STATE OF HARYANAversusHASMAT

A                            STATE OF HARYANA
                                     v.
                                  HASMAT

                                 JULY 26, 2004
B               [ARJJIT PASAYAT AND C.K. THAKKER, JJ.]

         Code of Criminal Procedure, 1973:

         S. 389-Suspension ofsentence and grant of bail-Accused convicted
C uls 302 /PC-Pending appeal, on application of accused uls 389, High
    Court releasing him on bail observing that the accused was on parole
    earlier and there was no allegation of misuse of liberty by him-Held,
    appellate court is duty bound to objectively assess the matter and to record
    reasons for conclusion that the case warrants suspension of execution of
D   sentence and grant of bail-Order of High Court does not meet the
    requirement-Impugned order set aside.                                          ,....
         Respondent-accused was convicted alongwith others, inter alia,
    us/ 302 r/w s.149 IPC and sentenced to imprisonment for life. In the
    appeal before the High Court. he filed an application purported to be
E   u/s 389 of the Code of Criminal Procedure, 1973 for suspension of
    sentence and releasing him on bail. The High Court granted bail
    observing that after the conviction the accused had been granted
    parole and he did not misuse the liberty during that period.

F        It was contended for the State that the respondent accused was
    the key figure in the gruesome murder and because he was granted
    parole, the same could not be a ground for suspension of sentence and
    grant of bail in terms of s.389 Cr.P.C.

         Disposing of the appeals, the Court
G
         HELD : There is a distinction between bail and suspension of
    sentence. One of the essential ingredients of s.389 of the Code of
    Criminal Procedure, 1973, is the requirement for the appellate court
    to record reasons in writing for ordering suspension of execution of the
H   sentence or order appealed. The appellate court is duty bound to

                                        132
           STATE OF HARYANA v. HASMAT [PASAYAT, J.]                133

objectively assess the matter and to record reasons for the conclusion A
that the case warrants suspension of execution of sentence and grant
of bail. 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 ofliberty during the period the accused-
respondent was granted parole. It does not per se warrant suspension B
of execution of sentence and grant of bail. Order of the High Court
does not meet the requirement, and is set aside. (134-F-H; 135-A-G)

    Vijay Kumar v. Narendra and Ors., (2002) 9 SCC 364 and Ramji
Pasad v. Rattan Kumar Jaiswal and Anr., (2002) 9 SCC 366, relied on.
                                                                         c
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
715-617 of 2004.

     From the Judgment and Order dated 12.5.2003 of the Punjab and
Haryana High Court in Crl. Misc. No. 14009-10 of 2003 in Crl. A. No. D
100-DB of 2002.

     Sunder Khatri and Vijay Kumar Garg for the Appellant.

     Zafar Sadique and Balraj Dewan for the Respondent.
                                                                         E
     The Judgment of the Court was delivered by

     ARIJIT PASAYAT, J.: Leave granted.

      The State ofHaryana calls in question grant of bail to accused Hasmat
(respondent herein) by the Punjab and Haryana High Court. Criminal F
miscellaneous No. 14009/2003 was filed in Criminal Appeal No. 100/2002
purportedly under Section 389 of the Code of Criminal Procedure, 1973
(in short the 'Code') with a prayer that the substantive sentence imposed
i.e. imprisonment for life. and a fine of Rs. 10,000 should be suspended
and the respondent be released on bail during the pendency of the appeal G
filed. The accused-respondent along with twenty two others faced trial for
alleged commission of offences punishable under Sections 148, 302, 307,
324 read with Section 149 of Indian Penal Code, 1860 (in short the 'IPC')
and Sections 25 and 27 of the Arms Act, 1959 (in short the 'Arms Act').
Accused - respondent along with some others was found guilty of offences H
    134                SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A punishable under Sections 302, 307, 148 read with section 149 !PC. They
    were sentenced to undergo imprisonment for life and pay the fine as.
    aforenoted for the offence punishable under Section 302 read with Section
    149 !PC.

B         The High Court by the impugned order granted bail primarily on the
    ground that after the conviction the accused respondent had been granted
    parole on three occasions and there was no allegation of any misuse of
    liberty during the period of parole.

          According to learned counsel for the appellant-State it was the
C accused respondent who was the key figure in a gruesome murder and there
    was direct and unimpeachable evidence establishing the commission of the
    crime by him. The trial Court by a detailed and reasoned judgment held
    him guilty, convicted and sentenced as aforesaid. Merely because parole
    was granted, the same cannot be a ground for suspension of the sentence
D   and grant of bail in terms of Section 389 of the Code.

          Per contra, learned counsel for the accused - respondent submitted
    that there was no allegation of misuse of liberty during the parole period.
    The High Court was justified in granting bail to the accused respondent.
E   It is not a fit case which calls for interference in terms of Article 136 of
    the Constitution of India, 1950 (in short the 'Constitution').

          Section 389 of the Code deals with suspension of execution of
    sentence pending the appeal and release of the appellant on bail. There is
F   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 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
G   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.

         The Appellate Court is duty bound to objectively assess the matter
    and to record reasons for the conclusion that the case warrants suspension     .
H   of execution of sentence and grant of bail. Jn the instant case, the only
                STATE OF HARYANA v. HASMAT [PASAYAT, J.]                  135
    factor which seems to have weighed with the High Court for directing A
    suspension of sentence and grant of bail is the absence of allegation of
    misuse of liberty during the period the accused-respondent as granted
    parole.

         The learned Sessions Judge, Gurgaon by ajudgmentdated 24.10.2001 B
    had found the accused respondent guilty. Criminal Appeal No. I OODB/2002
    was filed by the respondent. The fact that during the pendency of the appeal
    the accused respondent was on parole goes to show that initially the
    accused respondent was not given the benefit of suspension of execution
    of sentence. The mere fact that during the period of parole the accused has
    not misused the liberties does not per se warrant suspension of execution C
    of sentence and grant of bail. What really was necessary to be considered
    by the High Court was 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.
                                                                                D
          In Vijay Kumar v. Narendra and Ors., [2002] 9 SCC 364 and Ramji
'   Pasad v. Rattan Kumar Jaisweal and Anr., [2002] 9 SCC 366, it was held
    by this Court that in cases involving conviction under Section 302 IPC,
    it is only in exceptional cases that the benefit of suspension of sentence
    can be granted. The impugned order of the High Court does not meet the E
    requirement. In Vijay Kumar's case (supra) it was held that in considering
    the prayer for bail in a case involving a serious offence lij(e murder
    punishable under section 302 IPC, the Court should consider 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, and the desirability ofreleasing the accused on bail after they have F
    been convicted for committing the serious offence of murder. These
    aspects have not been considered by the High Court, while passing the
    impugned order.

         The order directing suspension of sentence and grant of bail is clearly G
    unsustainable and is set aside. We, therefore, set aside the order. Learned
    counsel for the accused-respondent stated that a fresh application shall be
    moved. In case it is done, the High Court, it goes without saying, shall
    consider the matter in accordance with law, in its proper perspective. We
    express no opinion in that regard.
                                                                                 H
    136                 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A         Learned counsel for the respondent vehemently urged that though
    application for suspension of execution of sentence and grant of bail was
    filed containing several reasons and not only absence of mis-use ofliberties
    during the period of parole, the High Court has not touched those aspects.

           The appeals are accordingly disposed of.
B
    R.P.                                                  Appeals disposed of.




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