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section 389 of crpc

STAY OF CONVICTION UNDER 389 :-




Supreme Court of India

Navjot Singh Sidhu vs State Of Punjab & Anr on 23 January, 2007


whether there is any provision which may enable the Court to suspend the order of conviction as normally what is suspended is the execution of the sentence. Sub-section (1) of Section 389 says 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 or bail, or on his own bond. This Sub-section confers power not only to suspend the execution of sentence and to grant bail but also to suspend the operation of the order appealed against which means the order of conviction.


The aforesaid view been reiterated and followed by a Three Judge Bench in Ravi Kant S. Patil v. Sarvabhouma S. Bagali JT 2006 (1) SC 578. After referring to the decisions on the issue, viz., State of Tamil Nadu v. A. Jaganathan (1996) 5 SCC 329, K.C. Sareen v. C.B.I., Chandigarh (2001) 6 SCC 584, B.R. Kapur v. State of T.N. & Anr. (2001) 7 SCC 231 and State of Maharashtra v. Gajanan & Anr. (2003) 12 SCC 432, this Court concluded (para 12.5 of the report) :



"All these decisions, while recognizing the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences."



It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative.




The legal position is, therefore, clear that an appellate Court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the attention of the appellate Court to the consequences that may arise if the conviction is not stayed. Unless the attention of the Court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. Further, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case.


(However in conviction on charges of corruption and in that context it was observed that when conviction is on a corruption charge, it would be a sublime public policy that the convicted person is kept under disability of the conviction instead of keeping the sentence of imprisonment in abeyance till the disposal of the appeal. In such cases it is obvious that it would be highly improper to suspend the order of conviction of a public servant which would enable him to occupy the same office which he misused.)





In K.C.Sareen v. CBI, Chandigarh, [2001] 6 SCC 584, it was held 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. It was further held that merely because the convicted person files an appeal to challenge his conviction, the court should not suspend the operation of the conviction and the court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance. The Bench also noted that the evil of corruption has reached a monstrous dimension. While declining the prayer of the appellant for grant of an order of stay of conviction, the Bench observed that when conviction is on a corruption charge against a public servant, the appellate court should not suspend the order of conviction during the pendency of the appeal, even if the sentence of imprisonment is suspended. The Bench further observed that it would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision. These observations would equally apply when a prayer for stay of order of conviction is made so as to remove the disability to contest an election except, as already noted, in a very exceptional and rare case.



In the cited case of Union of India v. Atar Singh, [2003] 12 SCC 434, it was noted that the High Court had mechanically passed the order by suspending the conviction and the discretion ought not to have been exercised by the High Court by passing such an order suspending the conviction.


All these decisions, while recognising the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences.








In State of Tamil Nadu v. A.Jaganathan, [1996] 5 SCC 329, the State challenged the order of the High Court which had granted suspension of the conviction as also the sentenceThis Court held that the principle laid down was that conviction and sentence can both be suspended only if non-grant of suspension of conviction would result in damage which could not be undone if ultimately the appeal/revision was allowed.

On facts, it was found that even if stay of conviction was not granted, no prejudice would be caused to the convicted person, having regard to the fact that when the revisions against the conviction and sentences were ultimately allowed, the damage, if any, caused to the respondents therein with regard to payment of stipends etc. could well be revived and made good to the them. This Court noted that if such trifling matters involving slight disadvantage to the convicted person were to be taken into consideration, every conviction would have to be suspended pending appeal or revision. It was further noted that the High Court did not consider at all the moral conduct of the respondents inasmuch as the respondent Jaganathan who was a Police Inspector had been convicted under Sections 392, 218 and 466 IPC, while the other respondents who were also public servants had been convicted under the provision of Prevention of Corruption Act. Under those circumstances, the discretion exercised by the High Court in suspending the conviction was reversed.












Supreme Court of India

Shyam Narain Pandey vs State Of U.P on 22 July, 2014


It has been consistently held by this Court that unless there are exceptional circumstances, the appellate court shall not stay the conviction, though the sentence may be suspended. There is no hard and fast rule or guidelines as to what are those exceptional circumstances.

It may be noticed that even for the suspension of the sentence, the court has to record the reasons in writing under Section 389(1) Cr.PC. Couple of provisos were added under Section 389(1) Cr.PC pursuant to the recommendations made by the Law Commission of India and observations of this Court in various judgments, as per Act 25 of 2005. It was regarding the release on bail of a convict where the sentence is of death or life imprisonment or of a period not less than ten years. If the appellate court is inclined to consider release of a convict of such offences, the public prosecutor has to be given an opportunity for showing cause in writing against such release. This is also an indication as to the seriousness of such offences and circumspection which the court should have while passing the order on stay of conviction. Similar is the case with offences involving moral turpitude. If the convict is involved in crimes which are so outrageous and yet beyond suspension of sentence, if the conviction also is stayed, it would have serious impact on the public perception on the integrity institution. Such orders definitely will shake the public confidence in judiciary. That is why, it has been cautioned time and again that the court should be very wary in staying the conviction especially in the types of cases referred to above and it shall be done only in very rare and exceptional cases of irreparable injury coupled with irreversible consequences resulting in injustice. ( it primarily relied on Ravikant S. Patil vs Sarvabhouma S. Bagali judgment of Supreme court )







Revision of bail


Supreme Court of India

Amar Nath And Others vs State Of Haryana & Others on 29 July, 1977


Where a revision to the High Court against the order of

the Subordinate Judge is expressly barred under s. 397(2)

the inherent powers contained in s. 482 would not be

available to defeat the bar contained in s. 397(2). Section

482 contains,inherent powers of the Court and does not

confer any new powers but preserves the powers which the

High Court already possessed. A harmonious construction of

ss. 397 and 482 would lead to the conclusion that, where a

particular order is expressly barred under s. 397(2) and

cannotbe the subject of revision by the High court, the

provisions of s. 482 would not apply. It is well settled

that the inherent powers of the Court can ordinarily be

exercised when there is no express provision on the subject-

matter. Where there is an express provision, barring a

particular remedy, the Court cannot resort to the exercise

of inherent powers.

