Section 389 CrPC vs Section 430 BNSS — Suspension of Sentence Pending Appeal

In India, Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 389 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. An appellate court may still suspend a sentence and release the appellant pending appeal; apart from a heading and punctuation edit, the changes are to the words describing release — "own bond or bail bond".

At a glance

Suspension of sentence is a procedural power, so no punishment or First Schedule classification applies.

What changed

• Minor edit — heading: "Suspension of sentence pending the appeal" becomes "Suspension of sentence pending appeal".
• Minor edit — Section 430(1): release "on bail, or on his own bond" becomes release "on bail, or on his own bond or bail bond". The BNSS defines "bail bond" as "an undertaking for release with surety" and "bond" as "a personal bond or an undertaking for release without surety" (Section 2(1)(d) and (e)), and "bail" as release on execution of "a bond or a bail bond" (Section 2(1)(b)).
• Minor edit — first proviso: "before releasing on bail or on his own bond a convicted person" becomes "before releasing on his own bond or bail bond a convicted person". On a reading of the Section 2(1)(b) definition of "bail", every release under the sub-section is on a bond or bail bond, so the proviso continues to cover all releases in the listed offences. The offence threshold — "death or imprisonment for life or imprisonment for a term of not less than ten years" — and the requirement of an opportunity "for showing cause in writing" are unchanged.
• Identical — second proviso and sub-sections (2) and (4). The India Code CrPC text prints sub-section (2) as "on a Appellate Court"; the BNSS reads "on an Appellate Court", as does the CrPC text extracted by the Supreme Court in Ashok Sirpal (para 5).
• Minor edit — Section 430(3): a comma after clause (i) becomes a semicolon. The two cases and the "special reasons" exception are unchanged.
• Neighbouring provisions: appeals from convictions (Section 374 CrPC) are now Section 415 BNSS; arrest of an accused in an appeal from acquittal (Section 390 CrPC) is Section 431 BNSS, which now refers to "an appeal ... presented under section 419".

Statutory text (relevant extract)

Extract, Section 389(1) CrPC (repealed from 1 July 2024), with the first proviso:

(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:

Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

Extract, Section 430 BNSS, sub-section (1) and the first proviso:

(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 releasing on his own bond or bail bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:

How it works — the steps

1. An appeal must be pending. Section 430(1) opens "Pending any appeal by a convicted person". The appeal lies under Section 415 BNSS — to the High Court from a Sessions trial or where more than seven years' imprisonment was passed (415(2)), and to the Court of Session from a Magistrate's conviction (415(3)).
2. Application to the appellate court. The appellant asks the appellate court to suspend "the execution of the sentence or order appealed against" and, if in custody, to release him. Under Section 430(2), the High Court may exercise the same power where the appeal lies to a court subordinate to it.
3. Serious offences — written objection from the prosecutor. If the offence is punishable with death, life imprisonment or at least ten years, the court must give the Public Prosecutor an opportunity to show cause in writing before release (first proviso).
4. Reasons in writing. Every order under Section 430(1) must be supported by "reasons to be recorded by it in writing".
5. Release terms. Release is on bail, or on the appellant's own bond (no surety) or bail bond (with surety). After release, the Public Prosecutor may apply to cancel bail (second proviso).
6. Short sentences — release by the trial court. Under Section 430(3), the convicting court itself "shall" release on bail a convict who satisfies it that he intends to appeal, if (i) he is on bail and sentenced to imprisonment not exceeding three years, or (ii) the offence is bailable and he is on bail — unless there are special reasons for refusing. Release lasts long enough to present the appeal and obtain orders under Section 430(1), and the sentence is deemed suspended meanwhile.
7. Time on release. If the appellant is ultimately sentenced to imprisonment, the time on release is excluded in computing the term (Section 430(4)).

