S. 389 CrPC | To Suspend Sentence, HC Should Assess If Convict Has Fair Chance Of Acquittal : Supreme Court

The Supreme Court on Wednesday (Aug. 6) set aside the Rajasthan High Court's order granting bail and suspending the sentence of a man convicted under the POCSO Act for sexually assaulting a minor girl, observing that the High Court failed to assess whether the convict has a fair chance of acquittal.

“One would have expected the High Court hearing an application under Section 389 of Cr.P.C. for suspension of sentence to examine whether prima facie there was anything palpable on the record to indicate if the accused had a fair chance of overturning the conviction.”, the court said.

The bench comprising Justices B.V. Nagarathna and K.V. Viswanathan, while referring to Omprakash Sahni v. Jai Shankar Chaudhary & Anr. 2023 LiveLaw (SC) 389, observed that when considering an application for suspension of sentence under Section 389 of the Cr.P.C., the Court must examine whether the material on record is sufficiently strong to prima facie suggest the likelihood of the convict's acquittal.

“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.”, the Court explained in Omprakash Sahni.

Respondent No. 2 was convicted under Section 3/4(2) of the Protection of Children from Sexual Offences Act, 2012 and Section 376(3) of the Indian Penal Code, 1860. He later sought suspension of his sentence, which was granted by the High Court, leading to the present appeal before the Supreme Court.

Applying the law laid down in Omprakash Sahni, the judgment authored by Justice Viswanathan observed:

“Taking into account the fact that the High Court has not adverted to any of the relevant factors for considering the case for suspension under Section 389 and keeping in mind the antecedents, we are of the opinion that High Court was not justified in suspending the sentence.”

The Court gave weightage to the ocular testimony of the prosecutrix, stating that the convict's argument of absence of cogent medical evidence for its conviction, cannot hold good stating that the trial court rightly found that the prosecution has explained the situation about the non-availability and has also found that the non-availability of the DNA Report did not adversely affect the case of the prosecution.

Resultantly, the appeal was allowed, directing the Respondent No.2-convict to surrender before the trial court, from where he shall be taken into custody.

Cause Title: JAMNALAL VERSUS STATE OF RAJASTHAN AND ANOTHER

Citation : 2025 LiveLaw (SC) 779

Click here to read/download the judgment

Appearance:

For Petitioner(s) Mr. K. L. Janjani, AOR Mr. Kailash J. Kashyap, Adv.

For Respondent(s) Ms. Sansriti Pathak, A.A.G. Ms. Shagufa Khan, Adv. Mr. Aman Prasad, Adv. Ms. Nidhi Jaswal, AOR Mr. Namit Saxena, AOR