The term "interlocutory order" is a term of well-known

legal significance which has been used in various statutes.

Decided cases have laid down that interlocutory orders to be

appealable must be those which decide the rights and

liabilities of the parties concerning a particular aspect.

The term "interlocutory order" in s. 397(2) has, been used

in a restricted sense and not in any broad and artistic

sense.It merely denotes orders of a purely interim or

temporary nature which do not decide or touch the important

rights or liabilities of the parties. Any order which

substantially affects the right of the accused, or decides

certain rights of the parties cannot be said to be an

interlocutory order so as to bar a revision to the High

Court against that order, because that would be against the

very object which formed the basis for insertion of this

provision in s. 397 of the Code. For instance, orders

summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to

interlocutory orders against which no revision would lie

under s. 397(2) of the Code. But orders which are matters

of moment and which affect or adjudicate the rights of the

accused or a particular aspect of the trial cannot be said

to be interlocutory orders so as to be outside the purview

of the revisional jurisdiction of the High Court.



Supreme Court of India

State Rep. By Inspector Of Police & ... vs N.M.T. Joy Immaculate on 5 May, 2004

Amar Nath v. State of Haryana 1977 (4) SCC 137, Madhu Limaye v. State of Maharashtra AIR 1978 SC 47 and V.C. Shukla v. State AIR 1980 SC 962 held that in deciding whether an order challenged is an interlocutory or not, as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage. The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings. If so, any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. It was further held that as in the facts of the case, if the objections raised by accused were upheld, the entire prosecution proceedings would have been terminated, the order was not an interlocutory order and consequently it was revisable.




State of Gujarat Vs. Salimbhai Abdulgaffar Shaikh & Ors [2003] Insc 436 (8 September 2003)


Normally an order granting or refusing bail is an interlocutory order and no appeal would lie.


The High Court has also invoked powers under Section 482 Cr.P.C. while granting bail to the respondents. Section 482 Cr.P.C. saves the inherent power of the High Court. The High Court possesses the inherent powers to be exercised ex debito justitiae to do the real and substantial justice for the administration of which alone Courts exist. The power has to be exercised to prevent abuse of the process of the Court or to otherwise secure the ends of justice. But this power cannot be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party. (See Madhu Limaye v. State of Maharashtra AIR 1978 SC 47). There being a specific provision for grant of bail, the High Court clearly erred in taking recourse to Section 482 Cr.P.C. while enlarging the respondents on bail.


In support of this application it is further contended that the law is very well settled, and an order of refusal of bail is an interlocutory order as decided in more than one judgments of this Hon’ble Court. Reliance is placed on the judgment of Supreme Court in Usmanbhai Dawoodbhai Memon and Ors. v. State of Gujarat (per A.P. Sen, J) reported in AIR 1988 SC 922.










Supreme Court of India

Amar Nath And Others vs State Of Haryana & Others on 29 July, 1977


"interlocutory order" is a term of well-known legal significance and does not present any serious diffident. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide 'the rights and liabilities of the parties concerning a particular aspect. It seems to, us that the term "interlocutory order" in s. 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense.It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights, or the liabilities of the parties. Any order which substantially affects the, right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in s. 397 of the, 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under s. 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be. outside the purview of the revisional jurisdiction of the High Court. In Central Bank of India v. Gokal Chand(1) this Court while describing the incidents of an interlocutory order, observed as follows "In the context of s. 38(1), the words "every order of the Controller made under this Act", though very wide, do not include interlocutory orders, which are. merely procedural (1) A.I.R. 1967 S.C. 799, 800.and do not affect the rights or liabilities of the parties. In a pending proceeding the Controller, may pass many interlocutory orders under ss. 36 and 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps taken towards the final adjudication and for assisting the parties in the prosecution of their case in the pending proceeding; they regulate the procedure only 'and do not affect any right or liability of the parties."


The aforesaid decision clearly illustrates the nature and incidents of 'an interlocutory order and the incidents given by this Court constitute sufficient guidelines to interpret the connotation of the. word "interlocutory order" as appearing in sub-s. (2) of s. 397 of the 1973 Code. Similarly in a later case in Mohan Lal Magan Lal Thacker v. State of Gujarat(1) this Court pointed out that the finality of an order could not be judged by co-relating that order with the controversy in the complaint. The fact that the controversy still remained alive was irrelevant. In that case this Court held that even though it was an interlocutory order, the order was a final order. Similary in Baldevdas v. Filmistan Distributors (India) Pvt. Ltd. (2) while interpreting the import of the words "case decided" appearing in S. 115 of the. Code of Civil Procedure, this Court observed as follows:

"A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy;"


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