will not enter into larger ques- ,...
F tions and deal with the present application for suspension of
sentence and bail.
3. Shortly stated, the case of the prosecution was that on
April 29-30, 1999, a party was organized at 'Tamarind Cate'
inside Qutub Colonnade. It was a private party where certain
G persons were invited and liquor was served. Jessica Lal (since
deceased) and one Shyan Munshi were in charge of the bar. It
was the allegation of the prosecution that appellant Sidhartha
Vashisht @ Manu Sharma along with his friends came there
and asked for liquor. Jessica Lal and Shyan Munshi did not oblige
H him by providing liquor since the bar was closed. According to
IDHARTHA VASHISHT@ MANU SHARMA v. STATE 223
--t- (NCT OF DELHI) [C.K. THAKKER, J.]
the prosecution, the appellant got enraged on refusal to serve A
liquor, took out his .22 pistol and fired two rounds, first into the
ceiling and the second at Jessica Lal. Jessica Lal fell down as
a result of the shot which proved fatal and she died. According
to the assertion of the prosecution, several persons witnessed
. ~·
the incident. 8eena Ramani, who was present, stopped the
appellant and questioned him as to why he had shot Jessica
Lal. She also demanded weapon from the accused but the ac-
8
cused did not handover pistol and fled away.
4. FIR was lodged, a case was registered and investiga-
tion was carried out. At the trial, more than 100 witnesses had c
been examined. The trial Court acquitted the accused holding
that it was not proved by the prosecution that the accused had
committed the offence with which he, along with other accused,
was charged.
D
5. The State .Preferred an appeal against an order of ac-
quittal recorded by the trial Court. The High Court of Delhi held
that the trial Court was wrong in acquitting the accused and the
prosecution was successful in proving the guilt against the ap-
pellant (as well as two other accused) and accordingly recorded
conviction inter a/ia for an offence punishable under Section E
302, Indian Penal Code (IPC) and imposed sentence of im-
prisonment for life.
,.. 6. The High Court observed that it has "no hesitation in
holding" that the appellant was guilty of an offence punishable F
under Section 302 read with Sections 201 and 1208, IPC and
also under Section 27 of the Arms Act, 1959 for having commit-
ted murder of Jessica Lal on April 29-30, 1999 at 'Tamarind
Cafe' and ordered him to undergo rigorous imprisonment for
life and also imposed sentence for other offences.
G
7. With regard to the other two accused, however, the Court
held that they were guilty for committing an offence punishable
under Sections 201 and 1208, IPC.
8. The appellant-applicant approached this Court by insti-
H
224 SUPREME COURT REPORTS [2008] 8 S.C.R.
.....
A tuting an appeal under Section 2(a) of the Supreme Court (En-
largement of Criminal Appellate Jurisdiction) Act, 1970 as also
under Section 379 of the Code. The appeal was placed for ad-
mission. On March 7, 2007, the appeal was admitted and no-
tice was issued on application for bail. Counsel appeared on
B behalf of the respondent and accepted the notice. It was or-
dered to be listed in the first week of April, 2007, meanwhile,
counter affidavit, if any, was to be filed. .. .
9. On April 2, 2007 when the matter appeared on Board,
the Court passed orders of bail in respect of other accused, but
c in the instant case (Crl.M.P. No. 1775 of 2007), the Court fixed
final hearing of the matter. It, however, appears that the appeal
could not be heard. On January 24, 2008, the Court ordered
listing of appeals along with bail applications "before any other
appropriate Bench" on 121h February, 2008. The matter was thus
D placed before this Bench.
10. In view of several other matters, however, the appeal
cCiluld not be taken up for hearing. Mr. Ram Jethmalani, learned
senior advocate, appearing for the appellant-accused, no doubt,
requested the Court to take up the matter out of turn. He alter-
E natively submitted that if the appeal is not heard, the applica-
tion for bail may be heard as according to him, he did not press
for bail earlier when the appeal was placed for admission hear-
ing and was admitted since the Court had fixed final hearing of
main matter. According to him, the appellant was in jail and if
~
F the appeal will not be heard for a considerable long time, seri-
ous prejudice will be caused to the accused. On the facts and in
the circumstances, therefore, we directed the Registry to place
the application for suspension of sentence and grant of bail on
Board so that an appropriate order may be passed on the prayer
G of the applicant-appellant-accused.
11. We have heard learned counsel for the parties.
12. The learned counsel for the applicant submitted that
no case has been made out by the prosecution against the ap-
H pellant-accused. The trial Court, after considering the evidence
IDHARTHA VASHISHT@ MANU SHARMA v. STATE 225
(NCT OF DELHI) [C.K. THAKKER, J.]
