 one issue definitely comes into being as to what is the next procedure, then one realizes and one examines and studies and he finds that is it not audible Mr. Murthy? It's audible. Okay, thank you. So we all see into suspension of sentence and suspension of sentence and stay of conviction. Another facets which are normally discussed and where does the suspension lie after the conviction, whether it will be before the district judge or before the High Court or before the Supreme Court, what will be the journey what we can say under the criminal law after the conviction. These all other aspects we will be discussing in today's webinar of Beyond Law CLC and we have amongst us Mr. Murthy Naik, Karnataka High Court. We thought why not understand the nuances because we have been seeing on the webinars a lot of sessions on opinion region but a very important topic but as such it's not being covered though as a young lawyer I would say when this particular part comes he has to understand as to how the specific provisions are provided. We will not apply simplicity 482 which normally says like in Hindi we say it's a Ramban but it's not a Ramban for all once there is a codified law for a particular aspect we have to go around with that. Before we ask Mr. Murthy and what we normally keep on saying go for the vaccination that's safe always wear your mask do social distancing and don't go out in the market or meeting friends just for the sake of it. You should go minimal that's the best way you can save yourself and one of the way where we can think of drawing people towards their drawing room or their offices is through these virtual platforms and all those who have been connected with us know that for more than one year we have been taking the sessions forward and those who have missed it can always like share subscribe the channel of Beyond Law CLC they can also click the bell icon for the updates on the sessions of Beyond Law CLC and without taking much time I would request Mr. Murthy Naik take things forward of suspension of sentence or do you? Thank you Vikas ji good evening one and all at the outset I would like to thank the organizers of today's webinar for inviting me to speak on the topic suspension of sentence as provided in the Code of Criminal Procedure 1973. Before I deal with the subject I would like to offer a small prayer for early resolution of the present pandemic. All of us are going through a difficult phase in our respective lives even in such a grim situation technology has been of great help and it has enabled us to be in touch with each other file matters in court attend courts through video conference participate in such webinars debates etc. I would congratulate Sri Vikas Chattrat and Beyond Law CLC for organizing series of webinars and I am told that this is going on for the past one year in fact I have attended quite a few and Sri Vikram told me this is going on since the March last year and such webinars have benefited all of us and I hope that in future too such webinars would be conducted and we would keep learning. Now I would straight away touch upon today's topic that is suspension of sentence. I have been told by the organizers that there are a couple of students who are watching this live hence I would try to keep it as simple as I can without dwelling into unnecessary technicalities and intricacies and would deal with the broad contours of the various provisions and the law that has developed over the period of time so that it would be helpful to all of us in our professional life. Am I audible friends? Thank you. Friends today's topic being suspension of sentence in court of criminal procedure hence I would confine today's discussion to the court of criminal procedure 1973 and the main features revolving around suspension of sentence as Vikas he rightly put it suspension of sentence is the other side of the coin. Dail pending trial or even dependency of the investigation or trial is mandated under section 437, 438, 439 etc and in case available of instance it is 436. Post conviction that is once the accused has been found guilty and he has been convicted and sentenced to undergo either rigorous imprisonment or simple imprisonment he will have to seek suspension of sentence and get himself released on bail so first and foremost the provision that is available is 389 of court of criminal procedure and this deals with the suspension of sentence during pendency of an appeal before the appellate court and consequent release of the appellate on bail this is the first part as contained in the CRPC 1973 as far as an appeal is concerned now the second provision which deals with suspension of sentence is in exercise of revisional jurisdiction under section 397 of the court of criminal procedure which is exercised by the session Scott and the High Court. Thirdly section 432 of CRPC speaks about power of an appropriate government to suspend or remit sentences so these are the three main provisions which speak about suspension of sentence the first two that is section 389 and 397 are exercised by the law courts whereas the third provision that is 432 is exercised by the executive so I would focus upon the first two provisions elaborately and would touch upon in the end section 432 now coming back to 389 of CRPC let me highlight the broad features of this provision friends this can be exercised by a session Scott or a High Court now before we go deep into the said provision let me briefly touch upon the circumstances under which appeals are filed to the respective courts firstly an appeal to the session Scott is filed from an judgment and order of conviction and sentence passed by a magistrate there are many offenses under the IPC and other statutory offenses which are tried by the magistrates in certain cases there are special magistrates such as companies act etc negotiable instruments act and so many other statutory offenses where the trial takes place before the court of magistrate