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EXPLORING THE LEGAL MIRAGE: AN ANALYSIS OF THE SUSPENSION OF CONVICTION IN CRIMINAL CASES

INTRODUCTION

The discipline of criminology deals with the study of crimes, criminal behaviour and the methods to extirpate and reduce the crime rate in society. The breaking of laws and the community’s response to the same make up a unified sequence of interactions[1]. The justice dispensation system is one of the parts of these interactions. Guided by the legal framework, the courts decide a matter following a meticulous criminal trial. On finding the accused guilty of an offence, the judge orders his conviction. A conviction is an adjudication of an offender’s guilt; specifically, it is the act of finding the offender guilty of an offence[2].

This blog clarifies the distinction between sentence and conviction with lucidity. It also attempts to expound the provision for suspension of the same with the help of relevant case laws.

THE SUSPENSION OF THE SENTENCE

The conviction of an accused in a criminal case is followed by punishment with or without a monetary fine to serve the interests of justice. A sentence to jail is one of the punishments as prescribed under Section 53(3) IPC[3] under which the convict is imprisoned for a fixed term of his life as directed by the learned judge in the order.

The decision of a court that holds the person guilty of an offence is subject to be challenged by way of appeal in the appellate courts. The concept of a criminal appeal is characterised by the notion of reversing the impugned judgement and setting aside the conviction held by the lower court owing to any legal or factual error. If the offender intends to file an appeal against the judgement in the appellate court or if he has already filed an appeal, would he have to keep on serving his sentence in prison or he may be free till the appeal has been decided?

Section 389 of the Criminal Procedure Code, 1973[4] addresses the above question. Sub-section (1) of Section 389 states, “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 his own bond[5].

This section gives power to the appellate court to suspend the sentence imposed on the convict. It may be used by the court for suspending a sentence during the pendency of an appeal against the order of conviction. The application for bail and suspension of sentence is maintainable only in a pending appeal[6]. This implies that when an appeal in a criminal case is pending in the appellate court, the person who has been found guilty by the lower court “may” be released on bail or bond.

Subsequently, Section 389(3) states, “Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall;                

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail,

order that the convicted person be released on bail unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under Sub-Section (1). The sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended”[7].

Unlike Section 389(1), subsection (3) mandates the court to release the convicted person on bail if he satisfies the court that he intends to present an appeal within the stipulated time. The court “shall” release such a person on bail and suspend the sentence till the appeal gets disposed of. However, two conditions must be met necessarily to avail of the order of suspension:

  1. The term of the sentence should not exceed three years.
  2. The offence of which he was convicted is bailable.

Both conditions carry the pre-requisite that the convicted person is already released on bail. In the absence of any reasonable ground to deny the bail, the appellate court has to pass an order of suspension of sentence as per sub-section (1). The power of the appellate court to grant bail and release the person under Section 389 is discretionary. Therefore, the courts must exercise this power judicially and record appropriate reasons for the same[8].

THE SPORADIC SUSPENSION OF CONVICTION

The decision of conviction is followed by an order of the sentence after giving a reasonable opportunity to the defence to argue for reducing the term of the sentence. However, the question arises as to whether the order of conviction, which identifies the person guilty of the offence, can be suspended or not. Ordinarily, the conviction is not suspended as frequently as the sentence. Generally, the power of suspending the conviction is exercised by the courts sparingly.

The recent case of Rahul Gandhi v. Purnesh Ishvarbai Modi[9] bears the contention on the legal position of suspension of conviction. Congress leader Rahul Gandhi was convicted in a ubiquitous defamation case[10]. He had obtained the order of suspension of sentence under Section 389(1) Cr.P.C. but thereafter he also filed an appeal challenging his conviction. The conviction also led to his disqualification as a Member of Parliament.