What this means in practice

For the convicted appellant and defence advocate

• For a sentence up to three years (on bail at trial) or a bailable offence, apply to the convicting court under Section 430(3), satisfying it that you intend to appeal.
• In the appeal, state what you want suspended — the substantive sentence, the fine, or the conviction itself — and why. If the conviction carries a disqualification under another law, say so expressly (Rama Narang below). If a fine was imposed, ask for its suspension too (Ashok Sirpal below).
• For offences punishable with death, life or at least ten years, expect the court to call for the Public Prosecutor's written objection before release; Atul Tripathi holds that serving papers on the prosecutor is not enough.
• The appellate court looks for something "palpable" on the face of the record, not a re-weighing of evidence (Omprakash Sahni below).

For the prosecution and the victim

• In serious offences, file the written show-cause the first proviso contemplates. After release, the second proviso keeps open an application to cancel bail.

For everyone

• Time on release does not count towards the sentence (Section 430(4)). Suspension defers or postpones execution of the sentence (Omprakash Sahni, para 22).

Judgments that still matter

Rama Narang v. Ramesh Narang and Ors., [1995] 1 S.C.R. 456 (1995 INSC 61) — 19 January 1995. A three-Judge Bench (A.M. Ahmadi CJI, R.M. Sahai and K. Jayachandra Reddy JJ.; judgment by Ahmadi CJI) considered whether an appellate court may stay a conviction, not just a sentence, where the conviction disqualified a managing director under Section 267 of the Companies Act, 1956. It held: "we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction". Because the court must give "reasons to be recorded by it in writing", the appellant must specifically invite its attention to the consequence; an appellant who obtained a general stay without disclosing that purpose could not claim the disqualification had ceased. The report shows no paragraph numbers. Section 430(1) BNSS repeats the words construed.

Atul Tripathi v. State of U.P. and Another, [2014] 14 S.C.R. 1188 (2014 INSC 499) — 22 July 2014. M.Y. Eqbal and Kurian Joseph JJ. (judgment by Kurian Joseph J.) held that the first proviso, inserted by Act 25 of 2005 (para 11), is mandatory (para 14): "Service of a copy of the appeal and application for bail on the public prosecutor by the appellant will not satisfy the requirement of first proviso" (para 15). The appellate court may refuse bail without hearing the prosecutor, but if inclined to release, must give the opportunity to show cause in writing, and if none is filed must record that (para 15). It contrasted the pre-conviction notice requirement in Section 439 (para 14) and set aside the bail orders (para 17). The BNSS proviso keeps the same requirement.

Omprakash Sahni v. Jai Shankar Chaudhary & Anr., [2023] 5 S.C.R. 141 (2023 INSC 478) — 2 May 2023. M.R. Shah and J.B. Pardiwala JJ. (judgment by Pardiwala J.) set aside a High Court order suspending life sentences for murder (para 35). The Court explained that suspension means deferring execution of the sentence (paras 21-22), and held that the court must ask whether the convict "stands for fair chances of acquittal", looking for "something palpable" on the face of the record; the appellate court "should not reappreciate the evidence at the stage of Section 389" (para 33).

Central Bureau of Investigation v. Ashok Sirpal, [2024] 10 S.C.R. 930 (2024 INSC 819) — 24 October 2024. Abhay S. Oka and Augustine George Masih JJ. (judgment by Oka J.) noted that Section 389 CrPC corresponds to Section 430 BNSS (para 5). It held that a direction to pay a fine is a sentence that can be suspended under sub-section (1) (paras 5-6), unconditionally or on conditions, but a deposit condition must not be impossible to comply with, as that "may amount to defeating his right of appeal" and may violate Article 21 (para 8). It upheld the suspension, treating the Rs. 15 lakh already deposited as the condition (para 10).

Which law applies to your case

Section 531(2)(a) BNSS provides that any appeal or application pending immediately before 1 July 2024 is disposed of under the CrPC "as if this Sanhita had not come into force". On a reading of that text, a suspension application in an appeal pending on that date is decided under Section 389 CrPC, and one in an appeal filed on or after it under Section 430 BNSS. The operative words are the same, so the judgments above remain relevant on a reading of the text. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 389 CrPC? Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 389 CrPC. Pending an appeal by a convicted person, the appellate court may, for reasons recorded in writing, suspend execution of the sentence or order appealed against and, if the appellant is in confinement, release him on bail, or on his own bond or bail bond.