after completion of trial if the accused is found guilty and he is sentenced to undergo a fixed term of imprisonment he can assail the set judgment of conviction and sentence before the appellate court and the appellate court in such circumstances would be the session Scott and the appeal would be filed before the session Scott and along with the main appeal an application under section 389 1 can be filed the second set of facts or second circumstance where an appeal can be filed is to the high court and that is from an order from a judgment and order passed by the session Scott that is normally when the session Scott tries a session case or a special court for example prevention of under the prevention of corruption act the special court is that of a sessions court hence the appeal would lie to the high court and along with the main appeal an application under section 389 1 can be filed having said so I would go one step further and would try to emphasize that section 389 1 application can also be filed before the Supreme Court when you seek suspension of sentence friends without the Supreme Court there is no specific provision under either the Supreme Court rules or under the court to file an application for suspension of sentence but an accused who is not in custody can file an application seeking seeking exemption from surrender that is before the Supreme Court that we will touch upon a little later when we deal with section 389 3 so now in a given case where the accused is in custody and his appeal filed against conviction passed by the trial court has been upheld or in an appeal against acquittal if the high court overturns the acquittal and convicts the accused and if he is taken to custody and then the accused will have to seek suspension of sentence by filing an application under 389 1 itself even before the Supreme Court and this can be found from a bear reading of section 389 1 which says that an appellate court the word appellate court has been employed in section 389 1 hence this would convey that this power of suspension can be exercised either by the sessions court high court or supreme court in an appeal filed against conviction and sentence friends further the use of the word me in said subsection would make it clear that suspension is not as of right but is discretionary you could kindly look into section 389 the word me has been used and it is not the word share friends the power of suspension was found under the old court also presently the 1973 court is in existence prior to that it was the 1898 court and the parry material section was section 426 of the old court I would refer to the 1898 court as the old court for the sake of clarity notable judgment on this point is that of the previ council not only notable it is one of the earliest on this point where in the previ council was dealing with section 426 of the old court and in the case of lala jai ram das versus king emperor which is reported as air 1945 previ council 94 it has been held that high court does not have inherent power to suspend the sentence but such a power can be exercised only under section 426 of the 1898 court as in fact during the introductory speech mr vikas referred to section 482 that is the inherent power of the high court even under the 1973 court a suspension of sentence can be sought only under the relevant provision if it is an appeal at section 389 one or if it is a revision under section 397 one a suspension of sentence cannot be sought by invoking the inherent powers of the of the high court under section 482 that is the law and which is similar or akin to what has been laid down by the previ council in the said judgment now friends 389 one has two provisions first proviso to section 389 mandates that if an appellate who is seeking suspension of execution of sentence has been convicted either for imprisonment for life death or for an imprisonment for a term of not less than 10 years then opportunity to the public prosecutor to oppose such a suspension is a must and opportunity is not mere oral hearing but he should be given opportunity to file written objections and the honorable supreme court has dealt with the first proviso to section 389 in number of cases and notable being you may kindly make the note is the case of atul triparty versus state of utha pradesh which is reported as 2014 9 sec 177 here the honorable supreme court has held that proviso first proviso to section 389 is mandatory in nature now friends the second proviso to 389 one deals with the power of the public prosecutor to file an application for cancellation of the bill that is second proviso would come into play if the sentence has been suspended and the appellate has been released on bail this is something akin to 437 file or 439 2 of CRPC which deals with cancellation of bail that has been granted to an accused during the pendency of investigation or tried so the second proviso deals with the power of the public prosecutor to file an application for cancellation so these are the two provisos to section 389 one now the as i dealt with the first proviso the honorable supreme court in an earliest judgment and a very prominent judgment on this point of suspension under section 389 one in the case of kashmira singh versus state of punjab which is reported as 1977 4 sec 291 was dealing with a case where the accused was sentenced to imprisonment for life and it has been held that the release of an appellate who has been sentenced to life imprisonment on bail pending disposal of his appeal would be justified when the court is not in a position to dispose of appeal expeditiously in fact the supreme court for the first time in this case held that the practice of not granting bail by the supreme court and high court to persons who have been sentenced to life imprisonment was not correct friends as you are aware normally the high courts are slow in granting bail to appellants who have been convicted for imprisonment for life normally