Suspension of sentence pending the appeal; release of appellant onbail
Section 389 of the Code of Criminal Procedure, 1973 deals with suspension of sentence pending the appeal; release of appellant onbail. Suspension of sentence pending the appeal; The Act came into force on 01 Apr 1974. Repealed by section 531 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023) with effect from 1 July 2024, but conduct before that date is still charged, tried and appealed under it.
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.
(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,-
(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail,
order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1) ; 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 for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so
sentenced.
Section 389, The Code of Criminal Procedure, 1973 (Act 2 of 1974).
Now in the Bharatiya Nagarik Suraksha Sanhita
BNSS 430 Suspension of sentence pending appeal; release of appellant on bail Text carried over almost unchanged 87%
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
Referred to by 1
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Preet Pal Singh v. State of Uttar Pradesh
Court's Decision & Legal Precedent
Judgement of Main Case order-5.pdf 2020-08-14 (not same-date order-4 ROP). Arun Mishra/Indira Banerjee, Crl A 520/2020. Post-conviction suspension of sentence under CrPC 389 is not the same as pre-trial bail: after a finding of guilt there is no presumption of innocence, and in a serious offence (here 304B) the appellate court must record reasons and look at the prima facie merits. High Court bail of a life-sentence convict set aside. Map CrPC 389 and successor BNSS 430.
On this section: Post-conviction suspension of sentence under s.389 is not pre-trial bail; after a finding of guilt the court must record reasons and look at the merits.
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Satender Kumar Antil vs Central Bureau of Investigation
Court's Decision & Legal Precedent
Bail is the rule and jail is the exception in criminal procedure. The presumption of innocence, being a facet of Article 21 of the Constitution, places the burden on the prosecution to prove guilt. Courts must exercise their discretion in granting or refusing bail judiciously, considering all relevant factors including the nature and gravity of the offence, the severity of punishment, the conduct of the accused during investigation, the delay in trial, and the likelihood of the accused absconding. Investigating agencies must comply with Section 41 and 41A of the CrPC by recording reasons for arrest and for not arresting. Non-compliance with these provisions entitles the accused to bail. Courts must act as guardians of liberty and ensure that personal liberty is protected in accordance with the procedure established by law.
On this section: Suspension of sentence pending appeal; release of appellant on bail
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Shyam Narain Pandey vs State of U. P
Court's Decision & Legal Precedent
When an appellate court is inclined to release on bail a convicted person sentenced to death, life imprisonment, or imprisonment for ten years or more, it is mandatory for the appellate court to first give an opportunity to the Public Prosecutor to file written objections against such release. Service of appeal and bail application papers does not satisfy this requirement. The appellate court must affirmatively grant a specific opportunity for written show cause, wait for the Public Prosecutor's written response (if any), and then proceed to consider the bail application. The procedure is mandatory, not discretionary, and non-compliance renders the bail order procedurally defective and liable to be set aside.
On this section: Core provision for post-conviction bail and suspension of sentence; the proviso requires mandatory written show cause opportunity to Public Prosecutor for serious offences
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Somesh Chaurasia vs State of M. P
Court's Decision & Legal Precedent
When a person convicted of a serious offence under Section 302 IPC and released on bail during suspension of sentence is subsequently implicated in another serious offence (particularly murder) committed during the period of bail, the bail must be cancelled as the accused has misused the liberty granted to him. The High Court must apply stringent legal principles governing post-conviction bail and cannot dispose of bail cancellation applications by merely directing further investigation without considering the gravity of allegations, criminal antecedents, and material facts indicating abuse of process. The cancellation of bail is warranted when there is evidence of misuse of liberty by engaging in similar criminal activity, and the court must ensure that the rule of law is preserved and that no person, regardless of political connections, is shielded from the administration of criminal justice.
On this section: Suspension of sentence pending appeal and release on bail - the Court analyzed the procedure and conditions for granting and cancelling bail post-conviction, emphasizing that the second proviso allows cancellation when the accused misuses liberty
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The State of Punjab vs Rakesh Kumar
Court's Decision & Legal Precedent
The Narcotic Drugs and Psychotropic Substances Act applies to all forms of narcotic drugs and psychotropic substances, including manufactured preparations such as tablets, syrups, and vials containing narcotic substances. Possession of such manufactured drugs in bulk quantities without valid authorization constitutes a violation of Section 8 of the NDPS Act. The NDPS Act operates as a special law in addition to the Drugs and Cosmetics Act and is not barred by it. The distinction between manufactured and non-manufactured drugs does not determine whether the NDPS Act applies; rather, the applicability depends on whether the substance contains narcotic drugs or psychotropic substances and whether possession is authorized for medical or scientific purposes in accordance with the Act, rules, and authorized licenses.
On this section: Provides for suspension of sentence pending appeal. The High Court used this provision to suspend the sentences of the accused, which the Supreme Court found to be erroneously applied.
