1 Lekh Raj and another vs. State H.P. Cr.Appeal No. 57 of 2025 Reserved No. 11.08.2025 19.08.2025 Present: Mr. N.S.Chandel, Senior Advocate with Mr. Siddharth, Advocate, for the appellants. Mr. LokinderKutlehria, Additional Advocate General, for the respondent/State. Cr.M.P 2624 of 2025 The applicants have filed the present application for suspension of sentence imposed on them by the learned Sessions Judge-cum-Principal Judge, Family Court, Kangra at Dharamshala, District Kangra, H.P. It has been asserted that the applicants were convicted and sentenced in the following manner:- Sections Sentence awarded Fine imposed Sentence in default of payment of fine amount. 304(II) read with Section 149 of IPC Simple imprisonment for seven years ₹40,000/- each two months simple imprisonment 452 read with Section 149 of IPC Simple imprisonment for five years ₹5,000/- each Two months simple imprisonment 323 read with Section 149 of Simple imprisonment for one year - - 2 IPC 325 read with Section 149 of IPC Simple imprisonment for three years ₹5,000/- each Two months simple imprisonment 2. It has been asserted that both the applicants have spent 39 months in custody during the trial. They are entitled to the benefit provided under Section 479 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The appeal is a continuation of the trial. The applicants are first-time offenders and are entitled to be released after completing one-third of the maximum period of punishment. Hence, the application. 3. The application is opposed by filing a reply asserting that the applicants are involved in the commission of a serious/grave offence. There is no infirmity in the findings recorded by the learned Trial Court. The violations committed by them are grave, which adversely affect the society. The prosecution has proved its case beyond a reasonable doubt. It was admitted that the applicants remained in custody during the trial. It was asserted that the benefit of Section 479 of BNSS is not available after conviction. Therefore, it was prayed that the application be 3 dismissed. 4. I have heard Mr. N.S.Chandel, learned Senior Advocate, assisted by Mr. Sidharth, learned counsel for the applicants/appellants and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State. 5. Mr. N.S.Chandel, learned Senior Counsel for the applicants, submitted that the applicants have undergone more than 1/3rd of the maximum sentence, which can be imposed for the commission of the offence proved against them before the learned Trial Court. The appeal is a continuation of the trial, and the applicants are entitled to be released on bail. Hence, he prayed that the present application be allowed and the sentence imposed by the learned Trial Court be suspended. 6. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the applicants had earlier filed an application seeking their release, which was dismissed by this Court. The applicants have failed to make out any fair chance of their acquittal, and the sentence imposed upon them cannot be suspended. Hence, he prayed that the present application be dismissed. 4 7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 8. Section 430 of BNSS reads as under:- “430. Suspension of sentence pending appe al; 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 or bail bond: Provided that the Appellate Court shall, before releasingonhis own bond orbailbond a convicted person who is convictedofan offence punishable with death or imprisonment for life or imprisonment for a termofnot less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against suchrelease: Provided further that in cases where a convicted person is releasedonbail, it shall be open to the Public Prosecutor to file an application for the cancellation of the bail. (2) The power conferred by thissectiononan 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 5 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 ison 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.” 9. Section 479 of BNSS reads under:- “479.Maximum period for which an under- trial prisoner can be detained.—(1) Where a person has, during theperiodof investigation, inquiry or trial under this Sanhita of an offence under any law (not being an offence for which the punishment of death or life imprisonment has been specified as one of the punishments under that law) undergone detentionforaperiodextending up to one- half of themaximumperiodof imprisonment specifiedforthat offence under that law, he shall be released by the Court on bail: Provided that where such a person is a first- time offender (who has never been convicted of any offence in the past), he shallbereleased on bond by the Court, if he has undergone detentionfor a 6 periodextending up to one-third of themaximumperiodof imprisonment specified for such offence under that law: Provided further that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one- half of the said period or release him on bail bond instead of his bond: Provided also that no such person shall in any casebedetained during theperiodof investigation, inquiry or trialformore than themaximumperiodof imprisonment providedfor the said offence under that law. Explanation. —In computing the period of detention under thissectionforgranting bail, theperiodof detention passed due to delay in proceeding caused by the accused shallbeexcluded. (2) Notwithstanding