1. The question posed in this proceeding is whether a person convicted for murder and sentenced to imprisonment for life can be released on bail after suspending the sentence and if so under what circumstances. Recently there has been a spurt of applications for suspension of sentence and release of convicts on bail in similar cases. We therefore propose to discuss the law and practice relating to the matter in some detail.

2. The provision of law relating to suspension of sentence pending appeal by a convicted person is contained in S.389 of the Code of Criminal Procedure. S.389 (1) empowers the appellate Court, for reasons to be recorded in writing, to direct that the execution of the sentence or order appealed against be suspended and that the appellant if in confinement be released on bail, or on his own bond. S.389 (4) states that when the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is to be released shall be excluded in computing the term for which he is so sentenced. In view of the reference to imprisonment for life in S.389 (4), it is clear that there is no legal bar against suspending of sentence pending disposal of an appeal by a person convicted of murder and sentenced to imprisonment for life

3. But, at the same time, it is clear that a person so convicted cannot, as of right, claim for suspension of sentence in view of the language used in sub-section (1). Under that provision it is for the appellate Court to decide whether execution of the sentence should be suspended and in cases where the Court is inclined to suspend it has to give its reasons. This is so irrespective of the fact whether the conviction is for murder or for a lesser offence. However, in practice the discretion is rarely exercised in favour of the accused in cases where the conviction is for murder and the sentence is imprisonment for life.

4. The question as to whether an accused sentenced to imprisonment for life could be released on bail pending disposal of his appeal by Special Leave to the Supreme Court was considered in the decision in Kashmira Singh v. State of Punjab, AIR. 1977 SC. 2147 [LQ/SC/1977/261] . The following passage in the above judgment will be of guidance in arriving at a decision in this case:

The appellant contends in this application that pending the hearing of the appeal he should be released on bail. Now, the practice in this Court as also in many of the High Courts has been not to release on bail a person who has been sentenced to life imprisonment for an offence under S.302 of the Indian Penal Code The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him."

The appeal in the above case was filed in the year 1974. The application for suspension of sentence was filed in 1976 and it was decided in September, 1977. It was noted that the appellant was in jail for four and a half years, and that in the normal course, the chances of his appeal being heard by the Supreme Court within a period of the next two years were remote. Under such circumstances the Supreme Court held, that it would be unjust to detain him in jail till the hearing of the appeal Suspension of the sentence was accordingly given.

5. In another case, Narasimhulu v. Public Prosecutor, A. P., AIR. 1978 SC. 429, [LQ/SC/1977/333] the Supreme Court had occasion to consider the principles which should guide the granting of bail under Ss 436 and 437 of the Code of Criminal Procedure. That was also a case where the Supreme Court granted certificate for filing an appeal. The Supreme Court held, that in granting the prayer the Court should consider the nature of the evidence and also whether the course of justice would be thwarted by the releasing of the accused on bail. The nature of the accusation, the nature of the evidence in support of the accusation, the severity of the punishment which the conviction would entail and whether the sureties are independent or indemnified by the accused person are relevant considerations in granting bail. The following observations are pertinent -

"when the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the Court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erie J , indicated, when the crime charged (of which a conviction has been sustained) is of the highest magnitude and the punishment of it assigned by law is of extreme severity, the court may reasonably presume, some evidence warranting that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged."

6. The question again came for consideration of the Supreme Court in Babu Singh v. State of U.P., AIR. 1978 SC. 527 [LQ/SC/1978/30] . That was also a case of bail before the Supreme Court. The question was whether during the pendency of the appeal before the Supreme Court the appellants were entitled to bail. In that particular case the appellants were acquitted by the Sessions Judge. The State appealed against the acquittal and the High Court convicted the appellants and sentenced them to imprisonment for life. During the pendency of the appeal before the High Court the State did not press for their custody. There was nothing to indicate that during the long period of five years when appellants had been out of prison pending appeal before High Court there had been any conduct on their part suggestive of disturbing the peace of the locality threatening any one in the Village or otherwise thwarting the life of the community or the course of justice. The Supreme Court held that under such circumstances the appellants were entitled to bail with certain safeguards. Special reference has been made in the case to the decision in Kashmira Singh v. The State of Punjab, A1R. 1977 SC. 2147, [LQ/SC/1977/261] and the reasoning thereunder has been adopted as a ground for allowing the prayer for suspension of sentence.

7. Another case, which is also worthy of reference, is the one reported in Shaikh Karim v. Emperor, AIR. 1921 Nagpur 279. The Court had to consider in that case whether bail could be granted to a person, who has been actually convicted. The Court observed,

"we are here, however, concerned with men who have been actually convicted and in those circumstances the principle which will necessarily guide this Court will be whether there are reasonable grounds for believing that the applicants committed the offences in question."

