Full Judgment Text
2025 INSC 519
NON- REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2101 OF 2025
(Arising out of SLP(Crl) No.18017 of 2024)
LILABEN … APPELLANT(S)
Versus
STATE OF GUJARAT & ANR. … RESPONDENT(S)
J U D G M E N T
SANJAY KAROL J.
Leave Granted
2. This appeal is at the instance of the mother of a minor,
who was a victim of sexual assault in connection with which a
First Information Report, bearing particulars -
Signature Not Verified
Digitally signed by
RAJNI MUKHI
Date: 2025.04.21
18:09:41 IST
Reason:
No.11215003220383, PS Anklav, District Anand, under
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 1 of 10
Sections 363, 366 of the Indian Penal Code, 1860 and Section
18 of the Protection of Children from Sexual Offences Act,
1
2012 , was registered. After investigation, the accused person,
who is Respondent No.2 before this Court, was convicted by the
2
Trial Court . The sentence handed down to him was as under :
“In the proceedings of Special POCSO case
No.66/2022, the Accused Jigresh Kumar alias Jigo
Rajubhai Padhiyar, Aged 23 years, Occupation Labour,
Residing at Asodar, Udu Faliyu, Taluka Anlav, District
Anand is held liable for the guilty of offences punishable
under Sections 363, 366(A), 376(3) of the IPC and Section
6 of the POCSO Act in connection with Crime Register
No.11215003220383/22, dated 4.8.22 registered with
Anklav Police Station under Section 235(1) of the Code of
Criminal Procedure.
It is hereby ordered that accused Jigresh Kumar alias
Jigo Rajubhai Padhiyar shall suffer rigorous imprisonment
for the term of three years and fine of Rs.1,000 (Rupees
One Thousand only) for the offence under Section 363 of
the I.P. Code under Section 235(2) of the Criminal
Procedure Code and in case of failure to pay amount of
fine, accuse shall suffer additional simple imprisonment of
one month.
It is hereby ordered that accused Jigresh Kumar alias
Jigo Rajubhai Padhiyar shall suffer rigorous imprisonment
for the term of five years and fine of Rs.2,000 (Rupees
Two Thousand only) for the offence under 366(A) of the
I.P. Code under Section 235(2) of the Criminal Procedure
Code and in case of failure to pay amount of fine, accuse
shall suffer additional simple imprisonment for two
months.
It is hereby ordered accused Jigresh Kumar alias
Jigo Rajubhai Padhiyar shall suffer rigorous imprisonment
1 ‘POCSO Act’
2 Special POCSO Judge and Additional Sessions Judge, Anand at Anand in Sp. POCSO
Case No. 66 of 2022
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 2 of 10
for the term of 20 years (twenty years) and fine of
Rs.5,000 (Rupees Five Thousand only) for the offence
under Section 6 of the POCSO Act and in case of failure to
pay amount of fine, accused shall suffer additional simple
imprisonment for three months.
The accused Jigresh Kumar alias Jigo Rajubhai
Padhiyar is hereby ordered to suffer imprisonment
concurrently and imprisonment suffered during the trial as
Kachcha prisoner is ordered to be set off. ......”
3. He approached the High Court seeking suspension of
3
sentence. The Learned Division Bench observed that the age
of the victim is in doubt. The records of the Panchayat and the
Birth Certificate were produced before the Trial Court;
however, the person who produced them, i.e., PW-7, had no
personal knowledge thereof, rendering the entry in the register
suspect without proof of the source of such information. The
sentence was, therefore, suspended pending the outcome of the
criminal appeal. He was directed to be released on bail on
furnishing bond of Rs. 10,000/- with one surety thereto subject
to the satisfaction of the Trial Court and on the condition that he
shall not leave India without permission of the High Court; that
he shall not enter Village Asodar, Taluka Anklav, District
Anand, for a period of two years, and that he shall not change
his address. In case he does, it was directed that both the
concerned police station and the High Court were to be
informed.
3 Criminal Misc Application (for Suspension of Sentence) No. 1 of 2024, in R/
Criminal Appeal No. 1434 of 2024.
