What precaution the convicting court should take after suspending sentence of convict?

1. This is an application for suspension of sentence during

pendency of the Applicant’s Appeal challenging the Judgment

and Order dated 28/11/2023 passed by the learned Special

Judge, Nashik, in Special case (POCSO) No.50/2022.

2. The Applicant was convicted for commission of offence

punishable u/s 354-A(1)(iii) r/w 354-A(2) of the Indian Penal

Code and he was sentenced to suffer rigorous imprisonment for

three years and to pay a fine of Rs.1,000/- and in default of

payment of fine to suffer further rigorous imprisonment for one

month. The Applicant was acquitted from the charges of

commission of offence punishable u/s 12 of the Protection of

Children from Sexual Offences Act, 2012.

3. The Appeal was filed after a delay of 538 days. The

delay in filing the Appeal is condoned by a separate order passed

in Interim Application No.2745 of 2025. Similarly, by a separate

order the Appeal is admitted. The question now remains about

suspending the sentence imposed on the Applicant. In this

connection, there are certain important aspects which will be

dealt with seriously.

4. As far as the present case is concerned, the allegations

are that the Applicant used to show obscene videos to the victim

and used to kiss her on her hands. The victim was admitted in the

institution of the first informant. The Applicant and his wife were

treating her as their adopted daughter. When this fact was told by

the victim to the informant, who was the incharge

Superintendent of the Welfare Home, she lodged the FIR at

Ambad Police Station vide CR No.I-138/2020. The learned Judge

held that the prosecution has failed to establish that the victim

was below 18 years of age at the time of the incident and

therefore, the Applicant was acquitted from the charges of

commission of offence punishable u/s 12 of the Protection of

Children from Sexual Offences Act, 2012. However, the other

offences were held to be proved.

5. Paragraph No.29 of the Judgment mentions that P.W.7

was a neighbour of the Applicant. She has admitted in the crossexamination that she never noticed that the accused had

misbehaved with the victim. The Applicant was maintaining her.

She further admitted that the victim had stolen Rs.500/- from the

Applicant and therefore there was a quarrel between the victim

and the Applicant and out of that grudge, this complaint could

have been lodged.

6. Paragraph No.27 of the Judgment shows that, in the

cross-examination, the victim had admitted that in the month of

December 2019, she had taken Rs.500/-, which had fallen from

the shirt pocket of the Applicant. The evidence of P.W.7, the

neighbour, is supported to that extent by the evidence of P.W.5.

Learned Judge also disbelieved the victim’s case that the

Applicant used to kiss her hands. Therefore, to a certain extent

the victim’s story is disbelieved by the learned Judge.

7. All these issues will have to be decided at the stage of

final hearing. However, the Appeal is not likely to be decided

within a period of three years for which he is sentenced.

Therefore, the Applicant deserves to be released on bail. I am

inclined to grant bail to Applicant pending his Appeal, by

suspending his sentence. However, some more features need to

be addressed in this case.

8. Apart from the fact that sentence of the Applicant is

required to be suspended in this case, this case brings out a

wider defect in the practice followed by some Trial Courts

because of which even if the conviction is recorded, the

convicted accused are either not arrested or are arrested after a

long period. In some cases, they do not even file the Appeal.

9. In the present case, after the conviction was recorded

by the learned Judge, the learned counsel for the Applicant

preferred an application at Ex.47 in the Special (POCSO) Case

No.50/2022, by mentioning that the Applicant intended to file

an Appeal against the Judgment and Order of conviction and

sentence. The Applicant was on bail during the Trial and he was

regularly remaining present before the Trial Court. A prayer was

made that his sentence be suspended till the Appeal was filed.

The learned Judge passed an order in the following words on

28/11/2023 :

“Read application and say of APP.

Heard APP and Adv. Shri Aher for accused.

The accused is sentenced for 3 years. Therefore keeping

the section 389 of Cr.P.C. in mind & since accused is on

bail throught trial and he has not misused the liberty I

pass following order.

The substantive sentence of accused is

suspended till one month on depositing fine amount &

also on furnishing P.B. & S.B. each of Rs.25,000/-.”

10. The copy of the application and order is not annexed to

this application. However, the learned APP showed the

application and order to the Court. The copy of this order is

taken on record.

11. The said order was passed on 28/11/2023 and till

today nothing further had transpired. The Appeal was admitted

today. The delay of 538 days in filing the Appeal was condoned

today. But the Applicant was never arrested though the period

for which the sentence was suspended is over long ago on

28/12/2023 itself. This is not an isolated incident. This is

happening in many cases because of certain flaws in the

practices followed by some Trial Courts, which need to be

corrected immediately, so that all the orders passed are effective

and the judicial process is given its proper respect and effect.

12. In this context, certain provisions are required to be

taken into consideration. After conviction of an accused on

certain grounds, the Trial Court can grant bail for a limited

period. There are provisions under Code of Criminal Procedure,

1973 (Cr.P.C.) as well as under the Bharatiya Nagarik Suraksha

Sanhita, 2023 (BNSS). Since the present application was filed

under Cr.P.C., I am referring to the provisions under Cr.P.C.

Of course, there are corresponding provisions under BNSS as

well.

13. The Trial Court under certain circumstances can grant

bail even after conviction by suspending the sentence u/s 389

sub-section (3) of Cr.P.C. (corresponding to section 430 of

BNSS), which reads thus:

389. Suspension of sentence pending the appeal;

release of appellant on bail.

(1) …….

(2) …….

(3) Where the convicted person satisfies the Court

by which 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.