anything in sub- section (1), and subject to the third proviso thereof, where an investigation, inquiry or trial in more than one offence or in multiple cases are pending against a person, he shall not be released on bail by the Court. (3) The Superintendent of jail, where the accused person isdetained, on completion of one-half or one-third of theperiodmentioned in sub-section(1), as the case maybe, shall forthwith make an application in writing to the Court to proceed under sub-section(1)for the release of such person on bail.” 10. Hon’ble Supreme Court held in Satender Kumar Antil v. CBI, (2022) 10 SCC 51: (2023) 1 SCC (Cri) 1: 2022 SCC OnLine SC 825 that the word ‘trial’ includes an appeal or 7 revision while considering the suspension of the sentence. It was observed at page 75: “Definition of trial 7. The word “trial” is not explained or defined under the Code. An extended meaning has to be given to this word for the purpose of enlargement on bail to include the stage of investigation and thereafter. Primary considerations would obviously be different between these two stages. In the former stage, an arrest followed by a police custody may be warranted for a thorough investigation, while in the latter, what matters substantially is the proceedings before the court in the form of a trial. If we keep the above distinction in mind, the consequence to be drawn is for a more favourable consideration towards enlargement when investigation is completed, of course, among other factors. 8. Similarly, an appeal or revision shall also be construed as a facet of trial when it comes to the consideration of bail on suspension of sentence.” 11. It was further held that the jurisdiction under Section 389 of Cr.P.C. is different from Sections 438 or 439 of the Code, the delay in taking up the main appeal would be a factor under Section 436A of Cr.P.C., but the Court will have to see other relevant factors, including the conviction rendered by the learned Trial Court. It was observed at page 113: “56. A suspension of sentence is an act of keeping the sentence in abeyance, pending the final adjudication. Though delay in taking up the main appeal would certainly be a factor, and the benefit available under Section 436-A would also be considered, the courts will have to see the relevant factors, including the conviction rendered by the trial court. When it is so 8 apparent that the appeals are not likely to be taken up and disposed of, then the delay would certainly be a factor in favour of the appellant. 57. Thus, we hold that the delay in taking up the main appeal or revision, coupled with the benefit conferred under Section 436-A of the Code, among other factors, ought to be considered for a favourable release on bail.” 12. The custody certificate of applicant Lekh Raj annexed to the reply shows he had undergone three (3) years ten (10) months and sixteen (16) days imprisonment, and the custody certificate of Anum Kumar @ Banti shows that he had undergone three (3) years ten (10) months and nineteen days days imprisonment on 09.07.2025. The applicants were found guilty of the commission offence punishable under Section 304(II) of the IPC by the learned Trial Court, which provides imprisonment of either description for a term which may extend to ten (10) years. 1/3rd of the sentence will be three years and four months. Therefore, the applicants have undergone more than 1/3rd of the maximum sentence prescribed by the legislature. 13. It was submitted that the earlier application seeking suspension of the sentence of the applicant was dismissed by this Court after holding that the applicant failed to show any fair chance of acquittal. This will not help the prosecution. The applicants have filed the present application because they have completed the custody period as provided 9 under Section 479 of BNSS, which has nothing to do with the merits of the case. Since the legislature has provided the valuable rights of bail to a person whose trial is not concluded before the completion of 1/3rd of the maximum sentence, and the trial includes the appeal, as held by the Hon’ble Supreme Court in Satender Kumar Antil (supra). Therefore, the applicants are entitled to be released on bail, even if there is no fair chance of acquittal, when their appeal is not likely to be heard soon. 14. Consequently, the present application is allowed and the substantive sentence of imprisonment awarded by the learned Trial Court is ordered to be suspended during the pendency of the appeal subject to their furnishing personal bonds in the sum of ₹50,000/-(Rupees Twenty Five Thousand) each with one surety each in the like amount to the satisfaction of learned Trial Court and to deposit of the fine amount, if not deposited earlier, with an undertaking to appear and serve sentence, in case of dismissal of the present appeal. 15. A copy of this order is sent to the learned Trial Court for information and necessary action. 16. Learned Trial Court is directed to transmit the bail bonds, so furnished by the applicants before it, for placing the same on record. 10 17 The application stands disposed of in the aforesaid terms. 18. The observations made hereinabove are regarding the disposal of the application and will have no bearing, whatsoever, on the case's merits. (Rakesh Kainthla) Judge 19th August 2025 (ravinder)