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 3 of 10
4. Aggrieved by the suspension of sentence awarded to
Respondent No.2, this appeal has been preferred. The grounds
urged are that the facts considered by the High Court that the
victim had run away with Respondent No.2 and hence
commenced a physical relationship between the two is contrary
to the record and the findings of the Trial Court; instead, it is
submitted that the first time they met was in 2019 when the
victim was only eleven years of age in 2019, and he has been
harassing her since then. Further, it has been urged that the
finding regarding the proof of age of the victim being suspect, is
contrary to law. In this regard, reference is made to Sections 34
of the POCSO Act and 94 of the Juvenile Justice (Care and
Protection of Children) Act, 2015. Suspension of Sentence, it
was then submitted, is the exception and not the rule. For this
proposition, reliance is placed on Shivani Tyagi v. State of
4
U.P. .
5. We have heard Ms. Shahrukh Alam and Ms. Swati
Ghidiyal for the appellant and the State, and Mr. Varinder
Kumar Sharma for Respondent No.2.
6. Although various arguments stand advanced, in
particular, the different takes on facts by the High Court - our
analysis is only limited to the correctness and legality of the
4 2024 SCC OnLine SC 842
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 4 of 10
exercise of power under Section 389, Code of Criminal
5
Procedure, 1973 . The Section reads as under :
“ 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:
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 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.
(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 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 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
5 ‘CrPC’
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 5 of 10
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 time
during which he is so released shall be excluded in
computing the term for which he is so sentenced.”
7.
When an accused person applies to the Appellate Court
for suspension of sentence and succeeds in getting the Court to
make an order in his favour, what gets stayed is only the
execution of the sentence and nothing more. The sentence
remains and is only, not acted upon [See: K. Prabhakaran v. P.
6
Jayarajan ]. In doing so, there has to be a recording of
reasons, which, of course, can only be possible after due
7
consideration [See: State of Haryana v. Hasmat ; Vijay Kumar
8 9
v. Narendra and Ramji Prasad v. Rattan Kumar Jaiswal ].
The rationale behind such power is appropriately captured in the
words of Bhagwati J., (as his Lordship then was) in the case of
10
Kashmira Singh v. State of Punjab . The observations
(reproduced below) were made in the context of the sentence of
life imprisonment in connection with offences under Section
302 IPC, however, the same is relevant here as well, since the
sentence imposed is 20 years, i.e., greater than life
(2005) 1 SCC 754
6
7 (2004) 6 SCC 175
8 (2002) 9 SCC 364
9 (2002) 9 SCC 366
10 (1977) 4 SCC 291
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 6 of 10
imprisonment, which is, as unless otherwise specified, for a
period of 14 years. It was said -
“ 2. The appellant contends in this application that pending the
hearing of the appeal he should be released on bail. Now, the
practice in this Court as also in many of the High Courts has been
not to release on bail a person who has been sentenced to life
imprisonment for an offence under Section 302 of the Penal Code,
1860. The question is whether this practice should be departed
from and if so, in what circumstances. It is obvious that no practice
howsoever sanctified by usage and hallowed by time can be
allowed to prevail if it operates to cause injustice. Every practice of
the Court must find its ultimate justification in the interest of
justice. The practice not to release on bail a person who has been
sentenced to life imprisonment was evolved in the High Courts and
in this Court on the basis that once a person has been found guilty
and 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 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 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 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 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 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, therefore,
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 7 of 10
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 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.”
(Emphasis Supplied)
In the same vein, it would be useful to note the contours of this
power as discussed in the recent case of Afjal Ansari v. State of
11
U.P. . Surya Kant, J., speaking for the majority, held :
“ 19. This Court has on several occasions opined that there is no
reason to interpret Section 389(1) CrPC in a narrow manner, in the
context of a stay on an order of conviction, when there are
irreversible consequences. Undoubtedly, Ravikant S.
Patil v. Sarvabhouma S. Bagali [ Ravikant S. Patil v. Sarvabhouma
S. Bagali , (2007) 1 SCC 673, para 15 : (2007) 1 SCC (Cri) 417],
holds that an order granting a stay of conviction should not be the
rule but an exception and should be resorted to in rare cases
depending upon the facts of a case. However, where conviction, if
allowed to operate would lead to irreparable damage and where the
convict cannot be compensated in any monetary terms or
otherwise, if he is acquitted later on, that by itself carves out an
exceptional situation. Having applied the specific criteria outlined
hereinabove to the present factual matrix, it is our considered view
that the appellant's case warrants an order of stay on his award of
conviction, though partially.
x x x
25. Having said so, we hasten to hold that societal interest is an
equally important factor which ought to be zealously protected and
preserved by the courts. The literal construction of a provision such as
Section 389(1)CrPC may be beneficial to a convict but not at the cost
of legitimate public aspirations. It would thus be appropriate for the
courts to balance the interests of protecting the integrity of the
electoral process on one hand, while also ensuring that constituents
11 ( 2024) 2 SCC 187
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 8 of 10
are not bereft of their right to be represented, merely consequent to a
threshold opinion, which is open to further judicial scrutiny.”