imprisonment for life is awarded in heinous offenses such as murder etc killing for ransom 364 a etc etc so that being the case the law courts are slow and this includes the supreme court in granting bail to an accused though an appeal would have been admitted so in the case of kashmira singh the supreme court for the first time examined and held that there is nothing wrong in suspending the sentence and granting bail to an accused who has been convicted for imprisonment for life in friends there is a lull for nearly 30 years this was being followed by some courts and some courts so did not follow it and after nearly 30 years the supreme court in the case of siddhartha vashish that that is the famous jessica lal case the supreme court once again revisited this aspect of what is suspension of sentence and under what circumstances a sentence has to be suspended in this case the appellant that is siddhartha vashish who was also known as manu sharma was convicted by the high court in an appeal filed against acquittal passed by the session spot he was originally acquitted by the session spot thereafter the state went in appeal to this high court of delhi and the delhi high court convicted him and found him guilty for the offense of murder hence he was taken into custody immediately and thereafter when he approached the supreme court by filing a special impetition and application for suspension of sentence was fine and while considering the said suspension of sentence the supreme court once again revisited this aspect and it held that the court it held that one of the main feature amongst others to be considered while dealing with an application under 389 is the time that would be consumed for disposal of a particular appeal so the court applied the test of whether the appeal would be disposed of in a measurable distance of time so this phrase measurable distance of time was coined and retreated and thereafter it was held that the accused was not entitled for the benefit of suspension of sentence merely because the appeal has been admitted this siddharth vashish case is reported as 2008 5 sec 230 now friends coming further this power of suspension of sentence can be exercised by the high court when suspension has been refused by the sessions court in a appeal pending before it this is as per section 389 2 of the CRPC now friends another important feature of this suspension of sentence is section 389 3 here the court which convicted the accused has the power to suspend the sentence and grant appeal to the convicted accused for a limited period of time so as to enable him to approach the higher court and seek appeal but under two circumstances firstly a sentence can be suspended by the very same court if the accused is on bail during trial and secondly he has not been sentenced for a term not exceeding three years so these are the twin requirements in the first scenario where the session scored or the court will be the magistrate or the session scored which commits a particular accused can suspend the sentence for a limited duration so the twin requirements are one is the accused should have been on bail during trial and second is the sentence awarded should not be more than three years and the second scenario the second situation in which a sentence can be suspended by the very same court is when the accused has been convicted for a bailable offense for example 304 a 304 a is a bailable offense and is tried before the court of magistrate so under such circumstances if it is a bailable offense the court which convicted the accused has power to suspend the sentence and grant appeal as I told you earlier this provision keeping in mind the fact that the accused should be given a reasonable opportunity to approach the higher court hence this has been considered and incorporated in section 3893 but with the rider as I narrated earlier so those requirements have to be made so in all cases the court cannot suspend a sentence for example if an accused is tried for an offense under section 307 IPC by a session scored and the court finds him guilty for the offense under section 326 and convicts him for and sentences him for a term of five years then the session scored cannot suspend the sentence the accused will have to be taken into custody even if he was on bail during dependency of trial hence friends not only the magistrate court or the sessions court can exercise this power and section 3893 in fact the word employed there in 3893 will have to be minutely examined and it says 3893 says the court which convicted the accused so it can be the high court also for example in an appeal against acquittal filed by the state challenging acquittal of an accused who was tried for offense under section 307 has been convicted by the high court and sentenced to undergo imprisonment for three years then the high court will be justified in suspending the sentence in exercise of its power and section 3893 but normally this 3893 applications are not filed before high courts and this has been dealt with by the honorable Supreme Court where it has been held that 3893 is applicable where there is a right of appeal in the case of Mayuram Subramaniam versus Srinivasan reported as 2006 5 SCC 752 the Supreme Court has held and there is a right of appeal then 3893 would be applicable if you seek leave under article 136 of the constitution to file an appeal to the higher court that is to the Supreme Court then you cannot so the rider is there has to be a right of appeal then 3893 is applicable as I told you earlier this is a very special and a unique provision I will call it unique provision the subsection 3 of section 389 this is provided to the respective courts so that the benefit the accused shall avail of the benefit and sentence so suspended shall in your to him only for a limited duration so as to enable him to approach the higher court now friends these are the broad parameters revolving around suspension of sentence now there was