Isabella Mariam

The High Court of Rajasthan, Single Bench of Justice Farjand Ali, while allowing a suspension of sentence application in an NDPS matter, held that an appellate court's discretion under Section 389 CrPC must be exercised with particular care when there is reason to believe the appeal will not receive an early hearing — since any period of incarceration served cannot be restored if the appeal eventually succeeds. Noting that thousands of criminal appeals in the High Court have remained pending for two to three decades with little prospect of imminent hearing, the court granted bail to a convict sentenced to one year's imprisonment, observing that the grounds raised carried sufficient force to warrant a real possibility of acquittal upon adjudication.

The matter arose from a judgment delivered by the Special Judge, NDPS Cases, Rawatsar, District Hanumangarh, convicting the accused under Section 8/15(B) of the NDPS Act. The trial court sentenced him to one year of imprisonment along with a fine of Rs.10,000.

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The appellant challenged the conviction before the High Court, contending that the trial court had not properly appreciated the legal and factual aspects of the case. It was argued that the findings of guilt were erroneous and required re-examination by the appellate court.

The prosecution opposed the application for suspension of sentence, maintaining that the conviction was valid and that the appellant should not be released during the pendency of the appeal. The dispute centered on whether the trial court’s evaluation of evidence and application of statutory provisions were sustainable in law.

The Court observed that there exists "a fine yet significant distinction between the grant of bail under Section 439 of the Code of Criminal Procedure, 1973, and the suspension of sentence under Section 389 Cr.P.C." It stated that while both powers are discretionary, the core consideration under Section 389 CrPC "must necessarily be whether the judgment of conviction and the consequent order of sentence are sustainable in the eyes of law."

The Court recorded that "the presumption of innocence, which ensures in favour of an accused, comes to an end upon conviction." It further stated that where the trial court's conclusions appear erroneous and "logical, legal and sustainable arguments are advanced assailing the findings, disclosing a strong and arguable case, the appellate court is duty-bound to consider such contentions."

The Court observed that "where the sustainability of the conviction itself becomes debatable, and where the grounds raised in appeal, if adjudicated in favour of the appellant, disclose a real and substantial possibility of success, and where, prima facie, it appears that the conviction may be reversed and the appellant may be acquitted, the appellate court ought to suspend the sentence pending disposal of the appeal."

The Court stated that "such discretion deserves to be exercised with greater circumspection in cases where the appellate forum has sufficient reason to believe that the appeal is not likely to be taken up for hearing in the near future" and that "if the appeal ultimately succeeds, the period of incarceration already undergone cannot be undone or restituted."

The Court further stated that "it is sufficient if the court merely indicates that the grounds raised are prima facie appreciable, logical and legally tenable, that they are founded upon settled principles of law, and that there appears to be improper evaluation or assessment of evidence, or non-consideration / disregard of relevant statutory provisions."

On the issue of pendency, the Court observed that "in the High Court, thousands of criminal appeals have remained pending for the last 20–30 years, including jail appeals, where even the likelihood of early hearing does not appear forthcoming. In such matters, instead of taking an irreversible risk, the court must proceed on the safer side by placing paramount importance on human dignity and personal liberty."

The Court directed that “the application for suspension of sentence filed under Section 389 Cr.P.C. is allowed and it is ordered that the sentence passed by learned trial court… shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail provided he executes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each. He will appear before the trial Court in the month of January of every year till the appeal is decided.”

“If the applicant change the place of residence, he will give in writing their changed address to the trial Court as well as to the counsel in the High Court. if the sureties change their address(s), he will give in writing their changed address to the trial Court.”

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The learned trial Court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicant do not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail.

Advocates Representing the Parties

For the Petitioners: Mr. Mrinal Khatri, Mr. Anjali Kaushik
For the Respondents: Mr. NS Chandawat, Public Prosecutor

Case Title: Roop Singh v. State of Rajasthan
Neutral Citation: [2026:RJ-JD:5717]
Case Number: S.B. Criminal Suspension of Sentence Application No.187/2026 in S.B. Criminal Appeal No.205/2026
Bench: Justice Farjand Ali