8. In the present facts, Respondent No.2 has been convicted
by the Trial Court. In its conclusion necessarily then, the victim
had to be a minor. Whether or not the finding regarding the age
of the victim is correct or not, or the manner in which was
sought to be proved before the Trial Court, was in accordance
with the law or not, is a question that is open for consideration
in the jurisdiction under Section 374 CrPC as may be provided
therein, and not under Section 389 CrPC. Casting doubt upon a
finding returned by the Court below, when the same isn’t within
immediate purview, cannot be justified.
9. Till and such time, the finding of the Trial Court is
examined independently by the High Court, and proven to be
incorrect, it has to be taken as the position in law. So, at the
present moment, it is proven that Respondent No.2 has
committed the offences for which he stands convicted, subject
to confirmation or setting aside by the High Court in the
pending appeal. Considering this, and also the nature of offence
on one hand, and his age on the other, in the attending facts and
circumstances, we are of the considered view, that the High
Court ought not to have suspended the sentence as was imposed
by the Trial Court.
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 9 of 10
10. The judicious use of this power being the path to be
adopted by the Courts, as held in Angana v. State of
12
Rajasthan , and also the said exercise not being at the cost of
‘legitimate public aspirations’ which here would be, all things
considered, Respondent No.2 be confined in jail, both do not
justify the conclusion arrived at by the High Court. Respondent
No.2 is accordingly directed to surrender before the competent
authority forthwith. It is clarified that if the appeal pending
before the High Court is not heard in eighteen months, he shall
be at liberty to approach the High Court seeking regular bail.
11. With the aforementioned observations, which are limited
to the examination of the correctness of the order of suspension
of sentence, the appeal is allowed. Pending Applications, if any,
shall stand closed.
………….................……………J.
(SANJAY KAROL)
……………................……………J.
(PRASHANT KUMAR MISHRA)
New Delhi;
st
21 April, 2025.
12 (2009) 3 SCC 767
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 10 of 10
NON- REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2101 OF 2025
(Arising out of SLP(Crl) No.18017 of 2024)
LILABEN … APPELLANT(S)
Versus
STATE OF GUJARAT & ANR. … RESPONDENT(S)
J U D G M E N T
SANJAY KAROL J.
Leave Granted
2. This appeal is at the instance of the mother of a minor,
who was a victim of sexual assault in connection with which a
First Information Report, bearing particulars -
Signature Not Verified
Digitally signed by
RAJNI MUKHI
Date: 2025.04.21
18:09:41 IST
Reason:
No.11215003220383, PS Anklav, District Anand, under
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 1 of 10
Sections 363, 366 of the Indian Penal Code, 1860 and Section
18 of the Protection of Children from Sexual Offences Act,
1
2012 , was registered. After investigation, the accused person,
who is Respondent No.2 before this Court, was convicted by the
2
Trial Court . The sentence handed down to him was as under :
“In the proceedings of Special POCSO case
No.66/2022, the Accused Jigresh Kumar alias Jigo
Rajubhai Padhiyar, Aged 23 years, Occupation Labour,
Residing at Asodar, Udu Faliyu, Taluka Anlav, District
Anand is held liable for the guilty of offences punishable
under Sections 363, 366(A), 376(3) of the IPC and Section
6 of the POCSO Act in connection with Crime Register
No.11215003220383/22, dated 4.8.22 registered with
Anklav Police Station under Section 235(1) of the Code of
Criminal Procedure.
It is hereby ordered that accused Jigresh Kumar alias
Jigo Rajubhai Padhiyar shall suffer rigorous imprisonment
for the term of three years and fine of Rs.1,000 (Rupees
One Thousand only) for the offence under Section 363 of
the I.P. Code under Section 235(2) of the Criminal
Procedure Code and in case of failure to pay amount of
fine, accuse shall suffer additional simple imprisonment of
one month.
It is hereby ordered that accused Jigresh Kumar alias
Jigo Rajubhai Padhiyar shall suffer rigorous imprisonment
for the term of five years and fine of Rs.2,000 (Rupees
Two Thousand only) for the offence under 366(A) of the
I.P. Code under Section 235(2) of the Criminal Procedure
Code and in case of failure to pay amount of fine, accuse
shall suffer additional simple imprisonment for two
months.
