Provided further that in cases where a convicted person is released on bail, it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.
(2) The power conferred by Section 389 of the Code on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.
(3) Where the convicted person satisfies the Court by whom he is convicted that he intends to present an appeal, the Court shall:
(i) Where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years; or
(ii) 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.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.
There is a distinction between bail and suspension of sentence. Suspension of sentence may mean conviction postponed or kept in abeyance during pendency of appeal. The suspension of the execution of the sentence is to be ordered only in exceptional circumstances where a special cause exists and not invariably whenever the appellant is released on bail. The word ‘execution’ related to both sentence and the order appealed against. Before the Court orders suspension of sentence an appeal must have properly filed.
When the High Court convicted the accused and he had no right of appeal to the Supreme Court, the High Court cannot suspend the sentence pending his application for special leave to appeal to Supreme Court. But in case where special leave to appeal has been granted to the accused by the Supreme Court, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail if there is inordinate delay in hearing appeal due to the inability of Court.
As the discretion in granting bail by the appellate Court is to be exercised judicially, the appellate Court should inter alia consider whether prima facie ground is disclosed for substantial doubt about the conviction; and also whether there is any likelihood of unreasonable delay in the disposal of the appeal.
In Navjot Singh Siddhu v. State of Punjab, it was held that in case of a request for suspension of conviction the appellant has to draw specific attention of Court to consequences that follow his conviction. The Court has to exercise this power under Section 389(1) in rare cases depending on special facts of the case.
In the present case appellant was a sitting Member of Parliament. He was convicted for offence committed much prior to his entry into politics. He resigned from membership of Parliament immediately after pronouncement of sentence of conviction and did not take benefit of clinging on to his office by merely filing appeal.
He was also desirous of getting fresh mandate from people. It was held that the evidence touching upon culpability of appellant prima facie appeared to be in his favour. Appellant by resigning from membership of Parliament has chosen a moral path and has set high standard in public life. Therefore, his conviction was liable to be suspended as injury that he would suffer if conviction is not suspended would be irreparable.
The High Court of Punjab and Haryana suspended the conviction pending appeal. No special reasons assigned by High Court while passing order. There was possible delay in disposal of appeal and existence of arguable points. It was not by itself be sufficient to grant suspension. High Court while passing the said order merely noticed some points which could be raised in appeal.
Grounds so taken do not suggest that respondent was proceeded against by State, mala fide or in bad faith. Order was thus passed on wrong, illegal premises. High Court has inherent power to modify its own interlocutory order when matter is yet to be finally disposed of Section 362 of the Cr. PC. is only operative in a situation where a final order has been passed. The Cr. PC. confers inherent powers in the High Court unlike the lower Courts. The Supreme Court see no reason as to why High Court cannot modify its own interlocutory order when the matter is yet to be finally disposed of. The Supreme Court is of the opinion that the High Court was not correct in its view and allowed the appeal.