What changed in suspension of sentence under the BNSS? Apart from a heading and punctuation edit, only the release wording. Section 430(1) BNSS adds 'or bail bond' to release 'on bail, or on his own bond', and the first proviso now reads 'before releasing on his own bond or bail bond' instead of 'before releasing on bail or on his own bond'. The Public Prosecutor's opportunity, the High Court's concurrent power (Section 430(2)), release by the trial court (Section 430(3)) and exclusion of time on bail (Section 430(4)) are unchanged.

Must the Public Prosecutor be heard before a convict is released pending appeal? Where the conviction is for an offence punishable with death, life imprisonment or imprisonment of not less than ten years, the first proviso to Section 430(1) BNSS requires the appellate court to give the Public Prosecutor an opportunity to show cause in writing. In Atul Tripathi v. State of U.P., [2014] 14 S.C.R. 1188, the Supreme Court held that serving a copy of the appeal and bail application on the prosecutor does not satisfy this requirement.

Can the trial court itself release a convict who wants to appeal? Yes, in two cases. Under Section 430(3) BNSS, if the convict satisfies the convicting court that he intends to appeal, and he is on bail and sentenced to imprisonment not exceeding three years, or was convicted of a bailable offence and is on bail, the court shall release him on bail unless there are special reasons to refuse, for long enough to present the appeal and obtain orders under Section 430(1).

Can an appellate court stay the conviction itself, not just the sentence? Yes, in a fit case. In Rama Narang v. Ramesh Narang, [1995] 1 S.C.R. 456, the Supreme Court held there was no reason to read Section 389(1) CrPC narrowly so as to exclude an order of conviction, where the conviction would cause a disqualification under another law. It added that the appellant must specifically draw the court's attention to that consequence, because the court must record reasons in writing.

Can a fine be suspended pending appeal? Yes. In Central Bureau of Investigation v. Ashok Sirpal, [2024] 10 S.C.R. 930, the Supreme Court, noting that Section 389 CrPC corresponds to Section 430 BNSS, held that a direction to pay a fine is a sentence that can be suspended, with or without conditions. Any condition to deposit money must not be impossible to comply with, since that may defeat the right of appeal.

Does time spent on bail during the appeal count towards the sentence? No. Section 430(4) BNSS, repeating Section 389(4) CrPC, provides that when the appellant is ultimately sentenced to imprisonment for a term or for life, the time during which he was released is excluded in computing the term of the sentence.

Which law applies to an appeal filed before 1 July 2024? Section 531(2)(a) BNSS provides that an appeal or application pending immediately before the BNSS came into force is disposed of under the CrPC as if the BNSS had not come into force. On a reading of that text, a suspension application in an appeal pending on 1 July 2024 is decided under Section 389 CrPC; the two provisions use the same operative words.

Related

• Criminal revision: CrPC 397-401 vs BNSS 438-442
• Special bail powers: CrPC 439 vs BNSS 483
• Bail provisions — old CrPC vs new BNSS
• Appeal against acquittal and the victim's appeal
• Bail in bailable offences: CrPC 436 vs BNSS 478
• CrPC to BNSS master table
• Sections 374–376 CrPC vs Sections 415–417 BNSS — Appeals from Convictions, Guilty Pleas and Petty Cases

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 2(1)(b), (d) and (e), 415, 430, 431 and 531.
• Code of Criminal Procedure, 1973 (India Code text): Sections 389 (with the Act 25 of 2005 footnote) and 390.
• Judgments read in full text: Rama Narang v. Ramesh Narang (1995_1_456_475_EN.md); Atul Tripathi v. State of U.P. (2014_14_1188_1199_EN.md); Omprakash Sahni v. Jai Shankar Chaudhary (2023_5_141_164_EN.md); Central Bureau of Investigation v. Ashok Sirpal (2024_10_930_938_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.