Whether the accused against whose acquittal an appeal has been filed can be arrested by the Appellate Court?

Question: Whether the accused against whose acquittal an appeal has been filed can be arrested by the Appellate Court?

Find the answer only on Legal Bites. [Whether the accused against whose acquittal an appeal has been filed can be arrested by the Appellate Court?]

Answer

An appellate court can grant suspension of Sentence under the mandate of Section 389 of CrPC. This section basically provides a statutory remedy where the accused gets bail even after conviction. The powers of the appellant court are not always discretionary, and it has to act within its ambit and must act in a just and fair manner. In order to understand the appellate court’s power with respect to the situational problem, it is pertinent to have a glance at section 389 of the Code of Criminal Procedure.

As per Section 389 of the Code of Criminal Procedure, there is a suspension of sentence pending the appeal, and the appellant must be released on bail. The sub-section (1) to this section provides that:

“(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.”

Sub-section (3) is in contradistinction to sub-section (1) makes it obligatory upon the Court to grant bail to the person convicted pending presentation of an appeal if he satisfies the conditions laid down in clauses (i) and (ii) of the said sub-section i.e.:

• where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
• 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 long as he is so released on bail, be deemed to be suspended.

If such conditions are fulfilled, the Court has no option but to grant bail. This section applies only to a case where there is a right of appeal.

The Supreme Court has also observed in KC Sareen v. CBI, (2001) 6 SCC 584, that though the power to suspend an order of conviction, apart from the order of sentence, is not alien to section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal to challenge his conviction, the Court should not suspend the operation of the order of conviction. The Court has a duty to look at all the aspects, including the ramification of keeping such convictions in abeyance.

In State of Rajasthan v. Salman Salim Khan, AIR 2015 SC 2443, the Supreme Court held that the power of suspension of conviction shall be used only in exceptional circumstances where failure to stay conviction would lead to injustice and irreversible consequences and thus of some foreign country is not granting permission to visit said country on the ground that accused has been convicted of an offence and has been sentenced under Indian Law, said order cannot be a ground to stay order of conviction.

Therefore, by virtue of section 389 of the code, the accused against whose acquittal appeal has been filed cannot be arrested by the Appellate Court or remain in confinement.

---

Important Mains/Long Questions for Judiciary, APO & University Exams

1. CRPC Mains Questions Series Part I: Important Questions
2. CRPC Mains Questions Series Part II: Important Questions
3. CRPC Mains Questions Series Part III: Important Questions
4. CRPC Mains Questions Series Part IV: Important Questions
5. CRPC Mains Questions Series Part V: Important Questions
6. CRPC Mains Questions Series Part VI: Important Questions
7. CRPC Mains Questions Series Part VII: Important Questions
8. CRPC Mains Questions Series Part VIII: Important Questions
9. CRPC Mains Questions Series Part IX: Important Questions
10. CRPC Mains Questions Series Part X: Important Questions
11. CRPC Mains Questions Series Part XI: Important Questions