 One of the important features of this provision is that

the period referred to in sub-section 3 of section 389 is

mentioned as a period which is ‘a sufficient time to present the

Appeal and obtain orders of the Appellate Court’. The Trial

Court is empowered to grant bail for that limited period only. In

many cases, this follow up is not taken. There are other

corresponding provisions which need to be referred to as under :

Section 89 of Cr.P.C. (corresponding section 92 of BNSS) reads

thus:

89. Arrest on breach of bond for appearance

When any person who is bound by any bond taken

under this Code to appear before a Court, does not

appear, the officer presiding in such Court may issue a

warrant directing that such person be arrested and

produced before him

 Section 90 of Cr.P.C. (corresponding section 93 of

BNSS) reads thus :

90. Provisions of this Chapter generally applicable to

summons and warrants of arrest

The provisions contained in this Chapter relating to

a summons and warrants, and their issue, service

and execution, shall, so far as may be, apply to

every summons and every warrant of arrest issued

under this Code

Section 70 of Cr.P.C. (corresponding section 72 of

BNSS) and section 72 of Cr.P.C. (corresponding section 74 of

BNSS) read thus :

70. Form of warrant of arrest and duration

(1) Every warrant of arrest issued by a Court

under this Code shall be in writing, signed by

the presiding officer of such Court and shall

bear the seal of the Court

(2) Every such warrant shall remain in force

until it is cancelled by the Court which issued

it, or until it is executed

72. Warrants to whom directed

(1) A warrant of arrest shall ordinarily be

directed to one or more police officers; but

the Court issuing such a warrant may, if its

immediate execution is necessary and no

police officer is immediately available, direct

it to any other person or persons, and such

person or persons shall execute the same.

(2) When a warrant is directed to more officers

or persons than one, it may be executed by

all, or by any one or more of them

14. Thus, the Cr.P.C. and BNSS have exhaustive provisions

for ensuring the presence of the accused including the convicted

accused so that the orders passed by the Trial Courts are

effective. In the present case, as can be seen the Appeal was filed

after a delay of 538 days. It was a long period. Till then, no steps

were taken either by the Trial Court or by the Police Officers in

committing the Applicant to the prison so that he served out the

sentence imposed on him. This is happening in many cases,

which needs to be avoided. Therefore, the Trial Courts will have

to follow a disciplined procedure so that this is not repeated and

the order of conviction and sentence passed by the Trial Court

could be given effect to.

15. In such a situation, when an order is passed u/s 389

(3) of Cr.P.C. (corresponding section 430 of BNSS), the Trial

Courts shall place the application on a particular date, after the

period for which the sentence is suspended in a case gets over,

for compliance. The Trial Courts shall specify that the bond shall

be executed for his appearance on that particular date. The

application u/s 389 of Cr.P.C. (corresponding section 430 of

BNSS) shall be placed on that date for compliance and unless

the Applicant in such case produces, the order of the Appellate

Court suspending the sentence for a further period, the Trial

Court shall take steps to issue conviction warrant for execution

of sentence u/s 418 of Cr.P.C. (corresponding section 458 of

BNSS); unless, the Applicant shows sufficient reasons for

extending that period for a reasonably sufficient time. Section

418 of Cr.P.C. reads thus:

418. Execution of sentence of imprisonment.

(1) Where the accused is sentenced to

imprisonment for life or to imprisonment for a

term in cases other than those provided for by

section 413, the Court passing the sentence

shall forthwith forward a warrant to the jail or

other place in which he is, or is to be,

confined, and, unless the accused is already

confined in such jail or other place, shall

forward him to such jail or other place, with

the warrant:

Provided that where the accused is sentenced

to imprisonment till the rising of the Court, it

shall not be necessary to prepare or forward a

warrant to a jail and the accused may be

confined in such place as the Court may direct.

(2) Where the accused is not present in Court

when he is sentenced to such imprisonment as

is mentioned in sub-section (1), the Court

shall issue a warrant for his arrest for the

purpose of forwarding him to the jail or other

place in which he is to be confined; and in

such case, the sentence shall commence on the

date of his arrest.

16. If the Applicant is not present before the Court, then

the Trial Court can take recourse to section 89 of Cr.P.C.

(corresponding section 92 of BNSS) by issuing warrant for

breach of the bond. This procedure will ensure that the orders

passed granting bail post conviction for a limited period are not

misused by the convicted accused unless the sentence is

suspended by the Appellate Court. All these practices and

procedure can be based on the above provisions of Cr.P.C. and

the corresponding provisions from BNSS, which shall be

followed by the Trial Courts. Even the investigating agency has

a role to play. It is their duty to see that the convicted accused

undergoes his sentence. The investigation has to be taken to its

ultimate logical end.

17. Hence, the following order :

 O R D E R

(i) The sentence imposed on the Applicant by the

learned Special Judge, Nashik, in Special case

(POCSO) No.50/2022, vide the Judgment and

Order dated 28/11/2023, is suspended and the

Applicant is granted bail pending his Appeal on

his furnishing P.R. Bond in the sum of Rs..25,000/-

(Rupees Twenty Five Thousand only), with one or

two sureties in the like amount.

(ii) The copy of this order shall be circulated to all

the Principal District and Sessions Judges so that

it can be further circulated to the Additional

Sessions Judges and all the Judicial Magistrates

First Class within the jurisdiction of this Court.

(iii) Registry to take steps in that behalf.

(iv) The Principal District and Sessions Judges shall

ensure that the orders passed u/s 389 of Cr.P.C.

(corresponding section 430 of BNSS) are not

misused in any manner.

(v) It is clarified that the investigating agency also

has a role to play. If the temporary period for

which the bail is granted u/s 389 of Cr.P.C. is

over, then the investigating agency shall

approach the Trial Court to point out this fact.

This would be part of their duty as well.

(vi) The application is disposed of.

(SARANG V. KOTWAL, J.)