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The Supreme Court on Tuesday said that an appellate court in order to suspend sentence, cannot pick loopholes and lacunas in prosecution case, but has to merely ascertain if the convict has fair chances of acquittal, in order to release him on bail.

Referring to Section 389 of the CrPC, the top court said it is evident that save and except the matter falling under the category of sub-section 3, neither any specific principle of law is laid down nor any criteria has been fixed for consideration of the prayer of the convict.

"There happens to be a fine distinction between the prayer for bail at the pre-conviction as well as the post-conviction stage, viz Sections 437, 438, 439 and 389(1) of the Criminal Procedure Code," a bench of Justices M R Shah and J B Pardiwala said.

The top court pointed out the principle underlying the theory of criminal jurisprudence in our country is that an accused is presumed to be innocent till he is held guilty by a court of the competent jurisdiction. 

"Once the accused is held guilty, the presumption of innocence gets erased. In the same manner, if the accused is acquitted, then the presumption of innocence gets further fortified," it said.

Citing a number of previous judgement, the bench said if ultimately the convict appears to be entitled to have an acquittal, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision and disposal. 

"However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable," the bench said. 

"The Appellate Court should not reappreciate the evidence at the stage of Section 389 of the CrPC and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach," it added.

The court set aside the Patna High Court's judgement which suspended life term sentence of Jai Shankar Chaudhary, Abhay Kumar and Ram Babu and granted them bail on their appeal against the Trial Court's judgement of conviction for murdering Manish Kumar on August 14, 2018 within a few days of his election of the deceased as a Block Pramukh.

"In the case on hand, what the High Court has done is something impermissible. High Court has gone into the issues like political rivalry, delay in lodging the FIR, some over-writings in the First Information Report etc. All these aspects, will have to be looked into at the time of the final hearing of the appeals filed by the convicts," the bench said. 

After doing "cursory scanning" of the evidence on record, the bench said we are unable to agree with the contentions the convicts that, either there is absolutely no case against the convicts or that the evidence against them is so weak and feeble in nature, that, ultimately in all probabilities the proceedings would terminate in their favour.

The court did not agree to the contention that it would be meaningless, improper and unjust to keep the convicts behind the bars for a pretty long time till they are found not to be guilty of the charges.

"We are convinced that the High Court committed a serious error in suspending the substantive order of sentence of the convicts and their release on bail pending the final disposal of their criminal appeals," the bench said.

The court also took on record failure of the state government to challenge the order.

"It was expected of the State as the prosecuting agency to challenge the order passed by the High Court, but for some reason or the other, the State thought fit not to do anything further. Ultimately, it is the original first informant (brother of the deceased), Omprakash Sahni who had to come before this court," the bench said. 

Case Title: Omprakash Sahni Vs. Jaishankar Chaudhary & Ors