8. Reference may in this connection be made to S.436 and 437. S.436 deals with the question as to when bail can be taken when the offence involved is something other than a non-bailable offence. In such cases, the ordinary rule is that the Court should grant bail. S.437 deals with cases of bail in non-bailable offences. Sub-section (I) of that section empowers a Court other than the High Court or the Court of Session to release on bail a person accused of a non-bailable offence but directs that he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Proviso to the sub-section states that the Court may direct any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail. S.439 (1) deals with the special powers of High Court or Court of Session regarding bail. The restriction in granting bail, in the case of a person accused of an offence punishable with death or imprisonment for life, is not specifically mentioned therein. This does not however mean that the gravity of the offence charged need not be taken into account, when a petition for bail comes before the High Court and the Court of Session. The Supreme Court had occasion to refer to the change of language in S.439 (1) and to consider whether S.439 (1) confers unrestricted powers on the High Court and the Court of Session in the matter of granting bail and whether the restrictions mentioned in S.437 (1) are applicable in that connection, in the decision Gurcharan Singh v. State (Delhi Administration), (1978 SCC. (Crl) 41). The following passage in that judgment deals with the point:

"From the above change of language it is difficult to reach a conclusion that the Sessions Judge or the High Court need not even bear in mind the guidelines which the Magistrate has necessarily to follow in considering bail of an accused. It is not possible to hold that the Sessions Judge or the High Court, certainly enjoying wide powers, will be oblivious of the considerations of the likelihood of the accused being guilty of an offence punishable with death or imprisonment for life. Since the Sessions Judge or the High Court will be approached by an accused only after refusal of bail by the Magistrate, it is not possible to hold that the mandate of the law of bail under S.437. Cr. P. C. for the Magistrate will be ignored by the High Court or by the Sessions Judge."

9. It follows that in disposing of an application for bail the High Court and the Court of Sessions are obliged to consider whether there are reasonable grounds for believing that the accused has been guilty of an offence, punishable with death or imprisonment for life. If that be so, the identical consideration should weigh with the High Court in the matter of suspension of sentence and grant of bail after the accused is found guilty of an offence punishable with death or imprisonment for life and is convicted for such an offence. It is true that S.389 does not specify the grounds on which suspension of sentence can be allowed. But the very fact that the section directs that reasons should be stated before suspension is allowed shows that suspension of sentence is not to be taken as a matter of course. Considerations which should weigh with the Court in the matter of granting bail pending trial should mutatis mutandis apply and should not be ignored while disposing of as application for suspension of sentence after a conviction is entered. In a case where the Sessions Judge has after taking evidence entered a conviction for murder, it should not be assumed that there are no reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life. The presumption should be otherwise. This explains the practice which has grown upon the High Courts and which has been given recognition of in Kashmira Singh v. State of Punjab, AIR 1977 SC. 2147 [LQ/SC/1977/261] , already referred to, of not releasing on bail a person who has been sentenced to imprisonment for life for an offence under S 302 of the Indian Penal Code. Deviation from the practice is justified only in extreme and exceptional cases, which we do not want to enumerate. Suffice to say that the petitioner before us has not made out a case for suspension of sentence. His is not a case where it can be said that the conviction is prima facie illegal or there is no evidence at all to sustain it a discussion of the evidence is not called upon at this stage. There is also no scope for complaint that there is undue delay in the matter of disposal of criminal appeals so far as this Court is concerned.

10. It was argued on behalf of the petitioner that a different approach should be made to the question in view of the introduction of S.433-A to the Code of Criminal Procedure as per Act 45 of 1978. S.433-A reads:

"433A. Restriction on powers of remission or commutation in certain cases. Notwithstanding anything contained in S.432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under S.433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment."

11. The section no doubt puts a bar on the power conferred on the Government under S.432 of the Code of Criminal Procedure to suspend or remit the sentence in cases where a person is to suffer a sentence of imprisonment for life either as awarded by the Court or commuted under S.433, so as to reduce the period of imprisonment to less than fourteen years. But S.433-A does not affect the power of commuting sentences conferred on the appropriate Government under S.54 and 55 of the Indian Penal Code and S.433 of the Code of Criminal Procedure, except to the extent that in a case where a sentence of death is commuted to one for imprisonment for life the person concerned should not be released from prison unless he had served at least fourteen years of imprisonment. In the absence of a change in the law relating to suspension of sentence and bail we do not think that the introduction of S.433-A of the Code of Criminal Procedure should affect our decision. On the other hand, we feel that the very fact that S.433-A restricts the power of remission speaks to the gravity of the offences referred to therein. That means that the Court before suspending the sentence in such cases should also advert to the risk involved in the accused concerned being not made available for suffering the sentence on the appeal being disposed of against him.

The petition is dismissed for reasons already mentioned. The Criminal Appeal will be posted for hearing immediately on receipt of the records from the trial Court.

Dismissed.