certain debate as to whether it is suspension of sentence or suspension of execution of sentence and also the law courts went one step ahead and held that even suspension of conviction is permissible friends if you all again examine and I am sure most of you all would be having CRPC along with you in your hand if you examine 3891 the world used is execution of the sentence or order appeal against be suspended it is the execution of the order appeal or the sentence but the law courts have given various interpretation to this section a constitution bench of the Supreme Court in the case of BR Kapoor which is reported as 2001 7 SCC 231 has held that it is not within the power of the affiliate court to suspend the sentence it can only suspend the execution of the sentence pending disposal of the EP likewise in another constitution bench judgment that is in the case of K Prabhakaran versus P Jai Raj reported as 2005 1 SCC 754 it has been held by the Supreme Court that what is suspended is not the conviction or sentence it is only the execution of the sentence or order which is suspended further the Supreme Court has held that it is suspended and not obliterated friends the first engagement first constitution bench judgment which I referred to that is the case of BR Kapoor there there was challenge to various provisions of the representation of people's act there the respondent number two was the then chief minister of Tamil Nadu Shreemati Jailalika and her election as MLA and subsequent appointment as chief minister was challenged and while dealing with this petition it was held that there can be only suspension of execution of the sentence and not suspension of sentence however friends the Supreme Court in the case of Naujot Singh Sidhu versus state of Punjab which is reported as 2007 2 SCC 574 and this is kindly not this is a two judges bench judgment has held that section 3891 CRPC confers power not only to suspend the execution of the sentence and grant bail but also to suspend the operation of the order appealed against which means the order of conviction and there while dealing so with the said application for suspension of conviction the Supreme Court relied on another judgment of the Supreme Court only which is a three judges bench judgment in the case of Ravi Kant as party reported as 2007 1 SCC 673 and held that suspension of conviction is permissible the reason for suspending the conviction was Naujot Singh Sidhu had encountered a disqualification by virtue of his conviction he was tried and acquitted by the trial court but subsequently he was convicted by the high court in an appeal against the Twitter so in such a case an application was filed for suspension of conviction before the Supreme Court and the Supreme Court stayed his conviction similarly in Ravi Kant this party's case the conviction was stayed on the ground that it was a case where Ravi Kant this party was convicted for an offense of rape under section 376 IPC and the conviction was stayed on the ground that there has been settlement between the prosecute tricks and the accused in fact they had got married so that weighed with the Supreme Court for staying the conviction and in that case the Supreme Court held that person seeking state of conviction must draw attention to the appellate court to specific consequences that may arise if conviction is not stayed otherwise state cannot be granted it also held that state of conviction can be granted only in exceptional and rare circumstances where non-grant of state would lead to injustice and irreversible consequences again in the said case that is Ravi Kant this party's case the Supreme Court stayed the conviction for the reason that he was an elected member of the legislative assembly and he had suffered disqualification by virtue of the conviction judgment of conviction that was passed against him. Friends these are all the judgments on suspension of conviction but the earliest on this point is in the case of Ram Narang versus Ramesh Narang reported as 1995 volume 2 SCC 513 1995 volume 2 SCC 513 this was the case where the accused was convicted for offense under section 120B and 420 of IPC read with 114 of IPC as he was encountering a disqualification under the company's act a three judges bench of the Supreme Court ruled that suspension of conviction was necessary and can be passed under the garb of suspension of order appealed against him. So for the first time in Ramesh Narang Ram Narang was Ramesh Narang's case the Supreme Court has exhaustively dealt with the aspect of suspension of conviction. Thereafter in the case of Sanjay Dutt versus state of Maharashtra as all of you know Sanjay Dutt was tried for an offense under the Tata Act in the Bombay 1993 Bombay bomb blast case but he was convicted under the arms act and there the appeal directly was to be filed to the Supreme Court as per the special statute. Hence an appeal was filed to the Supreme Court and there Sanjay Dutt not only sought for suspension of his sentence but he also sought for suspension of his conviction on the ground that he wants to contest the parliamentary elections but however the Supreme Court taking into consideration the seriousness of the allegations made and the evidence that was recorded by the special court found it fit not to suspend the order of conviction the judgment of conviction hence it refused suspension of conviction to Sanjay Dutt and that is reported as 2009 5 SCC 787 and this is a three-judge bench judgment as far as special enactments such as prevention of corruption act the honorable supreme court has held that though the power to suspend an order of conviction is available to the appellate court it should be exercised in very exceptional cases the exercise should be very limited and only when it is necessary and it is found by the appellate court that the suspension if the suspension of conviction is refused real hardship would be caused only in such cases the conviction should be