Section 430, BNSS 2023 — the substance

(1) 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:

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.

(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall, in the cases the section specifies, order that he be released on bail for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court; and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

📖 Bhagwan Rama Shinde Gosai v. State of Gujarat, (1999) 4 SCC 421

Facts: Appellants sentenced to short terms of imprisonment applied for suspension of sentence pending their appeals, which were unlikely to be heard for a considerable time. The applications were refused, so that the sentences would have been substantially served before the appeals could be decided.

Held: The Supreme Court held that when a convicted person is sentenced to a fixed period and files an appeal, the Court should normally suspend the sentence where it appears that the appeal is not likely to be disposed of within a short time — because otherwise the appeal itself becomes an empty formality: the appellant will have served the whole sentence by the time it is heard, and a favourable judgment will give him nothing. The Court held that in such a case the appellate court has two proper courses: to hear the appeal expeditiously, or, if that is not feasible, to suspend the sentence and release the appellant. What it should not do is refuse both, leaving the appellant to serve a sentence he may not deserve while his challenge to it waits. The Court observed that the position is different where the sentence is long, since the appeal can then be heard well before it is served.

Ratio: Where a fixed-term sentence is short and the appeal is unlikely to be heard soon, the Court should either hear the appeal expeditiously or suspend the sentence. Refusing both makes the appeal an empty formality.

📖 Atul Tripathi v. State of Uttar Pradesh, (2014) 9 SCC 177

Facts: A sentence was suspended and the convicted person released pending his appeal in a case involving a grave offence, without the Public Prosecutor being given the opportunity of showing cause in writing which the proviso requires, and without reasons being recorded.

Held: The Supreme Court held that the requirement in the proviso is mandatory. Where the conviction is for an offence punishable with death, imprisonment for life or imprisonment for not less than ten years, the appellate court shall give the Public Prosecutor an opportunity of showing cause in writing against the release, and it must consider what he says. The Court held that the requirement that reasons be recorded in writing is equally mandatory: an order suspending a sentence in such a case must show that the Court considered the nature of the offence, the manner of its commission, the gravity of the sentence and the objections of the State, and that a cryptic order — one which merely records that the application is allowed — does not satisfy the section. It emphasised that suspension in a grave case is not a matter of course, since a conviction by a competent court is a subsisting judicial determination of guilt, and set aside the order.

Ratio: The Public Prosecutor’s opportunity to show cause in writing is mandatory where the conviction is for an offence punishable with death, life or ten years or more, and so is the recording of reasons. A cryptic order does not satisfy the section.

The position stated shortly

1. Section 430(1): pending an appeal by a convicted person, the Appellate Court may, for reasons to be recorded in writing, suspend the execution of the sentence and, if he is in confinement, release him on bail or on his own bond.

2. Suspension and release are distinct orders. The sentence must be suspended before the appellant can be released, and suspension does not by itself set him free.

3. Reasons must be recorded in writing. A cryptic order merely allowing the application does not show that the discretion was exercised.

4. Where the conviction is for an offence punishable with death, imprisonment for life, or not less than ten years, the Court shall give the Public Prosecutor an opportunity of showing cause in writing — and that requirement is mandatory: Atul Tripathi.

5. Where the appellant is released, the Public Prosecutor may apply for cancellation of the bail.

6. Section 430(2): the power may be exercised also by the High Court where the appeal is to a subordinate court.

7. Section 430(3): where the convicted person satisfies the convicting Court that he intends to appeal, that Court may itself release him on bail for a period sufficient to present the appeal, and the sentence is deemed suspended meanwhile.

8. Section 430(4): the time during which he is so released is excluded in computing the term of the sentence if the appeal fails.

9. Where the sentence is for a fixed and short term and the appeal cannot be heard soon, the Court should either hear the appeal expeditiously or suspend the sentence; refusing both makes the appeal an empty formality: Bhagwan Rama Shinde Gosai.

10. The question differs from bail before trial: the presumption of innocence has been displaced, and suspension in a grave case is not a matter of course.