Purushothaman vs State Of Tamil Nadu

2023 INSC 970 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.3341 OF 2023 (Arising out of S.L.P.(Crl.) No. 8609 of 2023)

PURUSHOTHAMAN ... APPELLANT(S)

VS.

STATE OF TAMIL NADU ... RESPONDENT(S)

J U D G M E N T

Abhay S.Oka, J.

Leave granted.

2. Heard the learned counsel appearing for the

parties.

3. The appellant-accused was convicted by the Trial

Court for the offence punishable under Section 6 of the

Protection of Children from Sexual Offences Act, 2012

(for short 'POCSO Act'). The appeal against conviction

preferred by the appellant was admitted by the High Court

and by the order dated 12th January, 2018, the substantive

sentence of the appellant was suspended and he was Signature Not Verified Digitally signed by Anita Malhotra ordered to be enlarged on bail.

Date: 2023.11.02 18:09:34 IST Reason:

Criminal Appeal @ SLP(Crl.)No.8609/2023 Page 1 of 5

4. On 7th July, 2023, the said Criminal Appeal of the

year 2017 was called out before the learned Single Judge

of the High Court for hearing. The Advocate for the

appellant sought adjournment for four weeks. Only on the

ground that the appellant is enjoying the facility of

bail and that his advocate applied for adjournment, the

High Court proceeded to cancel the bail.

5. In a given case, if the advocate appearing for the

appellant-accused seeks adjournment on untenable and

unreasonable grounds, the Appellate Court is well within

its power to refuse the prayer for adjournment. In such

a case, one of the courses suggested by a decision of

this Court in the case of Bani Singh v. State of U.P.1 can

always be adopted by the High Court. The High Court has

a discretion to appoint an advocate to espouse the cause

of the appellant when the advocate appointed by the

appellant refuses to argue the appeal on unreasonable

grounds. Though the High Court has an option of

considering the merits of the appeal and deciding the

same on merits, the High Court could always adopt the

first course of appointing an advocate to espouse the

cause of the appellant.

1. (1996) 4 SCC 720

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6. Sub-section 1 of Section 389 of the Code of

Criminal Procedure, 1973 (for short "CrPC") reads thus:

"389. Suspension of sentence pending the appeal; release of appellant on bail - (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."

(underline supplied)

7. Under sub-section 1 of Section 389, while

suspending the sentence of the appellant-accused who is

in Jail, the Appellate Court has to enlarge the accused

on bail till the final disposal of the appeal. The

Criminal Appeal @ SLP(Crl.)No.8609/2023 Page 3 of 5 second proviso to sub-section 1 of Section 389 permits

the Public Prosecutor to file an application for

cancellation of the bail granted under sub-section 1.

The second proviso to sub-section 1 of Section 389 is on

par with sub-section 2 of Section 439 of CrPC.

Therefore, the Court can even Suo Motu issue a notice

calling upon the accused to show cause why the bail

should not be cancelled. Under no circumstances, the

bail granted to an accused under sub-section 1 of Section

389 can be cancelled without giving a reasonable

opportunity to the accused of being heard.

8. Unfortunately, the High Court, without even giving

an opportunity of being heard to the appellant-accused on

the issue of cancellation of bail, has straight away

proceeded to cancel the bail granted to him. Such

approach on the part of the High Court cannot be

countenanced especially when the High Court can always

deal with the situation when an adjournment is sought by

the advocate for the accused at the time of final hearing

of the appeal on unreasonable grounds. For the default

of the advocate appointed by the accused, the Appellate

Court cannot penalize the accused by proceeding to cancel

his bail only on the ground that his advocate has sought

adjournment and that also without giving an opportunity

Criminal Appeal @ SLP(Crl.)No.8609/2023 Page 4 of 5 of being heard to him on the issue of cancellation of

bail.

9. We have come across cases where an application for

suspension of sentence was rejected by the High Court

only on the ground that the advocate for the accused

declined to argue the appeal on merits. When only the

application for suspension of sentence is listed for

hearing, the advocate for the accused is not expected to

be ready to argue the appeal.

10. Accordingly, the impugned order is hereby quashed

and set aside and the earlier order dated 12th January,

2018 granting suspension of sentence and bail to the

appellant is restored.

11. We make it clear that if the appellant applies for

adjournment on any unreasonable or unwarranted ground, it

will be always open for the High Court to proceed with

the appeal by taking recourse to one of the options laid

down in the case of Bani Singh1.

12. The appeal is accordingly allowed.

..........................J. (ABHAY S.OKA)

..........................J. (PANKAJ MITHAL) NEW DELHI;

October 30, 2023.

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