suspended but in cases where the accused is convicted for offense under the prevention of corruption act the supreme court held that it should not be done notable case is that of KC Sarin versus CBI reported as 2001 6 SCC 584 friends in a latest judgment that is in the case of Prithpal Singh versus state of Uttar Pradesh which is reported as 2020 8 SCC 645 the supreme court has distinguished sections 439 and 389 of code of criminal procedure it has copiously dealt with all the earlier judgments on the said point and has held that in a case of post conviction bail that is by suspension of operation of the sentence there is a finding of guilt and the question of presumption of innocence does not arise that is when an accused is convicted after a full-fledged trial the question of presumption of innocence doesn't arise whereas in a case where the accused is facing trial or the investigation is under progress then question of presumption of innocence is in favor of the accused hence the supreme court held that question of presumption of innocence doesn't apply to an accused who has been convicted nor is the principle of bail is the rule and jail is an exception attracted once there is conviction upon trial it has been further held that 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 and section 389 to reassess and to reanalyze the same evidence and take a different view to suspend the execution of the sentence and release the convict on bail. Friends I would once again repeat the citation and the name of the parties it is reported as 2020 8 SCC 645 in the case of Preetpal Singh versus state of Uttar Pradesh this is one of the latest judgment on the point of suspension of sentence at the section 3891 CRP now friends the approach for suspension of sentence varies from case to case depending on the seriousness and the nature of offense nature of evidence led in by the prosecution sentence imposed etc etc there is there are variety of circumstances to be taken into consideration before suspending a sentence normally friends in cases where the accused has been convicted and sentenced to a term of less than 10 years normally the sentence is suspended but there are cases where the High Court or even the Supreme Court has refused suspension of sentence in cases where the accused has been sentenced to undergo imprisonment for less than 10 years and the nature of evidence that has been led in by the prosecution and another main feature as I told you in the beginning or the main factor to be taken into account is the time that would be consumed or disposal of a particular case that is a particular appeal because the whole purpose for suspending the sentence is that in the event the accused succeeds in the appeal and if he is kept in custody during the pendency of the appeal then the entire exercise would be an exercise in futility it would be just like a paper decree in civil source it would be just a paper acquittal an acquittal on paper whereas he would have undergone the sentence and in many number of cases in some High Courts such as UP and other High Courts which are overburden there are instances where the accused would have undergone the sentence for which he was convicted and sentenced to and thereafter the appeals are heard and disposed of and then the order of acquittal is pronounced in such a case it is nothing but an exercise in futility and the accused will have to unnecessarily undergo the ordeal of sentence hence this 389 one or for that matter the provision of suspension of sentence has been incorporated in the court and plays a very vital role friends as I told you earlier there are instances especially in economic offenses white collared crimes offenses of corruption the High Court and Supreme Court has refused to grant bail for example in 2014 the then Chief Minister of Tamil Nadu was convicted was found guilty and was convicted for offense under the prevention of corruption act and was sentenced by the special judge to undergo imprisonment for five years though she was on bail because she was sentenced to undergo imprisonment for five years she was taken into custody along with other accused and they were also directed to pay a hefty fine and she approached the Karnataka High Court and filed an application for suspension of sentence because Nantaka High Court refused to suspend the sentence and grant her bail on the ground that corruption has become a minnass in the society hence it was not a fit case for suspending the sentence another reason why the sentence was not suspended was that the accused had dragged the case indefinitely the case was pending for nearly 20 years it was originally pending before the court in Tamil Nadu and thereafter it was transferred to Bangalore by order of the Supreme Court in a transfer petition and thereafter the special court was constituted and even thereafter it took 10 years for the special court in Bangalore to decide the set case because for one reason or the other the accused kept on dragging the case kept on filing applications challenged filed various petitions before the High Court challenging rejections of several applications etc hence the High Court held that the appellate was not entitled for suspension of her sentence ultimately the Supreme Court granted her bail and thereafter the appeal was decided and of course all of you know ultimately the appeal against her that is Jailalitha was abated and as far as the other accused are concerned they were found guilty and the judgment of conviction passed by the special court was a fit now friends there are certain cases which are tried by the magistrates certain statutory offenses such as under the Companies Act, Factories Act, Air Pollution Act, Water Act so many there are so many acts and enactments under which the accused are tried one enactment where in number of cases are filed are the negotiable instruments that and in such cases the approach is slightly different because this is a posy criminal