It is hereby ordered accused Jigresh Kumar alias
Jigo Rajubhai Padhiyar shall suffer rigorous imprisonment
1 ‘POCSO Act’
2 Special POCSO Judge and Additional Sessions Judge, Anand at Anand in Sp. POCSO
Case No. 66 of 2022
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 2 of 10
for the term of 20 years (twenty years) and fine of
Rs.5,000 (Rupees Five Thousand only) for the offence
under Section 6 of the POCSO Act and in case of failure to
pay amount of fine, accused shall suffer additional simple
imprisonment for three months.
The accused Jigresh Kumar alias Jigo Rajubhai
Padhiyar is hereby ordered to suffer imprisonment
concurrently and imprisonment suffered during the trial as
Kachcha prisoner is ordered to be set off. ......”
3. He approached the High Court seeking suspension of
3
sentence. The Learned Division Bench observed that the age
of the victim is in doubt. The records of the Panchayat and the
Birth Certificate were produced before the Trial Court;
however, the person who produced them, i.e., PW-7, had no
personal knowledge thereof, rendering the entry in the register
suspect without proof of the source of such information. The
sentence was, therefore, suspended pending the outcome of the
criminal appeal. He was directed to be released on bail on
furnishing bond of Rs. 10,000/- with one surety thereto subject
to the satisfaction of the Trial Court and on the condition that he
shall not leave India without permission of the High Court; that
he shall not enter Village Asodar, Taluka Anklav, District
Anand, for a period of two years, and that he shall not change
his address. In case he does, it was directed that both the
concerned police station and the High Court were to be
informed.
3 Criminal Misc Application (for Suspension of Sentence) No. 1 of 2024, in R/
Criminal Appeal No. 1434 of 2024.
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 3 of 10
4. Aggrieved by the suspension of sentence awarded to
Respondent No.2, this appeal has been preferred. The grounds
urged are that the facts considered by the High Court that the
victim had run away with Respondent No.2 and hence
commenced a physical relationship between the two is contrary
to the record and the findings of the Trial Court; instead, it is
submitted that the first time they met was in 2019 when the
victim was only eleven years of age in 2019, and he has been
harassing her since then. Further, it has been urged that the
finding regarding the proof of age of the victim being suspect, is
contrary to law. In this regard, reference is made to Sections 34
of the POCSO Act and 94 of the Juvenile Justice (Care and
Protection of Children) Act, 2015. Suspension of Sentence, it
was then submitted, is the exception and not the rule. For this
proposition, reliance is placed on Shivani Tyagi v. State of
4
U.P. .
5. We have heard Ms. Shahrukh Alam and Ms. Swati
Ghidiyal for the appellant and the State, and Mr. Varinder
Kumar Sharma for Respondent No.2.
6. Although various arguments stand advanced, in
particular, the different takes on facts by the High Court - our
analysis is only limited to the correctness and legality of the
4 2024 SCC OnLine SC 842
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 4 of 10
exercise of power under Section 389, Code of Criminal
5
Procedure, 1973 . The Section reads as under :
“ 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:
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 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.
(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 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 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
5 ‘CrPC’
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 5 of 10
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 time
during which he is so released shall be excluded in
computing the term for which he is so sentenced.”
7.
When an accused person applies to the Appellate Court
for suspension of sentence and succeeds in getting the Court to
make an order in his favour, what gets stayed is only the
execution of the sentence and nothing more. The sentence
remains and is only, not acted upon [See: K. Prabhakaran v. P.
6
Jayarajan ]. In doing so, there has to be a recording of
reasons, which, of course, can only be possible after due
7
consideration [See: State of Haryana v. Hasmat ; Vijay Kumar
8 9
v. Narendra and Ramji Prasad v. Rattan Kumar Jaiswal ].
