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Analysis
2. We have heard Mr. K.L. Janjani, learned counsel for the appellant, Ms. Sansriti Pathak, learned Additional Advocate General for the first Respondent – State of Rajasthan, and Mr. Namit Saxena, learned counsel for Respondent No.2.
Appeal by father of prosecutrix challenging the suspension of sentence ordered by High Court
3. The present Appeal by the father of the prosecutrix challenges the order of the High Court of Judicature for Rajasthan, Bench at Jaipur dated 03.09.2024 in S.B. Criminal Misc. Suspension of Sentence Application (Appeal) No. 852 of 2024 in S.B. Criminal Appeal No. 397 of 2024. By the said order, the sentence imposed on Respondent No.2 herein was suspended till the final disposal of the appeal and Respondent No.2 was directed to be released on bail, subject to certain conditions imposed on him by Special Judge (POCSO) Karauli (Rajasthan) by her judgment and order dated 07.02.2024.
4. Respondent No.2 has been found guilty for the offences punishable under Section 3/4 (2) of the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’) as well as under Section 376(3) of the Indian Penal Code, 1860. Respondent No.2 was sentenced under Section 3/4 (2) of POCSO Act and no sentence was imposed under Section 376(3) in view of Section 42 of POCSO Act. Insofar as Section 3/4 (2) of POCSO Act was concerned, Respondent No.2 was sentenced to undergo 20 years rigorous imprisonment and was ordered to pay a fine of Rs. 50,000/-. In default of payment of fine, Respondent No.2 was directed to undergo additional 2 years rigorous imprisonment. Respondent No.2 had undergone imprisonment for a period of 1 year and 3 months after which his sentence was suspended by the High Court.
Hon’ble High Court’s order
5. The High Court while suspending the sentence, after setting out the contention of the respective parties, has recorded only the following reasons before enlarging Respondent No.2 on bail:
“5. Upon a consideration of the arguments advanced on behalf of the appellant as well as learned State Counsel and counsel for the complainant and having regard to the facts and circumstances as available on the record and especially the fact that no sign of sexual assault was found by the medical expert on the body of the prosecutrix; no FSL as well as DNA report is available on record; despite the availability of washrooms in the house, it is little difficult to digest that prosecutrix will go out for toilet; there is no prospect of being heard and disposal of this appeal in near future, this Court is of the opinion that the appellant has available to him strong grounds to assail the impugned judgment of conviction and sentence. Thus, it is a fit case for suspending the sentences awarded to the applicant-appellant during pendency of the instant appeal.”
After considering the Trial court judgment paragraphs the Hon’ble Supreme Court has held as follows.
Section 389 Cr.P.C explained
10. One would have expected the High Court hearing an application under Section 389 of Cr.P.C. for suspension of sentence to examine whether prima facie there was anything palpable on the record to indicate if the accused had a fair chance of overturning the conviction. In Omprakash Sahni v. Jai Shankar Chaudhary and Another, this Court had the following to say on the scope of Section 389 of the Cr.P.C.
“23. The principle underlying the theory of criminal jurisprudence in our country is that an accused is presumed to be innocent till he is held guilty by a court of competent jurisdiction. Once the accused is held guilty, the presumption of innocence gets erased. In the same manner, if the accused is acquitted, then the presumption of innocence gets further fortified.
24. From perusal of Section 389 CrPC, it is evident that save and except the matter falling under the category of sub-section (3) neither any specific principle of law is laid down nor any criteria has been fixed for consideration of the prayer of the convict and further, having a judgment of conviction erasing the presumption leaning in favour of the accused regarding innocence till contrary recorded by the court of competent jurisdiction, and in the aforesaid background, there happens to be a fine distinction between the prayer for bail at the pre-conviction as well as the post-conviction stage viz. Sections 437, 438, 439 and 389(1) CrPC.
33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the trial court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the abovesaid question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The appellate court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach.”