offense the approach is slightly different when an accused who is convicted approaches the session court by filing an appeal normally the accused is required to deposit certain portion of the check amount now friends this is as far as suspension of sentence as contained in section 389 of CRP now the second provision which deals with suspension is section 397 397 is a concurrent provision of revision to be exercised by the sessions court or the high court normally suspension of sentence would arise before the high court according to that is because an order of conviction passed by the magistrate could be challenged in an appeal before the sessions court and if they said appeal is dismissed then the appellant accused will have to approach the high court by filing a revision petition under section 397 read with 401 CRPC to call friends as all of you are aware the code of criminal procedure doesn't provide for a second appeal unlike CPC in the hence a revision will have to be filed and this revision can also be filed when a sessions court overturns an order of acquittal passed by the trial court and commits the accused hence under these two circumstances the revision can be filed to the high court under section 397 read with 401 and again the word employed there is suspension of execution of the sentence while calling for the record of the inferior court so here to the word suspension of execution of the sentence is employed friends a revision unlike an appeal against conviction is not as of right a revision petition is maintainable when the correctness legality or propriety of an order or finding of an inferior criminal court is in question hence examination of factual aspects cannot be done by a revision court that means so the person who has filed a criminal revision will have to make out a case and will have to impress upon the court that there is patent illegality or the order is is palpably erroneous or suffers from serious informities which on the face of the record is visible hence the high court can call for record if such a case is made up hence I would like to emphasize that there is vast difference between an appeal and a revision an appeal against conviction is a statute right of every accused whereas as of right an accused cannot file a revision petition even at the 1898 court there was provision for revision and the parry material section was 435 section 397 of the present 1973 court is equivalent to 435 of the old court and 401 that is power of revision of the high court is equivalent to section 439 of the old court now lastly friends section 432 of CRPC deals with power of the concerned government to either suspend the execution of sentence or remit the whole or any part of the punishment to which he has been sentenced this power is exercised by the executive and judicial courts have no such power in the section 432 of CRPC as has been held by the Supreme Court time and again and the notable case being the case of Muhammad Hassan versus Union of India reported as 2010 AIR SCW 6489 friends such power is given to the president as per article 72 of the constitution and to governor of state as per article 161 of the constitution of India now the Supreme Court in the case of a Peru Sudhakar versus government of Andhra Pradesh and others has held that the judicial review by the High Court or Supreme Court of an order passed either the article 72 or 161 of the constitution of India is permissible in the sense this power is normally known as the power to grant pardon and this order that is passed by the president or the governor of a particular state can be challenged before the High Court in exercise of its restrictive restriction and article 226 or the Supreme Court in exercise of its power and article 32 and this has been held in the case of a Peru Sudhakar and another versus the government of Andhra Pradesh reported as 2006 that it were reported in 2006 SCC hence friends these are the three broad provisions in the CRPC which deals with suspension of sentence hence a brief sneak peek into the various provisions and the law that has traveled so far thank you I showed everything it was not a bird eye view but we got everything to know and all the relevant judgments from the Jyotsidhu to Manusharma then Jailita these are the judgments which the young students as we are saying have joined but even while they are students or not even joined law these are the judgments which we were often talked about yes but the legal journey and what were the effects as such or they would be they have been given a they say as they are their two-dimensional view this is a third-dimensional view which one could understand Palak Gupta says difference between two sections was highlighted in three path sinks what are the two different between the two sections what was that sorry can you be a little louder because the difference between the two sections I can't hear you because you are not audible yeah now it's audible yeah better yeah it says you have referred to two sections that were highlighted in pre-passing skis would you just highlight it again two sections in feet passing okay that is the latest development of the supreme court that is 2028 a cc 645 yes two sections are 439 and 389 as all of you know 439 deals with power of the high court and the sessions called to grant bail to an accused during investigation or during pregnancy of the trial whereas 389 is post trial that is post conviction the supreme court has very minutely distinguished in fact it has very copiously surveyed all the earlier judgments on the point and has held that the rule of innocence presumption of innocence is not applicable to a convict nor the principle of bail is the rule and jail is an exception attracted once there is conviction upon trial the court use repeat the citation where second appeal is not maintainable where conviction order is passed by the sessions court so it is not question of second appeal I did not refer to any it