~
of the prosecution witnesses in its entirety, recorded an order A
of acquittal in favour of the accused. He submitted that the trial
Court held that PW1-Deepak Bhojwani and PW30-Shravan
Kumar had been 'planted' by the prosecution. PW2-Shyan
Munshi had expressly stated that shots were fired by two per-
sons and appellant-accused was not one of them. Neither 8
PW1-Deepak Bhojwani, Nor PW2-Shyan Munshi, nor
.. + PW3-Shiv Dass Yadav; nor PW4-Karan Rajput were eye-
witnesses. For rejecting ocular evidence of PW6-Malini
Ramani and PW20-Beena Ramani, cogent and convincing
reasons have been recorded by the trial Court. It was not proved c
that Tata Safari was in possession of the appellant-accused,
nor was there anything to show that he used the said vehicle on
291h April, 1999. Report of ballistic expert does not support pros-
ecution and on that ground also, the trial Court was right in pass-
ing the orderof acquittal.
-+
D
13. According to the learned counse!, Beena Ramani-
PW20, was not an eye-witness. A statement to that effect was
made by the Public Prosecutor at the trial in the Sessions Court.
It was also clear that a false Excise Case had been registered
against thE! said witness and she was pressurized to depose in E
favour of prosecution and as soon as her evidence was over,
she was obliged by compounding the offence on imposing fine
which went to show that.it was the systematic effort of the pros-
ecution to involve the appellant-accused who was totally inno-
;.. cent. The counsel also submitted that photograph of the accused F
was collected by the Police during investigation and was shown
to the pros.ecution witnesses and identification of the accused
was meaningless. Media had played active role and even be-
fore the conclusion of the trial, they had virtually described the
applicant not as an 'accused' but as a 'convict' or an 'offender'.
G
According to the learned counsel, the trial Court dispassion-
~ ately and objectively considered the evidence in its proper per-
spective without being influenced by extraneous factors and
granted benefit of doubt to the accused. The High Court was
'wholly' wrong in reversing the finding of the trial Court and in
H
226 SUPREME COURT REPORTS [2008] 8 S.C.R.
A convicting the applicant and in imposing sentence of imprison-
ment for life. The order passed by the High Court, submitted the
counsel, is not in consonance with law and the applicant has
fair and good chance of his appeal being allowed. He is in jail
since long and as the appeal is likely to take time, a reasonable
B prayer for suspension of sentence and grant of bail deserves to
be accepted by enlarging the applicant-accused on bail on such +.
terms and conditions as this Court deems fit.
14. Mr. Gopal Subramanyam, learned Addi. Solicitor Gen-
eral, on the other hand, strongly opposed the prayer made by
C the applicant of suspension of sentence and grant of bail. He
submitted that the order of acquittal recorded by the trial Court
was clearly wrong and against the evidence on record. The High
Court, as a Court of 'first appeal', considered the evidence and
held that the trial Court was 'wholly' wrong in not believing the
D prosecution witnesses. The High Court also observed that the
grourids which weighed with the trial Court for n0t believing pros-
ecution witnesses, could not be said to be legal, proper or based
on evidence on record. The counsel submitted that there was
no reason for the trial Court not to believe evidence of PW1-
E Deepak Bhojwani, PW30-Shravan Kumar, PW20-Beena
Ramani, PW6-Malini Ramani and other witnesses. The coun-
sel submitted that the High Court considered in detail, the rea-
sons recorded by the trial Court and rightly observed that to
describe a particular witness as 'planted' by the prosecution is
F a serious matter and normally no Court of law would proceed
on that basis. Mr. Subramanyam also submitted that from the
prosecution evidence, it is clear that the applicant along with
other accused came to Tamarind Cafe on 291h April, 1999, asked
for liquor and when he was refused liquor on the ground that the
G bar was closed, he became very angry, took out his .22 pistol
and fired two rounds; one towards ceiling and the other towards
Jessica Lal due to which she died. This was witnessed by sev-
eral persons who were present at that time. Some of them, how-
ever, did not support the prosecution. The learned Addi. Solici-
tor General submitted that the terror of the accused was clear
H
IDHARTHA VASHISHT@ MANU SHARMA v. STATE 227
__.,.. (NCT OF DELHI) [C.K. THAKKER, J.]
from the fact that about two dozen witnesses had been turned A
hostile. The trial Court ought to have considered this aspect.
But even otherwise, in view of the above situation, the witnesses
who were examined and supported the prosecution ought to
have been believed by the trial Court. It, however, failed to do
so. The High Court was, therefore, 'fully' justified in believing B
the evidence of those witnesses and in recording the order of
• +-
conviction.
