Hari Sarup, J.
1. Appellants Bhola and Ram Singh have been convicted under Section 396, I.P.C. and sentenced to undergo imprisonment for life. Bhola has further been convicted under Section 412, J.P.C. and sentenced to ten years' rigorous imprisonment. They have applied for bail pending appeal.
2. Bail or jail? That's the question. The argument is that till the appeal is finally decided by this court, the appellant be presumed to be innocent. Every citizen is presumed to be law-abiding and innocent. But when the court speaks of presumption of innocence of the accused, it only means to stress that the burden of proving guilt lies entirely on the prosecution and that strict proof must be given for holding that the accused is guilty. This is based on the principle that every citizen is entitled to live in liberty till he commits an offence; and nobody, including the State, should take away his liberty without establishing before a court of law that he had committed the offence and thus rendered himself disqualified for enjoying the liberties of a free citizen.
3. But the presumption comes under cloud as soon as accusation is made and incriminating material comes before the investigating officer. It is only because of this cloud that the law permits the arrest and consequential curtailment of personal liberty of the accused even before the guilt is established in a court of law. The cloud deepens and the matter oversteps the zone of presumption and enters the realm of evidence when the case goes to court and evidence stasts. It then becomes a matter of evidence and is to be controlled by the rules contained in the Evidence Act. The lis has to be decided on the basis of evidence that might come in the case. The cloud gets removed and dispelled, when the court records a verdict of acquittal. The presumption of innocence, on the other hand, comes under an eclipse when the trial court on the basis of evidence, comes to the conclusion that the accused had committed the offence and convicts him. The strength of the presumption of innocence of an accused goes on decreasing with the development of the case from the stage of accusation to the stage of conviction by the trial court This variance has a relevance on the exercise of a court's discretion in granting bail to an accused in appeal.
4. The power to suspend the execution of sentence and grant bail during appeal is given in Section 426, Cr.P.C. (which corresponds to Section 389 of the Code of Criminal Procedure, 1973), It provides:
(1) Pending any appeal by a convicted person, the Appellate Court may. for reasons to be recorded 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.
From the provisions of Section 426, it is evident that the pendency of the appeal by itself is not a ground for suspending the sentence. There has to be something beyond the mere pendency of the appeal to justify the suspension of the sentence. Section 426 makes it imperative that before the appellant is directed to be set at liberty reasons be recorded in writing for suspension of sentence. The reasons for suspending the sentence and granting bail, after the conviction has been recorded by a court, have to be objective reasons which should normally emanate from the material on record.
5. The appellant in order to get bail has to make out a case for the exercise of the appellate court's discretion by showing that reasons exist for the suspension of the sentence. After the court is satisfied that such reasons exist, it would proceed to consider the question of granting bail to the appellant. Although practically the decision about suspension of sentence and granting bail will be simultaneous, it would involve two separate mental processes, one following the other. Each one has to be based on objective reasons.
6. Normally the grounds for suspending the execution of a sentence pending appeal should be the same on which ultimately the sentences are set aside in appeal, i.e. the merits of the case. The most relevant factor, therefore, for the exercise of power of suspending the sentence is the degree of probability the appeal stands of being finally allowed. Of course, the entire matter cannot be considered at the stage of bail and the degree of probability has to be determined on the basis of a prima facie satisfaction. Other factors relevant for the enquiry will include such ancillary matters as; the nature and gravity of the offence, and the age and health of the accused.
7. The remaining of the accused on bail or in jail during trial in the court below cannot, of course, be a relevant reason for suspending or not the execution of the sentence, because this circumstance has no nexus with the execution or suspension of sentence and, after conviction has been recorded, this circumstance stands neutralised. After conviction the man in jail and the man on bail stand on the same footing. If both are equally guilty there will be no justification for suspending the execution of the sentence awarded to a person who was on bail, and permitting it to be executed against a person who had remained in jail. If the chances of the appeal being allowed of the appellant in jail are greater than those of the appellant on bail, it would be wrong to suspend the sentence against the one who has remaiaed free and not to suspend it against him who has already remained in jail. For purposes of suspension of the sentence the classification of the appellants on the basis of their being on bail and in jail would be unreasonable.
8. Similarly the period or extent of the sentence or the quantum of punishment cannot be a relevant reason for its own suspension. It would be a relevant factor only if the sentence can, prima facie, be shown to be illegal, improper or excessive, and not otherwise.
9. The principle of 'irreparable injury' on which the execution of civil decrees is suspended pending appeal, can also not be made applicable to substantive sentences of imprisonment, as in such cases the injury will always be irreparable. The best and probably the only guide, therefore, for suspension of sentences in a criminal appeal is the probability of the appeal being allowed. If the nature and gravity of the offence is such in which bail is easily granted before conviction, a lower degree of probability may be enough to suspend the execution of the sentence, and in other cases a high degree of probability might be required for directing the suspension of the sentence pending appeal.
10. Various factors that are normally taken into consideration for grant-ins or refusing bail, include such factors as; the chances of accusation being proved or not proved: the nature and gravity of the offence; the repeatability of the crime; the antecedents, age, health and occupation of the accused; the chances of the accused jumping or abusing the bail; the possibility or probability of the evidence being tampered with and the likely impact of bail on the security of the people and the interest of the state. Speaking about the principles on which bail may be granted in non-bailable offences, the Supreme Court observed in the case of the State v. Jagjit Singh : 3SCR622 .
It (High Court) should then have-taken into account the various considerations, such as, nature and seriousness of the offence, the character of the evidence circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interest of the public or the State, and similar other considerations which arise when a Court is asked for bail in a non-bailable offence....
The only reason which the High Court gave for granting bail in this case were that the other two persons had been granted bail, that there was no likelihood of the respondent absconding, he being well-connected and that trial was likely to take considerable time. These are however not (the) only considerations which should have weighed with the High Court....
11. The question of grant of bail came up before the Court of Criminal Appeal in Great Britain in 'Michael Patrick Philips', (1947) 32 Cr AR 47. It was a case of felony and the Court observed as follows:
The Court feels very strongly that the applicant ought not to have been released on bail. In case of felony, bail is discretionary, and the matters which ought to be taken into consideration include the nature of the accusation, the nature of the evidence in support of the accusation and the severity of the punishment which conviction will entail. Some crimes are not at all likely to be repeated pending trial and in those cases there may be no objection to bail; but some are, and house-breaking particularly is a crime which will very probably be repeated if a prisoner is released on bail ... It is an offence which can be committed with a considerable measure of safety to person committing it.
12. The offence with which the accused were charged in the present case is one which is likely to be repeated against the people in general. Dacoity brings economic gain to the actor and is, or is likely to be, carried on as an occupation to earn a living and accumulate wealth. It is not an offence which comes to an end on being committed once. It would not for these reasons be appropriate unless exonerating circumstances exist, to grant bail in cases of dacoity. Bail in such a case can, therefore, be granted only if a good prima facie case on merits is made out.
13. Applying the tests mentioned above, I have come to the conclusion that grounds do not exist in the present case which may justify the suspension of the sentence awarded to the appellants or their release on bail.
14. The prayer for bail is accordingly rejected.