is we'll see there is no provision of second appeal at all unlike cpc there is no provision for filing the second appeal it is revision and revision under 397 only where in the legality correctness and propriety of an order or finding of an inferior criminal court can be essay so under the guard of this an order of conviction passed by the appellate court can be essayed before the higher court and normally it is the high court local task accused is on bail during trial on conviction by the judicial magistrate first class application has been filed for suspension of sentence whether the bail slash shorty needs to be furnished again yes thank you so we will unmute through the program I will add a bit impact you before three Vikram takes over as far as the last question is concerned yes one has to furnish surety and even now by virtue of amendment under 437 a surety will have to be furnished even if the accused is acquitted till such time the appeal period is over so the surety will have to be furnished and this is only for a limited duration so as to enable the accused to approach the higher court thank you you need Mr. Vikas good evening sir yeah good evening Vikram always a pleasure interacting with Moody sir and it's a pleasure to participate in this webinar he's like a walking library I keep calling him because he has all the citation in his fingertips and I think he is given as a holistic picture of this topic suspension of sentence and along with the citations very useful citations I think sir I would request you to kindly give us the soft copy so that Mr. Vikas Chakran can share it with the participants it would be of great help yeah at least the citation what is the broader aspects covered in that yeah I mean I will email it to you because yeah you can share it on the whatsapp also yes I'll do that yeah yeah so friends tomorrow do stay connected with us on partnership disputes in remedy that is by Mr. S. S. Magadant a senior advocate from Karnataka High Court tomorrow at 5 p.m. but before we part for the day there's one question it's by Moody Chaturlath if an accused charged and tried under section 307 and found not guilty can he be sentenced under section 326 even if he has not been charged under the same yes it can be this Supreme Court has held it can be a specific charge need not be framed when the court finds a particular accused guilty of a lesser offense but I have a question sorry to interrupt you have earlier mentioned that it would be up to three years but however if a convict in a murder case says I'm convicted for check your mic am I not audible no there's a lot of yeah better if the accused is convicted under section 302 of IPC and he was not granted bail during the course of trial so still does he have a right to go an application under for suspension of sentence to the same court no before the appellate court for example sessions court has convicted him and during the course of trial he was not granted bail and now he has preferred an appeal before the High Court and can he owe the suspension of sentence and is there a chance can we go consider his suspension of sentence considering the fact that he was not on bail during the course of trial yes of course that should be a factor but suspension of sentence is available to all the convicts whether they were on bail or they were not on bail irrespective of the offense irrespective of the sentence but only thing is if a particular accused was not on bail during pendency of the trial then that would be one of the factor that would be considered and normally the appellate court takes that into consideration whether the appellate was on bail during pendency of trial are there any circumstances where the High Court or the Supreme Court has considered such an application where the convict was not granted bail during the trial have you encountered such situations yes there are there are cases in fact there was I think it is pending before the Supreme Court which arose from our High Court and it was the the convict was not on bail but the Supreme Court has granted the bail there are instances where both the courts have refused a bail during pendency of trial and appeal but the Supreme Court has granted bail likewise even the High Court has suspended see if a if a particular accused is able to show to the court either to the High Court or to the appellate court that there is an palpable error committed by the trial court then certainly the appellate court will take into consideration and would exercise the power of suspension there is no bar as such right sir thank you so much thank you Mr. Vikas so thank you to Trikram Multinayak and to all those participants who have been watching us live on the youtube and facebook coupled with those who have connected with us on the zoom before we part again it is reiterated kindly wear your mask maintain social distancing and contribute in whatever way you can contribute to the nation because each one as I say earlier we used to say each one can plant one each one can teach one but here I say that each one can contribute one in a social way economically physically emotionally in some manner or the other everybody is empowered to support that kindly do that and as I say this too shall pass and those who have missed our previous sessions can like share subscribe and click on our bell icon for the previous webinars do stay connected us with us and tomorrow at 5 p.m. we will connect on partnerships disputes with Mr. S S Nagaran the senior rookie and Mr. Multinayak we are enamored by the fact that you took us to the entire journey of suspension of sentence and I'm quite sacrosanct that a lot of people would learn from it and they will continue to learn once they watch the webinars which are on the youtube thank you stay safe stay blessed devote as much time you can spend with your family and virtually with your friends on mobiles and these zoom calls thank you thank you thank you because thank you because