Supreme Court of India
Aasif @ Pasha vs The State Of U.P on 6 August, 2025
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REPORTABLE
2025 INSC 944
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.3409/2025
(@SPECIAL LEAVE PETITION (CRL.) NO.11361/2025
AASIF @ PASHA Appellant(s)
VERSUS
THE STATE OF U.P. & ORS. Respondent(s)
O R D E R
1. Leave granted.
2. The impugned Order is one more from the High Court of
Judicature at Allahabad with which we are disappointed.
3. This petition arises from the order passed by the High Court
of Judicature at Allahabad dated 29-5-2025 in Criminal Appeal
No.8689/2024 by which the High Court declined to suspend the
substantive order of sentence passed by the Trial Court.
4. It appears from the materials on record that the appellant was
put to trial in the Court of 2nd Additional Sessions Judge/Special
Judge(POCSO Act), Meerut, Uttar Pradesh in Protection of Children
from Sexual Offences Act (POCSO) Case No.270/2016 for the offence
punishable under Sections 7 & 8 respectively of the POCSO Act,
Sections 354, 354Kha, 323 and 504 respectively of the Indian Penal
Code and Section 3(1)(10) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities)
Signature Not Verified
Act, 1989.
Digitally signed by
VISHAL ANAND
Date: 2025.08.07
5.
18:09:10 IST
Reason: At the end of the trial, the appellant stood convicted.
6. He was sentenced to undergo one year rigorous imprisonment
with fine of Rs.3000/- for the offence punishable under Section 354
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IPC for the offence under Sections 7 and 8 respectively of the
POCSO, he came to be sentenced to undergo 4 years of RI with fine
of Rs.4,000/- and for the offence under the SC/AT Atrocities Act,
he came to be sentenced to undergo 4 years of RI with fine of
Rs.5,000/-. The Trial Court ordered that all the sentences shall
run concurrently.
7. Being dissatisfied with the Judgment and order of conviction
passed by the Trial Court, the appellant went in appeal before the
High Court. His Criminal Appeal No.8689/2024 is awaiting final
hearing. In the said appeal, the appellant preferred an application
under Section 389 of the Code seeking suspension of the substantive
order of sentence passed by the Trial Court.
8. The High Court declined to suspend the substantive order of
sentence observing as under:-
“21. Having heard the learned counsel for applicant/appellant,
the learned A.G.A. for State-opposite party-1, upon perusal of
material brought on record, evidence, nature and gravity of
offence as well as complicity of applicant/appellant, accusation
made, this court finds that the objections raised by the learned
AGA in opposition to this application for suspension of sentence
could not be dislodged by the learned counsel for
applicant/appellant with reference to the record at this stage,
therefore, irrespective of the varied submissions urged by the
learned counsel for applicant/appellant in support of this
application for suspension of sentence and also considering the
fact that the applicant/appellant has been held to be guilty of
committing the offence which is not only immoral but also
heinous, therefore, this Court does not find any good or
sufficient ground so as to enlarge the applicant/appellant on
bail during the pendency of present appeal.”
9. In such circumstances, referred to above, the appellant is
here before this Court with the present petition.
10. There are two types of sentence that the Trial Court can
impose depending on the nature of the offence. Some orders of
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sentence are for a fixed term, unlike the order of sentence of life
imprisonment.
11. The case in hand is one of a fixed term of sentence. The
maximum punishment that has been imposed is 4 years.
12. Way back in 1999, this Court in “Bhagwan Rama Shinde Gosai
and Others v. State of Gujarat” reported in (1999) 4 SCC 421 stated
that when a convicted person is sentenced to a fixed period of
sentence and when he files an appeal under any statutory right,
suspension of sentence should be considered by the Appellate Court
liberally unless there are exceptional circumstances.
13. Of course, if there is any statutory restriction against
suspension of sentence, it is a different matter.
14. Similarly, when the sentence is life imprisonment, the
consideration for suspension of sentence could be of a different
approach.
15. But if for any reason the sentence of a limited duration
cannot be suspended, every endeavour should be made to dispose of
the appeal on merits, more so when a motion for expeditious hearing
of the appeal is made in such cases.
16. This Court said in so many words that otherwise the very
valuable right of the appellant would be an exercise in futility
by afflux of time.
17. When the Appellate Court finds that due to practical reasons,
such appeals cannot be disposed of expeditiously, the Appellate
Court must show special concern in the matter of suspending the
sentence so as to make the appeal right, meaningful and effective.
At the same time, the appellate courts can impose similar
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conditions when appeal is granted.