The rationale behind such power is appropriately captured in the
words of Bhagwati J., (as his Lordship then was) in the case of
10
Kashmira Singh v. State of Punjab . The observations
(reproduced below) were made in the context of the sentence of
life imprisonment in connection with offences under Section
302 IPC, however, the same is relevant here as well, since the
sentence imposed is 20 years, i.e., greater than life
(2005) 1 SCC 754
6
7 (2004) 6 SCC 175
8 (2002) 9 SCC 364
9 (2002) 9 SCC 366
10 (1977) 4 SCC 291
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 6 of 10
imprisonment, which is, as unless otherwise specified, for a
period of 14 years. It was said -
“ 2. The appellant contends in this application that pending the
hearing of the appeal he should be released on bail. Now, the
practice in this Court as also in many of the High Courts has been
not to release on bail a person who has been sentenced to life
imprisonment for an offence under Section 302 of the Penal Code,
1860. The question is whether this practice should be departed
from and if so, in what circumstances. It is obvious that no practice
howsoever sanctified by usage and hallowed by time can be
allowed to prevail if it operates to cause injustice. Every practice of
the Court must find its ultimate justification in the interest of
justice. The practice not to release on bail a person who has been
sentenced to life imprisonment was evolved in the High Courts and
in this Court on the basis that once a person has been found guilty
and 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 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 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 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 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 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, therefore,
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 7 of 10
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 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.”
(Emphasis Supplied)
In the same vein, it would be useful to note the contours of this
power as discussed in the recent case of Afjal Ansari v. State of
11
U.P. . Surya Kant, J., speaking for the majority, held :
“ 19. This Court has on several occasions opined that there is no
reason to interpret Section 389(1) CrPC in a narrow manner, in the
context of a stay on an order of conviction, when there are
irreversible consequences. Undoubtedly, Ravikant S.
Patil v. Sarvabhouma S. Bagali [ Ravikant S. Patil v. Sarvabhouma
S. Bagali , (2007) 1 SCC 673, para 15 : (2007) 1 SCC (Cri) 417],
holds that an order granting a stay of conviction should not be the
rule but an exception and should be resorted to in rare cases
depending upon the facts of a case. However, where conviction, if
allowed to operate would lead to irreparable damage and where the
convict cannot be compensated in any monetary terms or
otherwise, if he is acquitted later on, that by itself carves out an
exceptional situation. Having applied the specific criteria outlined
hereinabove to the present factual matrix, it is our considered view
that the appellant's case warrants an order of stay on his award of
conviction, though partially.
x x x
25. Having said so, we hasten to hold that societal interest is an
equally important factor which ought to be zealously protected and
preserved by the courts. The literal construction of a provision such as
Section 389(1)CrPC may be beneficial to a convict but not at the cost
of legitimate public aspirations. It would thus be appropriate for the
courts to balance the interests of protecting the integrity of the
electoral process on one hand, while also ensuring that constituents
11 ( 2024) 2 SCC 187
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 8 of 10
are not bereft of their right to be represented, merely consequent to a
threshold opinion, which is open to further judicial scrutiny.”
8. In the present facts, Respondent No.2 has been convicted
by the Trial Court. In its conclusion necessarily then, the victim
had to be a minor. Whether or not the finding regarding the age
of the victim is correct or not, or the manner in which was
sought to be proved before the Trial Court, was in accordance
with the law or not, is a question that is open for consideration
in the jurisdiction under Section 374 CrPC as may be provided
therein, and not under Section 389 CrPC. Casting doubt upon a
finding returned by the Court below, when the same isn’t within
immediate purview, cannot be justified.
9. Till and such time, the finding of the Trial Court is
examined independently by the High Court, and proven to be
incorrect, it has to be taken as the position in law. So, at the
present moment, it is proven that Respondent No.2 has
committed the offences for which he stands convicted, subject
to confirmation or setting aside by the High Court in the
pending appeal. Considering this, and also the nature of offence
on one hand, and his age on the other, in the attending facts and
circumstances, we are of the considered view, that the High
Court ought not to have suspended the sentence as was imposed
by the Trial Court.
Crl A. @ SLP(Crl) No. 18017 of 2024 Page 9 of 10
10. The judicious use of this power being the path to be
adopted by the Courts, as held in Angana v. State of
12
Rajasthan , and also the said exercise not being at the cost of
‘legitimate public aspirations’ which here would be, all things
considered, Respondent No.2 be confined in jail, both do not
justify the conclusion arrived at by the High Court. Respondent
No.2 is accordingly directed to surrender before the competent
authority forthwith. It is clarified that if the appeal pending
before the High Court is not heard in eighteen months, he shall
be at liberty to approach the High Court seeking regular bail.
11. With the aforementioned observations, which are limited
to the examination of the correctness of the order of suspension
of sentence, the appeal is allowed. Pending Applications, if any,
shall stand closed.
………….................……………J.
(SANJAY KAROL)
……………................……………J.
(PRASHANT KUMAR MISHRA)
New Delhi;
st
21 April, 2025.
12 (2009) 3 SCC 767
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