Section 389(1) CrPC deals with the powers of the appellate court regarding suspension of execution of the sentence or order appealed against during the pendency of the appeal. It reads as follows: “Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond”.
As per Section 389(1) CrPC, the Appellate Court can suspend execution of sentence or execution of order appealed against. But the provision does not speak about suspension of conviction.
Does ‘Order’ in Section 389(1) mean order of conviction or an order similar to the one under Sections 357 or 360 of the Code? This question was considered by the Apex Court in Rama Narang vs. Ramesh Naraang & ors. {1995 (2) SCC 513. The court noted that an order referred to in Section 389(1) must be an order capable of execution and an order of conviction by itself is not capable of execution under the Code.
But In certain situations the order of conviction can be executable. [like it may result in disqualification]. The court thus examined whether the scope of Section 389(1) of the Code extends to conferring power on the Appellate Court to stay the operation of the order of conviction. “If the order of conviction is to result in some-disqualification of the type mentioned in Section 267 of the Companies Act we see no reason why we should give a narrow meaning to Section 389(1) of the Code to debar the court from granting an order to that effect in a fit case. The appeal under Section 374 is essentially against the order of conviction because the order of sentence is merely consequential thereto; albeit even the order of sentence can be independently challenged if it is harsh and disproportionate to the established guilt. Therefore, when an appeal is preferred under Section 374 of the code the appeal is against both the conviction and sentence and therefore, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction.”, the Court held.
In K.C. Sareen v. Central Bureau of Investigation (2001) 6 SCC 584, the Supreme Court clarified that though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Code, its exercise should be limited to very exceptional cases. “Merely because the convicted person files an appeal in challenge of the conviction the court should not suspend the operation of the order of conviction. The court has a duty to look at all aspects including the ramifications of keeping such conviction in abeyance.”, it said.
These observations have been reiterated in State of Maharashtra vs. Balakrishna Dattatrya Kumbhar, (2012) 12 SCC 384 as follows: “The appellate court in an exceptional case, may put the conviction in abeyance along with the sentence, but such power must be exercised with great circumspection and caution, for the purpose of which, the applicant must satisfy the court as regards the evil that is likely to befall him, if the said conviction is not suspended. The court has to consider all the facts as are pleaded by the applicant, in a judicious manner and examine whether the facts and circumstances involved in the case are such, that they warrant such a course of action by it. The court additionally, must record in writing, its reasons for granting such relief. “ [Also see Ravikant S. Patil v. Sarvabhouma S. Bagali (2007) 1 SCC 673, Lok Prahari vs. Election Commission of India, (2018) 18 SCC 114 ]
In State of Maharashtra v. Gajanan [(2003) 12 SCC 432 : 2004 SCC (Cri) Supp 459] , Union of India v. Atar Singh [(2003) 12 SCC 434 : 2004 SCC (Cri) Supp 461] , [which were cases under the Prevention of Corruption Act, 1988], the court dealt with specific situation of loss of job and it was held that it is not one of exceptional cases for staying the conviction. In KC Sareen (supra), it was held that when conviction is on a corruption charge against a public servant the appellate court or the revisional court should not suspend the order of conviction during the pendency of the appeal even if the sentence of imprisonment is suspended. It would be a sublime public policy that the convicted public servant is kept under disability of the conviction in spite of keeping the sentence of imprisonment in abeyance till the disposal of the appeal or revision, thhe court had observed.
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