18. In “Omprakash Sahni vs. Jai Shankar Chaudhary and Anr. (2023)
6 SCC 123, this Court while considering the scope of 389 CrPC in
cases of life imprisonment held as under:-
30. In Kishori Lal v. Rupa [Kishori Lal v. Rupa, (2004) 7 SCC
638 : 2004 SCC (Cri) 2021], this Court has indicated the
factors that require to be considered by the courts while
granting benefit under Section 389CrPC in cases involving
serious offences like murder, etc. Thus, it is useful to refer
to the observations made therein, which are as follows : (SCC
pp. 639-40, paras 4-6)“4. Section 389 of the Code deals with suspension of
execution of sentence pending the appeal and release of
the appellant on bail. There is a distinction between
bail and suspension of sentence. One of the essential
ingredients of Section 389 is the requirement for the
appellate court to record reasons in writing for
ordering suspension of execution of the sentence or
order appealed against. If he is in confinement, the
said court can direct that he be released on bail or on
his own bond. The requirement of recording reasons in
writing clearly indicates that there has to be careful
consideration of the relevant aspects and the order
directing suspension of sentence and grant of bail
should not be passed as a matter of routine.
5. The appellate court is duty-bound to objectively
assess the matter and to record reasons for the
conclusion that the case warrants suspension of
execution of sentence and grant of bail. In the instant
case, the only factor which seems to have weighed with
the High Court for directing suspension of sentence and
grant of bail is the absence of allegation of misuse of
liberty during the earlier period when the accused-
respondents were on bail.
6. The mere fact that during the trial, they were
granted bail and there was no allegation of misuse of
liberty, is really not of much significance. The effect
of bail granted during trial loses significance when on
completion of trial, the accused persons have been found
guilty. The mere fact that during the period when the
accused persons were on bail during trial there was no
misuse of liberties, does not per se warrant suspension
of execution of sentence and grant of bail. What really
was necessary to be considered by the High Court is
whether reasons existed to suspend the execution of
sentence and thereafter grant bail. The High Court does
not seem to have kept the correct principle in view.”
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31. In Vijay Kumar v. Narendra [Vijay Kumar v. Narendra, (2002)
9 SCC 364 : 2003 SCC (Cri) 1195] and Ramji Prasad v. Rattan
Kumar Jaiswal [Ramji Prasad v. Rattan Kumar Jaiswal, (2002) 9
SCC 366 : 2003 SCC (Cri) 1197] , it was held by this Court that
in cases involving conviction under Section 302IPC, it is only
in exceptional cases that the benefit of suspension of sentence
can be granted. In Vijay Kumar [Vijay Kumar v. Narendra, (2002)
9 SCC 364 : 2003 SCC (Cri) 1195], it was held that in
considering the prayer for bail in a case involving a serious
offence like murder punishable under Section 302IPC, the court
should consider the relevant factors like the nature of
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.
32. The aforesaid view is reiterated by this Court in Vasant
Tukaram Pawar v. State of Maharashtra [Vasant Tukaram Pawar v.
State of Maharashtra, (2005) 5 SCC 281 : 2005 SCC (Cri) 1052]
and Gomti v. Thakurdas [Gomti v. Thakurdas, (2007) 11 SCC 160 :
(2008) 1 SCC (Cri) 644].
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.”
19. It is unfortunate that the High Court while passing the
impugned order failed to take into consideration the well-settled
principles of law governing the plea of suspension of sentence on
fixed term is concerned. What the High Court did was to reiterate
the entire case of the prosecution and the oral evidence which has
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come on record.
20. That is not the correct approach.
21. The High Court should have been mindful of the fact that the
appeal is of the year 2024. Appeal of 2024 is not likely to be
taken up in near future. Ultimately, if 4 years are to elapse in
jail the same would render the appeal infructuous and that would be
travesty of justice.
22. In such circumstances, referred to above, we set aside the
impugned order and remand the matter to the High Court for fresh
consideration of the plea of the appellant – herein for suspension
of the substantive order of sentence keeping in mind the principles
of law as explained by us aforesaid. The High Court shall keep in
mind that the sentence is for a fixed term, i.e. 4 years and it is
only if there are any compelling circumstances on record to
indicate that the release of the appellant would not be in public
interest that the Court may order accordingly.
23. We are once again constrained to observe that such errors
creep in at the level of High Court and only because the well-
settled principles of law on the subject are not applied correctly.
It is very important to first look into the subject-matter.
Thereafter the court should look into the issue involved. In the
last the court should look into the plea of the litigant and then
proceed to apply the correct principles of law.
24. With the aforesaid, the Appeal stands disposed of.
25. The High Court shall re-hear the application filed by the
appellant – herein afresh at the earliest and pass an appropriate
order within 15 days from today.
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26. Pending applications, if any, also stand disposed of.
…………………………………………J
(J.B. PARDIWALA)
…………………………………………J
(R. MAHADEVAN)
NEW DELHI
6TH AUGUST, 2025.