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Bail when Appeal is pending in Supreme Court

The Special Leave Petition is filed by accused u/a 136 of Constitution

of India before Hon’ble Supreme Court of India, who has been
convicted by High Court. Supreme Court is exercising appellate
criminal as well as civil jurisdiction under Article 136 of Constitution of
India. There are certain situations prescribed in Code Criminal
Procedure, 1973 or any other special legistations, when SLP (crl.) or
Criminal appeal is filed before Supreme Court. An appeal is a process
by which a judgment/order of a subordinate Court is challenged
before its superior court. A party to a case does not have any inherent
right to challenge the judgment/order of subordinate Court before its
Superior Court. Appeal or Special leave petition has to be filed in the
specified manner in the specified Courts. After hearing counsel for
accused, there are two possibilities that either the case is dismissed
or notice was issued generally to State by Hon’ble Supreme Court.
During pendency there is possibility that leave would be granted by
Supreme Court or if its a short matter then Supreme Court will hear
the matter and disposed the matter and grant the matter then there
only. However, generally SLP filed against conviction arising out of
henious offence, if notices were issued by Supreme Court, then leave
were granted by Supreme court by which SLP (crl.) would be
converted into Criminal appeal.

Basic theory of criminal jurisprudence that an accused is found

innocent till there happens to be finding of a court of competent
jurisdiction, once a verdict of guilt comes out, the presumption of
innocence got erased. As soon as, accused is found guilty, convict
has been given statutory right to file an appeal or revision, as the
case may be. And that happens to be reason behind that with regard
to statutory appeal provision of bail till pendency of appeal after
suspension of sentence has been provided, though subject to proper
consideration by the appellate court, in case the sentence is found
more than three years, otherwise, the lower court will itself allow in
terms of Sections 389(3) of the CrPC even then subject to Section
389(1) CrPC.

On account of shortcoming of strength of the judges in comparison to

filing, pendency of the appeal, backlog is found piled up due to which
Court is not in a position to hear the appeal of an accused within a
reasonable period of time, the Court should ordinarily, unless there
are cogent grounds for acting otherwise, release1 the accused on bail
in cases where special leave has been granted to the accused to
appeal against his conviction and sentence. That accused were
released on bail during pendency of appeal on the ground that it
would indeed be a travesty of justice to keep a person in jail for a
period of five or six years for an offence which is ultimately found not
to have been committed by him. Can the Court ever compensate him
for his incarceration which is found to be unjustified?

The Supreme Court has same powers as the High Court for granting
bail to the accused pending his appeal. Where an appeal by a
convicted person is pending before the court, the court may by
reasons to be recorded by it in writing, suspend the sentence passed
against the convict and if the convict is in confinement grant him bail.

Bail during pendency of appeal can’t be granted in routine2 and in

mechanical manner and it has to be judged objectively. The
requirement of recording reasons in writing clearly indicates that there
has to be careful consideration of the relevant aspects and the order
directing suspension of sentence and grant of bail should not be
passed as a matter of routine. The mere fact that during the trial, they
were granted bail and there was no allegation of misuse of liberty, is

1Kashmira Singh vs. State of Punjab 1977(4) SCC 291

2Kishori Lal v. Rupa, (2004) 7 SCC 638
really not of much significance. The effect of bail granted during trial
loses significance when on completion of trial, the accused persons
have been found guilty.

The principle3 is well settled that in considering the prayer for bail
during pendency of appeal in a case involving a serious offence like
murder punishable under Section 302 IPC, the court should consider
the relevant factors like the nature of the accusation made against the
accused, the manner in which the crime is alleged to have been
committed, the gravity of the offence, and the desirability of releasing
the accused on bail after they have been convicted for committing the
serious offence of murder.

It was stated by Supreme Court in one case held that an accused

who had misutilized the liberty that was granted to accused earlier by
committing another offence while on bail, was not entitled to the
privilege of being released on bail4. However, it was observed in
another case by Supreme Court that if other co-accused have been
granted bail then similar situated co-accused on the principle of parity
are also entitled for similar relief. Supreme Court has granted bail to
accused when substantial5 sentence has already been served by
accused. In some cases, Supreme Court has granted bail during the
pendency of criminal appeal to accused when there is no chance of
hearing6 to take place in near further and substantial sentence has
been served by accused.

Though no absolute and unconditional rule about when bail should be

granted by the Court and when it should not. It all depends on the
facts and circumstances of each case and it cannot be said there is

3Vijay Kumar v. Narendra, (2002) 9 SCC 364

4Ramesh Kumar Singh v. Jhabbar Singh, (2003) 10 SCC 195
5Fazal v. State of U.P., (2012) 5 SCC 752
6Salim Javed v. State of Rajasthan, (2006) 9 SCC 602
any absolute rule that because a long period of imprisonment has
expired bail must necessarily be granted.