15. It was also stated that according to the High Court,
after the commission of offence, the accused absconded. His
farm house was raided by the police authorities during the course c
of investigation. He was neither found there nor did he surren-
der immediately. The High Court also recorded a finding that
Tata Safari, used by the accused at the time he visited Qutub
Colonnade was recovered from NOi DA which was removed from
+ the place of offence. According to the High Court, the evidence D
on record showed that Tata Safari was parked at Qutub Colon-
nade in the night of April 29-30, 1999. The vehicle belonged to
Piccadilly Agro Industries Limited of which the accused was
admittedly a Director. The vehicle was surreptitiously removed
from the scene of occurrence. The High Court noted that it was E
admitted by the accused that he was having licensed pistol of
.22 bore. The High Court was also aware that several witnesses
turned hostile and did not support the prosecution but from the
available material, it was proved beyond reasonable doubt that
+- it was the applicant who had visited Qutub Colonnade on the F
night of 291"/ 301" April, 1999 and demanded liquor and on re-
fusal by Jessica Lal and Shyan Munshi, he became angry and
fired two shots one of which hit Jessica Lal and proved fatal. It
was, therefore, submitted by the learned Addi. Solicitor Gen-
eral that the order passed by the High Court is legal, valid and
G
... in consonance with law and no error has been committed by
the High Court in setting aside the order of acquittal recorded
by the trial Court.
16. We are conscious and mindful that the main matter
(appeal) is admitted and is pending for final hearing. Observa- H
228 SUPREME COURT REPORTS (2008] 8 S.C.R.
~. -
A tions 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 compe-
B tent criminal court. Initial presumption of innocence in favour of
the accused, therefore, is no more available to the applicant.
-+ •
17. In para 56, the High Court obseNed as under:
"56. In the totality of circumstances adduced from material
c on record, the judgment under challenge appears to us to
be an immature assessment of material on record which
is self-contradictory, based on misreading of material and
unsustainable. We find that Beena Ramani has identified
Sidhartha Vashisht @ Manu Sharma, Amardeep Singh
Gil, Alok Khanna and Vikas Yadav to be the persons
D
present at the Tamarind Cafe at the time of the incidence.
She also saw Manu Sharma firing the fatal shot which hit
Jessica Lal. Her testimony finds corroboration from the
testimony of Malini Ramani and George Mailhot. There is
evidence on record to show that Manu Sharma had a
E licensed pistol of .22 bore which he has not produced to
establish his innocence and on the contrary has taken
false plea that the pistol, its ammunition and licence had
been removed by the Police on 30.4.1999. We also find
from the material on record that Manu Sharma abandoned k
F his vehicle while making good his escape. We also find
that the ammunition used in the causing of the firearm
injury to Jessica Lal was of .22 bore which Manu Sharma
admittedly possessed and a similar live cartridge was
recovered from the abandoned Tata Safari. From this, we
G have no hesitation in holding that Manu Sharma is guilty
of an offence under Section 302 /PC for having
committed the murder of Jessica Lal on 29130. 4. 1999 at
the Tamarind Cafe as also under Section 27 Arms Act".
(emphasis supplied)
H
IDHARTHA VASHISHT@ MANU SHARMA v. STATE 229
-A (NCT OF DELHI) [C.K. THAKKER, J.]
18. The High Court has also given cogent reasons for not A
accepting the view of the trial Court and grounds recorded for
not believing prosecution witnesses.
19. Mr. Ram Jethmalani, learned senior advocate no doubt
submitted that the trial Court was right in not relying upon the
prosecution witnesses, but Mr. Gopal Subramanyam submit- B
' +~ ted that the approach of the trial Court was incorrect and im-
proper. According to the High Court it was on the verge of 'per-
versity'.
20. It is premature to express any opinion, one way or the c
other at this stage butthe fact remains that the order of acquittal
recorded by the trial Court has been set aside and the appli-
cant-accused has been convicted for an offence punishable
under Section 302, IPC and ordered to undergo imprisonment
-+ for life.
D
21. Mr. Ram Jethmalani, learned senior advocate, invited
our attention to several decisions of this Court. Some of them
relate to grant of bail at the pre-trial stage. The Courts in such
cases have considered several factc:irs, such as, there is a pre-
sumption of innocence in favour of an accused till it is estab- E
lished that he is guilty; he has to make preparation for his de-
fence and he must have every opportunity to look after his case;
it will be very difficult for an accused to make such preparation
~
if he is in jail than he is out of jail. One of the considerations
~
which a Court of law would keep in mind at that stage is to se- F
cure the attendance of the accused. Hence, on security being
furnished, he is released on bail if the Court is satisfied that the
case on hand was fit one to grant such concession in favour of
the accused.