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Dadu @ Tulsidas vs State of Maharashtra
Court's Decision & Legal Precedent
Section 32A of the Narcotic Drugs and Psychotropic Substances Act, 1985 is unconstitutional insofar as it takes away the power of the appellate court to suspend sentences awarded to convicts under the Act, because such complete prohibition renders the substantive right of appeal illusory and violates Article 21 of the Constitution. However, Section 32A remains valid insofar as it restricts the Executive's power to suspend, remit or commute sentences under Sections 432 and 433 of the Code of Criminal Procedure, as this restriction is for a reasonable purpose of combating drug trafficking and does not violate Article 14 of the Constitution. A sentence awarded under the Act can be suspended by the appellate court only and strictly subject to the conditions spelt out in Section 37 of the Act, which requires reasonable grounds for believing that the accused is not guilty of the offence and is not likely to commit any offence while on bail.
On this section: Empowers appellate courts to suspend sentences pending appeal and release appellants on bail. Section 32A was held to unconstitutionally take away this power for NDPS offences.
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Maktool Singh vs State of Punjab
Court's Decision & Legal Precedent
Section 32A of the Narcotic Drugs and Psychotropic Substances Act, 1985, which prohibits suspension, remission or commutation of sentences under the Act (except Section 27), has an overriding effect and applies to all courts, including the High Court, and therefore the High Court cannot suspend sentences passed on persons convicted of NDPS offences (except Section 27) at any stage, including during the pendency of appeal. The non obstante clause in Section 32A makes it clear that this prohibition operates despite any provision in the Criminal Procedure Code or any other law. Section 36B of the NDPS Act, which preserves High Court powers under Chapter XXIX of the CrPC, is subject to the phrase 'so far as may be applicable', which limits the applicability of CrPC provisions to the extent they are not interdicted by Section 32A.
On this section: The Court held that Section 389, which confers power to suspend sentences pending appeal, cannot be exercised by courts in NDPS cases (except Section 27) because Section 32A of the NDPS Act overrides this provision through its non obstante clause.
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Md. Jeharul Ali vs The State of Assam
Court's Decision & Legal Precedent
An appellate court will not re-appreciate evidence to find minor lacunas for the purpose of granting bail under Section 389 CrPC unless the conviction is patently illegal or perverse.
On this section: Governs the suspension of execution of sentence pending appeal.
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Shrawan Kashinath Lilake vs The State of Maharashtra
Court's Decision & Legal Precedent
When the material on record prima facie does not establish that an accused was a member of a group acting with common intention to commit gang rape, and the evidence suggests the accused arrived at the crime scene after the initial assault, the conviction under Section 376D IPC is questionable. In such circumstances, where the accused has already undergone prolonged incarceration, suspension of sentence pending appeal is justified under Section 389 CrPC, subject to stringent bail conditions to protect the victim and ensure the accused's appearance.
On this section: Suspension of sentence pending appeal - the court exercised its discretion under this section to suspend the substantive sentence imposed by the trial court pending disposal of the criminal appeal.
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O S Narayanasamy vs R Arumugam
Court's Decision & Legal Precedent
The Appellate Court, while exercising power under Section 389 CrPC in an NI Act appeal, may adjust the quantum of interim deposit under Section 148 NI Act if compelling personal hardships such as severe medical illness are sufficiently proved.
On this section: Provision used to seek suspension of the execution of a sentence during the pendency of an appeal.
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Malkhan Singh vs State Of M.P.
Court's Decision & Legal Precedent
Conviction based on circumstantial evidence is valid and can sustain a murder conviction under Section 302 IPC when: (1) the chain of circumstances is complete and leaves no reasonable doubt; (2) eye-witnesses, even if close relatives of the deceased, are credible if they have no previous animosity and their testimony is consistent with other evidence; (3) delay in recording witness statements under Section 161 CrPC does not automatically render the prosecution case suspect if the delay is explained and the explanation is plausible and acceptable; (4) motive is established through credible witness testimony; (5) the nature and extent of injuries corroborate the ocular evidence; (6) weapons and blood-stained clothes recovered from the accused corroborate the prosecution case; and (7) in the absence of any extenuating circumstances prescribed by the five exceptions to Section 300 IPC, the intention and knowledge to commit murder is proved beyond reasonable doubt.
On this section: Suspension of sentence; multiple hearings were listed for suspension of sentence applications, though the final judgment did not grant suspension.
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O. Samarjit Singh @ Naresh @ Kadeng vs The National Investigation Agency
Court's Decision & Legal Precedent
When a convict in a terrorism-related case has undergone substantial detention (more than 70% of the maximum sentence) and the appellate process is likely to be prolonged with no immediate prospect of final hearing, bail pending disposal of appeal may be granted, provided stringent conditions are imposed to ensure compliance and prevent flight or further criminal activity.
