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Shivani Jain

Shivani Jain | Updated: Jun 08, 2020 | Category: Criminal Law

Suspension of Sentence by the Trial Court

In India, there are several constitutional as well as statutory provisions that remit, commute, or suspend sentences, given to a convict. Under the Constitution of India, 1950, article 161 and article 72 authorize the Governor as well as the President to suspend, grant pardon, commute, or remit the sentence. Meanwhile, in the Code of Criminal Procedure, 1973, there is a whole chapter dedicated to the commutation, remission, and suspension of sentence. In this article, we will be specifically dealing with the Suspension of sentence by the Trial Court.

Meaning of Suspension

The term suspension means to either withdraw or take the sentence for a time-being. It is an act of keeping the sentence in suspension by the court. It is done to allow the accused to file an appeal in the appellate court. However, if the court thinks so, it can also order re-arrest of the offender and direct him to undergo the remaining sentence without giving any reason. The same is reiterated in the 41st Law Commission Report, Page 281 Para 29.1; and also, in the cases, such as ‘Ashok Kumar v. Union of India, AIR 1991 SC 1792’, ‘State of Punjab v. Joginder Singh, AIR 1990 SC 1396’.

Further, section 389(1) and (2) of the Code of Criminal Procedure, 1973, deals with a condition, where an accused person can get a Bail from the appellate court after filing the criminal appeal. In contrast, section 389(3) deals with a condition where the trial court itself can grant bail to the accused permitting him to file an appeal. However, we are concerned with the authority of the trial court to suspend the sentence, so, section 389 (3) will be taken into account.

Applicability of Section 389(1) of CrPC

According to section 389(1), the appellate court can use its power to release on bail, on if the following conditions are met:

  1. The person requesting for bail is an accused person;
  2. His appeal against the conviction is pending.

However, before granting such bail, the appellate court is required to record its reasons in writing. The appellate court may also order that the execution of the said sentence or order be suspended. Moreover, if a person is in confinement, the appellate court can also pass an order to release such a person on ‘bail’ or on ‘his own bond’.

Applicability of Section 389(3) of CrPC

The following listed are the points that deal with the applicability of section 389(3):

  1. The Court shall be the convicting Court;  
  2. The accused ought to be convicted by the respective Court;  
  3. The accused shall be sentenced to imprisonment for a period not more than three years;
  4. The accused must express his intention to file an appeal before the appellate Court; 
  5. On the date of judgment, the accused shall be on bail;
  6. The right to appeal must be granted. The same was reiterated by the Hon’ble Supreme Court in the case, Mayuram Subramanian Srinivasan v. C.B.I, (2006) 5 SCC 752’.

Power of Trial Court as per Section 389(3) of CrPC

The powers granted to the trial court by way of section 389(3) are listed below:

  1. The Trial Court has the power to grant bail to the accused.
  2. The Trial Court has the power to reject the bail if in case there are some ‘special reasons. 
  3. The Trial Court has the power to release such accused for a period that will allow him with sufficient time to file an appeal in the appellate court.

After that, it is provided that, the sentence of imprisonment will be considered suspended till the time accused is on bail. So, it shall be pertinent to take into consideration that the trial court is first required to decide whether it should grant bail or not. Secondly, whether there are any special reasons for refusing the bail. If in the case, the respective Court does not find any ‘special reason’ for rejecting the bail, the accused has to mandatorily be released on bail for allowing him to file an appeal to the appellate Court.

Features of Section 389(3) of CrPC

The following are the features of section 389(3) of the Code of Criminal Procedure, 1973:

  1. The accused will not be released on bail ‘as of right’ directly. However, he needs to convince the court that he is ‘eligible’ to be released on bail.
  2. If the respective trial Court is convinced that there are some ‘special reasons’ for not granting bail to the accused, then the said Trial Court can very well do.
  3. The only motive of this subsection is to allow the accused to file an appeal to the Appellate Court.
  4. No maximum period is specified for granting bail to the accused.
  5. According to this subsection, suspension of sentence is ‘deemed’ suspension.
  6. Suspension of sentence is a by-product of the convict being released on bail.
  7. The trial Court has no authority to firstly, order suspension of sentence and then release the accused on bail.

Difference in the Operation of section 389(1) and 389(3) of CrPC

Section 389(1) of CrPC Section 389(3) of CrPC
Subsection (1) comes into the role when an appeal is pending. Subsection (3) comes into the role when the accused expresses his desire to file an appeal.
Sub­section (1) firstly, deals with the ‘suspension,’ and then talks about the ‘release on bail’ or ‘own bond.’ Subsection (3) firstly, deals with the ‘release   on   bail,’ and then ‘suspension.’ Lastly, it deals with the ‘automatic’ effect.
Subsection (1) does not specify that the accused should be on bail. Subsection (3) can be used only if, on the date of judgment, the said accused is on bail.
Subsection (1) provides an option to release the accused either on ‘bail’ or ‘own bond.’ Trial Court by way of Subsection (3) does not have the power to release the accused on ‘own bond.’ However, the trial Court can release an accused on his own bond, if in case the accused is poor, etc.
In nutshell, by way of subsection (1), suspension acts as cause and bail as its effect. In the case of, subsection (3), bail acts as cause and suspension as its effect.


The concept of suspension of sentence can either be conditional or unconditional. An unconditional suspension of sentence simply means a sentence is suspended with no prior stipulations attached. However, in the case of the conditional suspension of sentence, the judge can refrain from executing a punishment for the period the accused satisfies the stipulation of the suspension. Further, if an accused infringes the terms and conditions of the suspension, the judge can then execute the sentence passed primarily given to him.

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Shivani Jain

Shivani Jain

Shivani has completed her B com LLB (Hons) and has the experience of writing various research papers during her college time. Earlier she was working as an Associate in a Delhi based Law Firm, but her interest in writing made her pursue Legal Content Writing as a career. Her core area of interest is in writing about various legal enactments, tax and finance.

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