State the procedure relating to suspension of sentence and release of the appellant pending the appeal?

Question: State the procedure relating to suspension of sentence and release of the appellant pending the appeal?

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Answer

Section 389 of the Code of Criminal Procedure is entitled “suspension of sentence pending the appeal, the release of appellant on bail“. Sub-section (1) then provides that 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. On a plain reading of sub-section (1) of Section 389 of the Code it becomes clear that pending an appeal by a convicted person, the Appellate Court may order that the execution of the sentence or order appealed against be suspended.

Once a person has been held guilty of having committed an offence, he cannot claim suspension of sentence pending his appeal and is consequently released on bail as a matter of right. The power to enlarge bail after conviction, though discretionary, is not so wide as is under Chapter XXXIII relating to bails before conviction.

By passing an order under Section 389 of CrPC, the sentence is not set aside but is merely suspended, i.e. kept in abeyance, and the appellant remains a convict for all practical purposes. The indulgence is shown because the appellate court feels that the guilt is required to be prejudged, and pending such adjudication, if the appellant has served out the sentence or a substantial part of it, in the event of his ultimate acquittal, the suffering may become irreversible. That is why the suspension of the sentence is to be accompanied by reasons to be recorded by the Court in writing. Such suspension of sentence is intended to last ordinarily until adjudication of appeal on merits.

In other words, it is an interim order, temporary in nature as opposed to such orders with which finality is attached. In the very nature of the jurisdiction conferred by Section 389, CrPC it is inherent that the order may be recalled at any time, provided that there may be reasons for doing so and in a judicial manner. The power to create includes the power to destroy and also the power to alter what is created unless the law vesting the power is accompanied by a limitation to the contrary, either express or necessarily to be implied, looking to the purpose and scope of the power conferred. [State of Madhya Pradesh v. Chintaman And Ors. 1989 CriLJ 163]

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