On this section: Provides the legal framework for suspension of sentence and grant of bail pending disposal of criminal appeal
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Coffee Dynamics Pvt. Ltd. - through Its Director Rahul Anil Leekha vs Government of Gujarat
Court's Decision & Legal Precedent
The statutory requirement of depositing a minimum of 20% of the fine or compensation under Section 148 of the N.I. Act is not absolute; appellate courts have the discretion to reduce or exempt the deposit amount under exceptional circumstances of financial hardship by recording specific reasons.
On this section: Applied to suspend the execution of the sentence and payment of compensation pending the final determination of the appeal.
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Subramani vs State Rep.by
Court's Decision & Legal Precedent
In cases involving conviction for serious offences like murder under Section 302 IPC, suspension of sentence pending appeal is not granted as a matter of course. The appellate court must consider the nature of the accusation, the manner in which the crime was committed, the gravity of the offence, and the desirability of releasing the accused on bail after conviction for such serious offence. The normal practice is not to suspend the sentence, and suspension is granted only in exceptional cases. Where circumstantial and electronic evidence, including forensic evidence of bloodstains on weapons and clothing, establishes the guilt of the accused despite hostile witnesses, and the crime involves a brutal murder in broad daylight, the case does not fall within exceptional circumstances warranting suspension of sentence.
On this section: Power To Suspend Sentence Pending Appeal - Basis for filing these miscellaneous petitions seeking suspension of sentence
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Sri Adnan Turabi vs Sri Vijay Nair
Court's Decision & Legal Precedent
In criminal appellate proceedings, procedural defaults in taking steps should not permanently bar a hearing on merits if the appellant shows a willingness to proceed and has complied with interim conditions like fine deposits.
On this section: Relating to suspension of sentence pending appeal.
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… State of Jharkhand[1]( page-3-0) . He pointed out the interpretation put by this Court to Section 357 of the Code of Criminal Procedure, 1973 (for short, 'the CrPC'). He relied upon what is held in paragraph 36 of the said decision. He urged that there is a power to suspend the fine conferred by Section 389 of the CrPC with or without condition. He submitted that the impugned order does not record that the order of fine has been suspended. He, therefore, submitted that the impugned order would not help the respondent to avoid enforcement of the sentence in default of payment of the fine. He submitted that, in any case, …
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… In fact, a Constitution Bench of this Court held in B.R. Kapur vs. State of Tamil Nadu[8]( page-27-0) that an order of the appellate/revisional Court suspending the sentence of imprisonment has to be read in the context of Section 389 of the Code of Criminal Procedure and that under the said provision, what is suspended is only the execution of the sentence and not the sentence itself. The Constitution Bench made it clear that the suspension of the execution of the sentence would not alter or affect the conviction and that therefore such a person …
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… Sudesh Joshi, Advocate with Mr. Saurav Singh, Advocate for the Petitioner. Mr. Thinlay Dorjee Bhutia, Public Prosecutor for the State-Respondent. ORDER Meenakshi Madan Rai, J. Heard on I.A. No.01 of 2024 which is an application 1 under Section 389(1) of the Code of Criminal Procedure, 1973 (hereinafter, "Cr.P.C."), filed by the Petitioner/Appellant/Convict seeking suspension of the sentence imposed on him by the Learned Trial Court and his enlargement on Bail. The Prosecution has filed its response to the Bail application. Learned Counsel for the …
Questions about Section 389
What have the courts held on Section 389 of the Code of Criminal Procedure?
Preet Pal Singh v. State of Uttar Pradesh (14 Aug 2020) is the leading judgment on this section among those set out below: Post-conviction suspension of sentence under s.389 is not pre-trial bail; after a finding of guilt the court must record reasons and look at the merits. Another 14 judgments on this section are set out below, 7 of them from the Supreme Court. They run from 2000 to 2024.
How do I find court cases under Section 389 of the Code of Criminal Procedure?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: CRPC 389, section 389 CRPC, section 389 of the Code of Criminal Procedure. People searching for it also type crpc 389 in bnss and crpc 389 (3). Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 15 reported judgments on this section are set out on this page, beginning with Preet Pal Singh v. State of Uttar Pradesh (14 Aug 2020).
What should I read with Section 389 of the Code of Criminal Procedure, and has it changed?
1 other provision in this corpus refers back to it. For anything done on or after 1 July 2024 the provision to read is BNSS 430 (Suspension of sentence pending appeal; release of appellant on bail), which replaced it; conduct before that date is still charged, tried and appealed under this section.
When did Section 389 of the Code of Criminal Procedure come into force?
Section 389 of the Code of Criminal Procedure, cited as CRPC 389, came into force on 01 Apr 1974, having been enacted on 25 Jan 1974. It is no longer in force.
Other sections of this Act
- 320. Compounding of offences1554 words
- 167. Procedure when investigation cannot be completed in twenty four hours1005 words
- 220. Trial for more than one offence962 words
- 360. Order to release on probation of good conduct or after admonition804 words
- 2. Definitions799 words
- 198. Prosecution for offences against marriage774 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Recovered from the consolidated text published by India Code (item 330a1099-77ad-4a2e-b22a-769b33398f9e). This page is not a substitute for legal advice.