12. Taking into account the fact that the High Court has not adverted to any of the relevant factors for considering the case for suspension under Section 389 and keeping in mind the antecedents, we are of the opinion that High Court was not justified in suspending the sentence.
Setting aside of bail by higher court is different from cancellation of bail setting aside of bail is concerned with justifiability and soundness of order granting bail
13. In the affidavit filed before us, Respondent No.2 has contended that there is no allegation of post-bail misconduct or breach of conditions warranting the setting aside of the bail order. The submission is fallacious. There is clear distinction in law between setting aside of the bail by a higher Court and cancellation of the bail. While cancellation of bail is due to some supervening circumstances like breach of bail condition, setting aside of the bail is concerned not with the breach of condition but with the justifiability and soundness of the order granting bail (See Neeru Yadav v. State of Uttar Pradesh and Another).
Using murder judgment context in POCSO case
17. In Vijay Kumar v. Narendra and Others this Court observed as follows:
“10. On perusal of the record and on consideration of the submissions made by the learned counsel appearing for the parties, we are of the view that in the context of the facts and circumstances of the case the High Court was in error in passing the order releasing the respondents on bail. The High Court has neither given any reason nor has indicated any exceptional circumstance for granting bail to the respondents. In the above circumstances, it is difficult for us to even surmise the circumstance which prompted the learned Single Judge to consider the accused persons to be entitled to the discretionary relief of bail pending the appeal. The principle is well settled that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the court should consider the relevant factors like the nature of the accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. Our attention has not been drawn to any material which would show that the learned Single Judge took into consideration the relevant factors while passing the bail order. We refrain ourselves from making any observation touching on merits of the case lest it may prejudice any of the parties. Suffice it to state that we do not consider this a fit case for grant of bail to the respondents during pendency of the appeal filed by them.”
Though said in the context of Section 302 IPC, it applies with equal force to a case of the present nature under the POCSO Act, also.
Conclusion
Hon’ble Supreme Court set aside suspension of sentence
19. In view of what has been stated hereinabove, we set aside the order of the High Court dated 03.09.2024 in S.B. Criminal Misc. Suspension of Sentence Application (Appeal) No. 852 of 2024 in S.B. Criminal Appeal No. 397 of 2024. The appeal is allowed. Respondent No.2 is directed to surrender before the Court of Special Judge (POCSO) Karauli, (Rajasthan), on or before 30th August 2025, failing which, the State shall take Respondent No.2 into custody.
Judgments cited or involved
Omprakash Sahni vs. Jai Shankar Chaudhary & Others (2023) 6 SCC 123
- Context: Extensively quoted regarding the “palpable error” standard.
- Principle: Once an accused is convicted, the presumption of innocence is erased. Suspension of sentence should only be granted if there is a “palpable” or “gross” error apparent on the record that indicates a fair chance of acquittal.
Vijay Kumar vs. Narendra and Others (2002) 9 SCC 364
- Context: Cited to discuss the factors for granting bail post-conviction in serious crimes.
- Principle: In heinous crimes like murder (and by extension POCSO), the court must consider the gravity of the offense and the manner of commission. Suspension should be the exception, not the rule.
Neeru Yadav vs. State of Uttar Pradesh (2014) 16 SCC 508 / (2016) 15 SCC 422
- Context: Used to differentiate between the “cancellation of bail” and “setting aside a bail order.”
- Principle: A higher court can set aside a bail order if the original court failed to consider relevant material (like criminal antecedents), regardless of whether the accused breached any bail conditions.
Statutory Provisions Referenced
- Sections 29 and 30 of the POCSO Act, 2012: Regarding the statutory presumption of guilt.
- Section 389 of the Cr.P.C.: The primary provision under which the High Court had granted the suspension.
The Impugned High Court Order
- S.B. Criminal Misc. Suspension of Sentence Application (Appeal) No. 852 of 2024 (Dated 03.09.2024): This is the specific Rajasthan High Court order that was challenged and eventually set aside by the Supreme Court in this judgment.
English (US) ·