CrPC 389

Judgement pronounced 14.8.2020

reported in SC e@Journal 15.8.2020


CrPC, Section 389 – CrPC, Section 439 – Bail - There is a difference between grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under Section 389 of the CrPC and grant of bail, post conviction – Under Section 439 there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception- However, in case of post conviction bail, under Section 389, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise.

Held, Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the Cr.P.C. #2020 SCeJ 1265[Para 36]


(ii) CrPC, Section 389 – Suspension of sentence  - In considering an application for suspension of sentence, the Appellate Court is only to examine if there is such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous - Where there is evidence that has been considered by the Trial Court, it is not open to a Court considering application under Section 389 to re-assess and/or re-analyze the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail. #2020 SCeJ 1265 [Para 39]



(iii) CrPC, Section 389 – Penal Code, Section 304B  - Dowry Prohibition (Amendment) Act, 1986 (Act 43 of 1986) -  Suicide – Bail – Release of during appeal -   Failure to lodge an FIR complaining of dowry and harassment before the death of the victim, is in our considered view, inconsequential -  The parents and other family members of the victim obviously would not want to precipitate a complete break down of the marriage by lodging an FIR against husband and his parents, while the victim was alive -  It is nobody's case that the death of the victim was accidental or natural - There is evidence of demand of dowry -Death took place within 7 or 8 months and there is oral evidence of the parents of cruelty and torture immediately preceding the death - There is also evidence of payment of Rs. 2,50,000/- to the Accused by the victim's brother -  No apparent and/or obvious illegality or error in the judgment of the Sessions Court, to call for suspension of execution of the sentence was made out -  High Court could not have casually have suspended the execution of the sentence and granted bail to the accused without recording any reasons, with the casual observation of force in the argument made on behalf of the Appellant by ignoring the evidence relied upon by the Sessions Court, including the oral evidence of the victim's parents -  From the evidence of the Prosecution witnesses, it transpires that the Appellant had spent money beyond his financial capacity, at the wedding of the victim and had even gifted an I-10 car -  The hapless parents were hoping against hope that there would be an amicable settlement. #2020 SCeJ 1265 [Para 38, 41, 42]

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