22. Before about eight decades, in the leading case of G
-.f
Emperor v. Hutchinson, AIR 1931 All 356: 32 CrLJ 1271 : 33
IC 842 (the Meerut Conspiracy case), Boys, J. observed:
"As to the object of keeping an accused person in detention
during the trial, it has been stated that the object is not
H
230 SUPREME COURT REPORTS (2008] 8 S.C.R.
A punishment, that to keep an accused person under arrest
with the object of punishing him on the assumption that he
is guilty even if eventually he is acquitted is improper. This
is most manifest. The only legitimate purposes to be
served by keeping person under trial in detention are to
IB prevent repetition of the offence with which he is charged
where there is apparently danger of such repetition and to
·+ '
secure his attendance at the trial. The first of those
purposes clearly to some extent involves an assumption
of the accused's guilt, but the very trial itself is based on
a prima facie assumption of the accused's guilt and it is
c impossible to hold that in some circumstances it is not a
proper ground ~o be considered. The main purpose
however is manifestly to secure the attendance of the
accused".
......
D (emphasis supplied)
23. In concurring ju~gment, Mukherji, J. also stated;
"The principle to be deduced from Sections 496 and 497,
Criminal P.C., therefore is that grant of bail is the rule and
E refusal is the exception. That this must be so is not at all
difficult to see. An accused person is presumed under the
law to be innocent till his guilt is proved. As a presumably
innocent person, he is entitled to freedom and every
opportunity to look after his own case. It goes without .+
F saying that an accused person, if he enjoys freedom, will
be in a much better position to look after his case and to
properly defend himself than if he were in custody.
(emphasis supplied)
24. The above principle has been reiterated from time to
G
time thereafter. ...
25. Section 389 of the Code expressly and specifically
deals with suspension of sentence pending appeal and release
of appellant on bail. It states;
H
IDHARTHA VASHISHT@ MANU SHARMA v. STATE 231
(NCT OF DELHI) [C.K. THAKKER, J.]
389. Suspension of sentence pending the appeal; A
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 B
bail, or on his own bond.
(2) The power conferred by this section on a 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. C
(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 D
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 E
released on bail, unless there are special
reason·s for refu:Jing 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 F
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 G
time during which he is so released shall be excluded in
computing the term for which he is so sentenced.
26. Bare reading of the above provision makes it clear
that during the pendency of appeal, an appellate Court is em-
powered to suspend sentence qn the appellant by releasing H
•
F
232 SUPREME COURT REPORTS [2008] 8 S.C.R.
+- -
A him on bail. Such action, however, can be taken only after af-
fording opportunity to the Public Prosecutor in case of offence
punishable with death or imprisonment for life or imprisonment
for ten years or more and after recording reasons in writing.
27. Mr. Jethmalani, relying on the decisions in Kashmira
B Singh v. State of Punjab, (1977) 4 SCC 291, Babu Singh &
Ors. v. State of UP, (1978) 1 SCC 579, Shailendra Kumar v. ~·
State of Delhi, (2000) 4 SCC 178 : JT 2000 (1) SC 184 and
other cases, submitted that one of the factors which weighed
with this Court in granting suspension of sentence and releas-
c ing the applicant on bail is that in case of acquittal by the trial
Court and conviction by the appellate Court, hearing of appeal
takes long time and the applicant has to remain in jail.
28. As observed in those cases, the practice of not re-
leasing a person on bail who had been sentenced for imprison-
0 ment for life under Section 302, IPC was that the appeal was
likely to oe heard in near future. But if such appeal would not be
heard for long and not disposed of within a 'n:ieasurable dis-
tance of time', it would not be in the interest of justice to keep
such person in jail for a number of years and it would be appro-
E priate if the power under Section 389 of the Code is exercised
in favour the applicant.
29. In Kashmira Singh, this Court stated;
•
"Now, the practice in this Court as also in many of the High -t
F Court has been ·not to release on bail a person who has
been sentenced to life imprisonment for an offence under
Section 302 of the Indian Penal Code. The question is
whether this practice should be departed from and if so,
in what circumstances. It is obvious that no practice
G . howsoever sanctified by u~age and hallowed by time can
be allowed to prevail if ittoperates to cause injustice. Every
...
practice of the Court must find its ultimate justification in
the interest of justice. The practice not be release on bail
a person who has been sentenced to life imprisonment
H was evolved in the High Courts. and in this Court on the
IDHARTHA VASHISHT@ MAN!J SHARMA v. STATE 233
-..Al- (NCT OF DELHI) [C.K. THAKKER, J.]
