The Karnataka High Court recently refused to release Jayalalithaa on bail after her conviction under the provisions of the Prevention of Corruption Act, 1988. Sentenced to imprisonment for four years and a fine of Rs. 100 crores, Jayalalithaa was immediately disqualified from the membership of the Tamil Nadu legislature and had to step down as Chief Minister of the state. With the Supreme Court set to hear her plea any day now, let us briefly examine appellate court’s powers of ordering that a sentence or a conviction be suspended pending appeal.
Power to suspend a sentence versus power to suspend the conviction
Pending the disposal of an appeal or a revision, appellate and revisional courts have powers to (i) suspend the execution of a sentence and release the appellant on bail or (ii) suspend the conviction itself and release the appellant on bail. In the case of appellate courts, these powers reside in Section 389(1) of the Code of Criminal Procedure, 1973 (“CrPC”). The important distinction between these powers is that a suspension of the execution the sentence pending an appeal does not erase the conviction or suspend any disqualification that arose from the conviction. A suspension of the conviction on the other hand, has the legal effect of staying any disqualifications under any law because of the conviction. For example, a person is disqualified from being a member of Parliament or the Legislative Assembly or Legislative Council of a state under Section 8(3) of the Representation of People Act, 1951 if he or she has been convicted and sentenced for any offence for not less than two years. If an appellate court has stayed the conviction under Section 389(1), it has the effect of staying such a disqualification. Not so, if the order merely suspends the execution of the sentence.
Power to suspend conviction – exercise with caution
The Supreme Court has held that the power to suspend the conviction must be exercised only in exceptional cases where a failure to stay the conviction would lead to injustice and irreversible consequences. In Navjot Singh Sidhu v. State of Punjab, the Court held that the person seeking a stay of the conviction should specifically draw the attention of the appellate court to the consequences that may arise if the conviction is not stayed. A person convicted cannot obtain an order of stay of conviction without that. In State of Tamil Nadu v. A. Jaganathan and in K.C. Sareen, the Court has even held that a conviction on a corruption charge against a public servant should not be suspended even if the sentence of imprisonment is suspended.
Time taken to hear an appeal – a factor when considering suspension of sentence
In either case, the appellate court has to record reasons in writing. The Supreme Court has noted some of the factors that can be taken into account while dealing with suspension of sentence. In Angana and Another v. State of Rajasthan, for example, Court held that the fact that the appellant did not misuse bail during trial could be considered. The time that it would take to hear and adjudicate an appeal is another factor. In fact, in K.C. Sareen v. C.B.I, Chandigarh, the Court held that when a court admits an appeal, it should normally suspend the sentence of imprisonment until the disposal of the appeal, because unless an appeal is heard soon after it is filed, a refusal to do so would render the very appeal otiose. The fact that a person has already undergone a substantial portion of the sentence awarded, either under trial or as a convict must also weigh in favour of the appellant.
It remains to be seen whether the Supreme Court will release Jayalalitha on bail after suspension of sentence or is impressed enough to order suspension of her conviction as well.
(Jiten Mehra is an advocate practising in Delhi.)