Here, the dichotomy between conviction and sentence can be well understood. The court passes the order of sentence based on the offence of which the person is convicted. And in the interests of justice, a leave for appeal is allowed by suspending the sentence. The sentence in Rahul Gnadhi’s case has been suspended but his appeal for the suspension of conviction is dismissed by the Gujarat High Court recently[11]. An order of suspension of conviction holds great significance for him as it could occlude the application of Section 8(3) of the Representation of the People Act, 1951[12]. It states that if an MP is convicted of an offence for which the punishment is not less than imprisonment for two years, he shall be disqualified from the date of such conviction[13]. So, the suspension of conviction will also reinstate his membership in Parliament. There have been instances in the past when the stay was put on the conviction.

In the landmark case of Navjot Singh Sidhu v State of Punjab & Anr.[14] the appellant was a Member of Parliament, who was convicted under Section 304 part II IPC[15]. Further, his sentence was suspended and he filed an appeal to suspend the conviction as well so that his membership in Parliament could be reinstated. He also resigned from his membership and intended to contest the elections again. Taking all the facts and circumstances into consideration, the Supreme Court opined that Sidhu’s act of resignation from his seat was an example of morality. Therefore, contesting the election will be a purely justified act on his part. If his conviction is not suspended, it will cause irreparable damage to him as he would not be able to contest the election. Hence, it was held that his conviction deserves to be set aside.

In the case of Rama Narang v. Ramesh Narang & Ors.[16] the effect of stay or suspension of conviction was clarified. It was held that, though not explicitly mentioned under Section 389, the suspension of conviction is also allowed along with that of the sentence. However, the power of putting a stay on conviction is to be exercised in rare cases. The court explained that an order of suspension of conviction does not render the conviction non-existent, but only non-operative[17]. It implies that such suspension does not eliminate the conviction. It remains on record for the time being till the appeal is disposed of. It only ensures its non-enforceability during the suspension period.

CONCLUSION

The right to appeal after conviction is protected under Section 389 which also saves the convicted person from facing the consequences of the conviction, i.e. serving the sentence. Granting the suspension of conviction is a rare practice that is supposed to be exercised only after proper scrutiny of the facts and circumstances. It should not be granted unless the convicted person does not face any irreparable loss despite his full compliance and benevolent behaviour. If the individual successfully complies with the conditions set during the suspension period, the court may consider reducing the sentence or otherwise modifying the original conviction. The implicit provision for suspension of conviction complements the practice of exercising justiceable discretion by the courts for meeting the ends of justice.

Author(s) Name: Sarthak Kulshrestha (Jagran Lakecity University, Bhopal)

Reference(s):

[1] Edwin H. Sutherland, Principles of Criminology (4th edn, 1947) 1

[2] ‘Conviction’ (Cornell Law School, June 2021) <https://www.law.cornell.edu/wex/conviction> accessed 18 July 2023

[3] Indian Penal Code 1860, s 53(3)

[4] Code of Criminal Procedure 1973

[5] Code of Criminal Procedure 1973, s 389(1)

[6] Gopal v State of Madhya Pradesh (1999) Cri LJ 167

[7] Code of Criminal Procedure 1973, s 389(3)

[8] Khilari v State of UP (2009) Cri LJ 1740

[9] Rahul Gandhi v Purnesh Ishvarbai Modi  CRA 521/2023

[10] Sohini Ghosh ‘Rahul Gandhi appeals defamation conviction: Here is what he has argued’ (The Indian Express, 7 April 2023) <https://indianexpress.com/article/explained/explained-law/what-rahul-gandhis-appeal-in-the-defamation-case-says-8541774/> accessed 18 July 2023

[11] Narsi Benwal ‘Gujarat High Court refuses to stay conviction of Rahul Gandhi in Defamation for remark on “Modi” surname’ (Bar and Bench, 7 July 2023) <https://www.barandbench.com/news/gujarat-high-court-refuses-stay-conviction-rahul-gandhi-defamation-case-remark-modi-surname> accessed 18 July 2023

[12] Representation of People Act 1951, s 8(3)

[13] Ibid

[14] Navjot Singh Sidhu v State of Punjab and Anr App (Crl) 59/2007

[15] Indian Penal Code 1860, s 304B

[16] Rama Narang v Ramesh Narang and Ors (1995) SCC (2) 513

[17] Ibid