📖 State of Maharashtra v. Suresh Pandurang Darvakar, (2006) 4 SCC 776

Facts: A sentence was suspended pending appeal by an order which set out no reasons and gave no indication that the Court had considered the nature of the offence or the material against the convict. The State challenged it.

Held: The Supreme Court held that the power to suspend a sentence pending appeal is to be exercised judicially, and that the provision expressly requires reasons to be recorded in writing. The Court held that an order which merely allows the application, without indicating why, does not show that the discretion was exercised at all, and is liable to be set aside. It held that after conviction the presumption of innocence has been displaced, so that the approach differs from that on an application for bail before trial: the Court must consider the nature of the offence, the manner of its commission, the material on which the conviction rests, the length of the sentence against the time the appeal will take, and the conduct of the appellant. It emphasised that in the grave cases the section names, the Public Prosecutor must be given an opportunity of showing cause in writing — and that an order made without affording it is not sustainable.

Ratio: The power to suspend a sentence pending appeal is to be exercised judicially, and the provision expressly requires reasons in writing. An order which merely allows the application does not show that the discretion was exercised at all.

📖 Ashfaq v. State (Government of NCT of Delhi), (2004) 3 SCC 116

Facts: An application for suspension of sentence pending appeal was refused, and the question was what a court should weigh on such an application and how it differs from an application for bail before conviction.

Held: The Supreme Court held that an application for suspension of sentence pending appeal stands on a different footing from an application for bail before trial, because the applicant has been found guilty after a full trial and the presumption of innocence no longer operates in his favour. It held that the Court should consider the nature of the accusation, the manner in which the offence was committed, the gravity of the offence, and the desirability of releasing the appellant having regard to the material on which the conviction rests. But the Court held that where the sentence is short and the appeal is not likely to be heard for a long time, refusing suspension may mean that the appellant serves the whole sentence before his appeal is decided — in which case the right of appeal becomes illusory. It held that in such a case the Court should either hear the appeal expeditiously or suspend the sentence, and emphasised that each case turns on its own facts.

Ratio: An application to suspend a sentence pending appeal differs from bail before trial, the presumption of innocence having been displaced. But where the sentence is short and the appeal will not be heard for years, refusing suspension makes the right of appeal illusory.

⚠ The clearest proof that suspension is not remission

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

So suspension shortens nothing. It merely moves the service of the sentence to a later date — and the appellant who is released for two years and loses his appeal still owes those two years.

A remission is the opposite: what is remitted is gone, and the convict does not serve it at all unless a condition attached to it is broken.

Which is why a conditional remission and a suspension are sometimes confused in practice — both may be cancelled and both may result in the person being retaken. But what he then serves is different, and the difference can amount to years.

The position stated shortly

1. On a suspension the sentence remains in force and only its execution is held in abeyance. On a remission part of it is wiped out.

2. The test: ask what he serves if retaken. On a cancelled suspension, the whole of what remained; on a cancelled remission, the unexpired portion.

3. A suspension may be ordered by the Appellate Court (section 430), the High Court or Sessions Judge (section 438(1)), or the Government (section 473). A remission by the Government alone.

4. Neither touches the conviction.

5. Suspension and release are two orders, and an order suspending a sentence does not by itself set the appellant free.

6. Reasons must be recorded, and in the grave cases the section names the Public Prosecutor must be heard: Suresh Pandurang Darvakar.

7. An order which merely allows the application does not show that the discretion was exercised at all.

8. After conviction the presumption of innocence is displaced, and the approach differs from bail before trial: Ashfaq.

9. But where the sentence is short and the appeal will not be heard for years, refusing suspension makes the right of appeal illusory — and the Court should either hear the appeal expeditiously or suspend.

10. Section 430(4): the time on release is excluded in computing the sentence if the appeal fails — which is the clearest proof that suspension shortens nothing.