MASOOD ALI KHAN versus STATE OF U.P. AND ORS.

Citation: [2009] 1 S.C.R. 859 · Decided: 05-02-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed
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Judgment (excerpt)

[2009) 1 S.C.R. 859 
·- ~ 
MASOOD ALI KHAN 
A 
v. 
STATE OF U.P. AND ORS. 
(Criminal Appeal No. 213 of 2009) 
FEBRUARY 5, 2009 
8 
_ _>!-
[DR. ARIJIT PASAYAT AND ASOK KUMAR 
GANGUL Y, JJ.] 
Code of Criminal Procedure, 1973 - s.389 - Suspension 
of sentence pending appeal and release on bail - Death due c 
to assault with sharp edged weapons - Conviction u/s.302 
/PC and sentence of life imprisonment - During pendency of 
criminal appeal, application for release on bail - High Court 
granted bail - Challenged - Held: Order directing suspension 
of sentence and grant of bail should not be passed as a matter D 
of routine - In cases involving conviction under s.302 /PC, it 
is only in exceptional cases that benefit of suspension of 
sentence can be granted - In considering prayer for bail in 
such case, Courts ought to_ consider factors like nature of 
accusation, manner in which crime was allegedly committed, 
E 
gravity of the offence, and desirability of releasing the accused 
on bail - These aspects were not considered by High Court 
- Accused directed to surrender to custody - Bail. 
According to the prosecution, respondents 2 to 4 
alongwith two co-accused assaulted the appellant's 
F 
brother with various sharp edged weapons which 
caused his death. The trial Court convicted the 
respondents 2 to 4 u/s. 302 IPC and sentenced them to 
life imprisonment. During pendency of criminal appeal, 
respondents 2 to 4 filed application for release on bail. 
G 
The High Court granted bail. Hence the present appeal. 
Allowing the appeal, the Court 
859 
H 
860 
SUPREME COURT REPORTS 
[2009] 1 S.C.R. 
A 
HELD:1.1. S.389 Cr.P.C. 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 
8 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 
C 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. [Para 8) (865-G-H; 866-A-B] 
1.2. The mere fact that during the trial, the accused 
D 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 accus~d persons have been found 
guilty. The mere fact that during the period when the 
E 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 
F sentence and thereafter grant bail. The High Court does 
not seem to have kept the correct principle in view. [Para 
9) (866-C-D] 
1.3. In cases involving conviction under s.302 IPC, it 
is only in exceptional cases that the benefit of 
G suspension of sentence can be granted. The impugned 
order of the High Court does not meet the requirement. 
In considering the prayer for bail in a case involving a 
serious offence like murder punishable under s.302 IPC, 
the Court should consider the relevant factors like the 
H 
r 
MASOOD ALI KHAN v. STATE OF U.P. AND ORS. 
861 
nature of accusation made against the accused, the 
A 
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. 
These aspects have not been considered by the High 
B 
Court, while passing the impugned order. [Para 1 O] [866-
E-G] 
1.4. Looked at from any angle the order of the High 
Court is clearly indefensible and is set aside. C 
Respondents 2 to 4 shall surrender to custody forthwith. 
[Para 12] [867 -8] 
Vijay Kumar v. Narendra and others (2002) 9 SCC 364; 
Ramji Prasad v. Rattan Kumar Jaiswa/ and another (2002) 9 
SCC 366; Kishori Lal v. Rupa and Ors. (2004) 7 SCC 638; 
D 
Vasant Tukaram Pawar v. State of Maharashtra (2005) 5 SCC 
281 and Gomti v. Thakurdas and Ors. (2007) 11 SCC 160 -
relied on. 
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