The Supreme Court of India.
Credit: Reuters File Photo
New Delhi: The Supreme Court on Wednesday said the high court has to examine availability of prima facie palpable material on the record to indicate a fair chance of overturning the conviction, while hearing an application for suspension of sentence under Section 389 of the Criminal Procedure Code.
A bench of Justices B V Nagarathna and K V Vishwanathan also highlighted the distinction between setting aside the bail and cancellation of the bail.
"While cancellation of bail is due to some supervening circumstances like breach of bail condition, setting aside of the bail is concerned not with the breach of condition but with the justifiability and soundness of the order granting bail,'' the bench said.
In its judgment, the court allowed a plea by the father of a minor girl against the Rajasthan High Court's order that granted bail to a man and suspended his sentence of 20 years jail till disposal on his appeal in a case related to sexual assault of a 14-year-old girl under the POCSO Act.
The father pointed out the convict had undergone imprisonment for a period of one year and three months only but his sentence was suspended. Besides, the state government filed an affidavit stating the convict faced 11 cases, in which he was acquitted in five but six were still pending.
In its order, the high court had said that no sign of sexual assault was found by the medical expert on the body, no FSL as well as DNA report was available on record. It also said despite the availability of washrooms in the house, it is little difficult to digest that the girl will go out for toilet.
Since there is no prospect of being heard and disposal of this appeal in near future, the appellant has got strong grounds to assail the judgment of conviction and sentence. Thus, it is a fit case for suspending the sentences during pendency of the instant appeal, the HC said.
Setting aside the HC's order, the bench said, ''Independent of the FSL and DNA report and considering the nature of the case and the antecedents of respondent convict and after carefully examining the judgment of conviction, we feel that the High Court was not justified in suspending the sentence.''
The court held the high court has not adverted to any of the relevant factors for considering the case for suspension under Section 389 CrPC.
Directing the convict to surrender by August 30, 2025, the bench opined, the reasoning of the high court fell far short of the required parameters for enlargement of a convict, punished for heinous offence, on bail after suspending the sentence.
It held the high court's finding that no sexual assault was found, without considering the overall nature of the evidence of the case, was "completely untenable".
The court pointed out, according to the evidence of the prosecutrix, respondent convict, at gunpoint, closed her mouth and forcibly took her to the house of Amro and committed rape on her.
"All that the medical evidence said was that no conclusive opinion about the crime could be given since FSL Report was awaited. That does not mean that the ocular evidence could be ignored," the bench said.
The court also pointed out the trial court has also found that the non-availability of the DNA Report did not adversely affect the case of the prosecution.
"The reasoning that despite the availability of washrooms in the house it was difficult to believe that the prosecutrix could go out for the toilet, is conjectural in nature,'' the bench said.