basis that once a person has been found guilty and A
sentenced to life imprisonment, he should not be let loose,
so long as his conviction and sentence are not set aside,
but the underlying postulate of this practice was that the
appeal of such person would be disposed of within a
measurable distance of time, so that if he is ultimately B
·~ found to be innocent, he would not have to remain in jail
for an unduly long period. The rationale of this practice
can have no application where the Court is not in a position
to dispose of the appeal for five or six years. It would
indeed be a travesty of justice to keep a person in jail for c
a period of five or six for an offence which is ultimately
found not to have been committed by him. Can the Court
ever compensate him for his incarceration which 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
D
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 much remain
in jail, even though you may be innocent?" What confidence
would such administration of justice inspire in the mind of
the public? It may quite conceivably happen, and it has in E
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 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 F
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 therefore, absolutely essential that the practice which
this Court has been following in the past must be G
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 for acting otherwise, release the
accused on bail in cases where special leave has been H
234 SUPREME COURT REPORTS [2008] 8 S.C.R.
A granted to the accused to appeal against his conviction
and sentence".
(emphasis supplied)
30. The other consideration, however, is equally important
B and relevant. When a person is convicted by an appellate Court,
he cannot be said to be an 'innocent person' until the final deci-
sion is recorded by the superior Court in his favour.
___,. .
31. Mr. Gopal Subramanyam, learned Addi. Solicitor Gen-
eral invited our attention to Akhi/esh Kumar Sinha v. State of
c Bihar, (2000) 6 SCC 461, Vijay Kumar v. Narendra & Ors.,
(2002) 9 SCC 364: JT 2004 Supp (1) SC 60, Ramji Prasad v.
Rattan Kumar Jaiswa/ & Anr, (2002) 9 SCC 366 : JT 2002 (7)
SC 477, State of Haryana v. Hasmat, (2004) 6 SCC 175: JT
2004 (6) SC 6, Kishori Lal v. Rupa & Ors., (2004) 7 SCC 638
D : JT 2004 (8) SC 317 and State of Maharashtra v. Madhukar
Wamanrao Smarth, (2008) 4 SCALE 412 : JT 2008 (4) SC
461.
32. In the above cases, it has been observed that once a
person has been convicted, normally, an appellate Court will
E
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 sus-
pend the sentence in a given case by recording reasons. But it
is well settled, as observed in Vijay Kumar that in considering .
the prayer for bail in a case involving a serious offence like +
F 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 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
G 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 of suspension of sentence
can be granted
H
IDHARTHA VASHISHT@ MANU SHARMA v. STATE 235
~---+ (NCT OF DELHI) [C.K. THAKKER, J.]
33. In Hasmat, this Court stated; A
"6. Section 389 of the Code deals with suspension of
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 B
•+ Appellate Court to record reasons in writing for ordering
suspension of execution of the sentence or order appealed.
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 clearly indicates that there c
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".- .
D
(emphasis supplied)
34. The mere fact that during the period of trial, the ac-
cused was on bail anc:l there was no misuse of liberty, does not
per se warrant suspension of execution of sentence and grant
of bail. What really necessary is to consider whether reasons E
exist to suspend execution of the sentence and grant of bail.
35. On the facts and in the circumstances of the case, in
,, our considered opinion, this is not a fit case to exercise power
+ under Section 389 of the Code. Though the trial Court has ac-
quitted the applicant-accused for the offences with which he was F
charged, the High Court reversed the order of acquittal and
convicted him under Section 302, IPC and ordered him to un-
dergo rigorous imprisonment for life. Being aggrieved by the
said order, he has filed an appeal which has been admitted, is
already on board and awaits final hearing. Hence, within 'mea- G
surable distance of time' the appeal is likely to be heard. Keep-
ing in view the seriousness of offence, the manner in which the
crime was said to have been committed and the gravity of of-
fence, we are of the view that no case has been made out by
the applicant-appellant for suspension of sentence and grant of H
236 SUPREME COURT REPORTS [2008] 8 S.C.R.
A bail. The application deserves to be dismissed and is accord-
ingly dismissed.
36. Before parting with the matter, we may clarify that we
may not be understood to have expressed any opinion on mer-
its of the matter one way or the other and all the observations
8 made by us hereinabove should be taken as confined to deal-
ing with the prayer of the applicant-appellant under Section 389
of the Code. As and when the main matter i.e. criminal appeal
will come up for hearing, it will be decided on its own merits
without being inhibited or influenced by the observations in this
C order.
37. The application is accordingly disposed of.
K.K.T. Application disposed of.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "bail"Sign in to search