Can Appellate Court Cancel Suspension Of Sentence On Application By Anyone Apart From Public Prosecutor?
At the pre-conviction stage i.e., during trial, an accused moves a bail petition u/s 439 CrPC before the Sessions Court or the High Court or u/s 437, as the case may be. Once she is convicted post-trial in a non-bailable offence and the sentence awarded is more than 3 years, the accused seeks suspension of the execution of sentence during the pendency of the appeal u/s 389 CrPC. It is, therefore, important to bear in mind that while Section 439 is at the pre-conviction stage, Section 389 is at the post-conviction stage.
If anyone is aggrieved by the grant of bail to the accused at the pre-conviction stage, she has two remedies. One, if there is a breach of bail conditions imposed upon the accused or subsequent events compel her to bring them to the court’s notice, she may file an application u/s 439(2) seeking cancellation of bail. Interestingly, Section 439(2) reads as follows – “A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.” Thereby, it shall be open for anyone, irrespective of her being the victim, the complainant, the aggrieved or the public prosecutor to approach the court which granted bail to seek cancellation of the same. Second, if anyone alleges an illegality in the order granting bail to the accused, the correct procedure is to approach the higher forum.
At the post-conviction stage, if the appellate court suspends the sentence u/s 389 CrPC and one wishes to seek cancellation of such suspension, the criteria is not similar to Section 439(2). Under Section 389, the appellate court has the power to suspend the sentence (if not in confinement) and also release the accused on bail or on his own bond (if in confinement). The two conjoint provisos to Section 389(1) as added after the 2005 amendment to CrPC are very relevant at this juncture–
“Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:
Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.”
The two provisos are to be read together which is clear from the use of ‘provided further’ in the second proviso. Interestingly, while Section 439(2) keeps it open-ended without any indication as to who may apply for cancellation of bail under the chapter [including Sections 436, 437 and 438 as well], the second proviso to Section 389(1) categorically mentions that it shall be open to the Public Prosecutor to seek cancellation of bail only where the accused was in confinement and was released on bail.
Five things flow here. First, there is no express right to seek cancellation of suspension of the sentence where the accused was not in confinement. Only when the accused was in confinement and was released on bail, the second proviso kicks in. Secondly, if the legislative intent was to allow anyone to seek cancellation of the suspension of sentence, the second proviso could have been worded to not indicate that it shall be open to the Public Prosecutor alone to file an application seeking cancellation. Thirdly, the expression ‘it shall be open to the public prosecutor’ may imply that it being in flow with the first proviso which mandates hearing the public prosecutor where punishment is more than 10 years, the intent may have been to grant the public prosecutor an express right to seek cancellation. Fourthly, an interpretation may also go that the proviso does not bar any person apart from the public prosecutor to approach the court seeking cancellation. However, whether such an application can be filed u/s 389(1) proviso is debatable. Fifthly, the rule of locus standi in criminal law must also be given adherence to. The role of the complainant is extremely limited to filing objections u/s 301 and 302 CrPC. A criminal case is strictly between the prosecution (state) and the accused. With the court’s permission, the complainant may assist the public prosecutor but the complainant cannot be given equal footing as that of a public prosecutor.
Interestingly, till 2009 neither was the expression ‘victim’ defined in the CrPC nor was a victim given any right to appeal or so as such. In 2009, the major amendment to this effect was brought in. However, this amendment also did not alter the provisos to Section 389(1) to grant her a right to seek cancelation of suspension of sentence.
With this background, let us see how the judiciary has interpreted the law on this issue. The Patna High Court in 2012 in an application u/s 389 CrPC in Madhusudan Prasad held as follows– “So far other aspect which is the maintainability of the petition is concerned, it is apparent that proviso to Section 389 Cr.P.C. authorizes only the public prosecutor to move for cancellation of bail. After amendment only State Public Prosecutor is entitled to maintain the application.”
Ten months later, a division bench of the Orissa High Court in an application u/s 482 CrPC seeking cancellation of bail held that the law laid down in Madhusudan Prasad was not correct law. It further held that a bare reading of Section 389 CrPC makes it clear that though liberty has been given to the Public Prosecutor to file an application for cancellation of bail, it nowhere restricts any other affected person or relative of a victim from moving for cancellation of bail granted u/s 389(1) CrPC. Interestingly, instead of cancelling the bail u/s 389 CrPC, the High Court chose to do so under its inherent powers in Section 482 CrPC.
Recently, the Madhya Pradesh High Court, in Mahesh Pahade in an application u/s 389 CrPC seeking cancellation of bail, held that once the right of appeal has been given to a victim, it shall include all ancillary rights which are attached with the right to appeal. Such right to appeal will include right to seek cancellation of bail if the victim is aggrieved against such an order.
I could not find an authoritative pronouncement by the Supreme Court on this particular aspect. However, in my view, going by the text of the law, it is open to the public prosecutor u/s 389(1) to seek cancellation. It cannot be stretched to include anyone else. However, in exceptional circumstances where the public prosecutor failed to bring certain aspects to the notice of the court while deciding on the suspension of sentence, the complainant or the victim may be permitted to trace it to the court and leave it to its wisdom to entertain the same or not.
The author is an advocate practicing primarily at the Supreme Court and is the revising co-author of Ratanlal & Dhirajlal’s Code of Criminal Procedure.