Dhan Jee Pandeyv.State of Bihar & Anr

Legal Analysis: Dhan Jee Pandey vs. State of Bihar & Anr

Citation: 2026 INSC 349

Court: Supreme Court of India

Coram: Justice Ahsanuddin Amanullah and Justice R. Mahadevan (Two‑Judge Bench)

Judgment Author: Justice R. Mahadevan

Date of Decision: April 10, 2026

Nature of Judgment: This is a judgment by a Two‑Judge Bench of the Supreme Court in its criminal appellate jurisdiction, arising from Special Leave Petitions against an order of the Patna High Court suspending sentence and granting bail to a life convict under Section 389 CrPC. The Court allowed the appeal, set aside the High Court’s order, and held that suspension of sentence in a murder case can be granted only in exceptional circumstances, and the appellate court cannot reappreciate evidence at that stage.

1. Synopsis of the Judgment

The respondent-accused was convicted under Sections 302, 307 read with Section 34 IPC and Section 27(3) of the Arms Act and sentenced to life imprisonment. During the pendency of his appeal, the High Court suspended his sentence and released him on bail under Section 389 CrPC. The informant (appellant) challenged this order. The Supreme Court held that the High Court erred in granting suspension of sentence in a grave offence like murder without demonstrating exceptional circumstances. The Court reiterated that after conviction, the presumption of innocence is erased, and suspension of sentence is an exception, not the rule. The High Court’s selective reappreciation of evidence was impermissible. The impugned order was set aside, and the accused was directed to surrender.

2. Basic Information of the Judgment

Case Title: Dhan Jee Pandey vs. State of Bihar & Another (with connected appeal)

Criminal Appeal Nos.: 1864-1865 of 2026 (arising out of SLP (Crl.) Nos. 4241/2025 and 12906/2025)

Bench: Justice Ahsanuddin Amanullah and Justice R. Mahadevan

Date of Decision: April 10, 2026

Citation: 2026 INSC 349

Appeal From: Order dated 22.11.2024 of the Patna High Court in Criminal Appeal (DB) No. 1180 of 2018

3. Legal Framework

This judgment involves the scope of Section 389 of the Code of Criminal Procedure, 1973 (suspension of sentence pending appeal) and the principles governing bail post‑conviction.

A. Key Provisions of Law:

Code of Criminal Procedure, 1973:

• Section 389: Appellate court may suspend execution of sentence pending appeal and release the convict on bail, but must record reasons in writing. For offences punishable with death or life imprisonment, the Public Prosecutor must be given an opportunity to show cause.

B. Related Precedents (Discussed in the Judgment):

• State of Haryana v. Hasmat (Citation not fully provided): Suspension of sentence in serious offences is not a routine matter; reasons must be recorded. (Para 15)

• Om Prakash Sahni v. Jai Shankar Chaudhary (2023 SCC OnLine SC 517): Suspension may be justified only where a palpable infirmity is apparent on the face of the record; reappreciation of evidence is impermissible. (Para 16)

• Vijay Kumar v. Narendra (2002) 9 SCC 364: In cases involving conviction under Section 302 IPC, suspension of sentence can be granted only in exceptional cases. (Para 15)

• Janardan Ray v. State of Bihar (Citation not fully provided): High Court cannot reappreciate evidence at the stage of Section 389. (Para 17)

• Satender Kumar Antil v. CBI (2022) 10 SCC 51: Delay in disposal of appeal is a relevant consideration for bail. (Para 8 – distinguished)

4. Relevant Facts of the Case

• Incident (04.01.2016): The deceased was allegedly shot dead by co-accused Shiv Jee Pandey. Respondent No. 2 (Shekhar Pandey) and others allegedly caught hold of the deceased while the fatal shot was fired.

• Trial (18.08.2018): The Additional District Judge, Buxar convicted respondent No. 2 under Sections 302/34, 307/34 IPC and Section 27(3) Arms Act, sentencing him to life imprisonment.

• Appeal before High Court: Respondent No. 2 filed Criminal Appeal (DB) No. 1180 of 2018.

• Impugned Order (22.11.2024): High Court suspended sentence and granted bail, noting that the fatal shot was attributed to a co-accused and that the appeal may take time.

• Appeal to Supreme Court: The informant challenged the suspension of sentence.

• Criminal Antecedents: Respondent No. 2 had multiple prior cases (offences under Sections 307, 386, 147, 148, 149 IPC and Arms Act, as well as cheating cases).

5. Issues Identified by the Supreme Court

• Whether the High Court was justified in suspending the sentence of a life convict under Section 389 CrPC in a murder case without demonstrating exceptional circumstances.

• Whether the High Court could reappreciate evidence and form a prima facie opinion on the convict’s role at the stage of suspension of sentence.

6. Ratio Decidendi (The Reasoning and Decision of the Court)

A. Suspension of Sentence Post‑Conviction – Strict Parameters

The Court held that after conviction, the presumption of innocence no longer survives. Suspension of sentence is an exception, not the rule, especially in grave offences like murder. The appellate court must record reasons and consider the nature of the offence, the manner of commission, and the trial court’s findings. (Paras 14-15)

B. Reappreciation of Evidence at Section 389 Stage is Impermissible

The High Court had selectively considered aspects such as political rivalry, delay in FIR, and the fact that the fatal shot was fired by a co-accused. The Supreme Court held that this amounted to a premature reappreciation of evidence, which is not permitted at the stage of Section 389. The only permissible inquiry is whether there is a palpable infirmity on the face of the record indicating that the conviction may not ultimately stand. (Paras 16, 20)

C. Constructive Liability Under Section 34 – No Need for Specific Overt Act

The High Court had granted bail partly because the respondent’s role was only to hold the deceased while another fired. The Supreme Court rejected this, holding that once common intention is established, each participant is equally liable. The absence of a specific overt act does not dilute culpability at this stage. (Para 19)

D. Criminal Antecedents and Threat Perception are Relevant

The respondent had multiple prior criminal cases and there were allegations of threatening the informant. While these may not be conclusive, they are relevant factors in assessing whether suspension of sentence is appropriate. (Para 22)

E. Delay in Appeal Alone Not Sufficient

The High Court had noted that the appeal may take time. The Supreme Court held that prolonged incarceration or pendency of appeal cannot, in isolation, justify suspension of sentence in a murder case, especially when the conviction is based on credible evidence. (Para 21)

7. New Legal Principles Established / Reiterated

• Suspension of sentence under Section 389 CrPC in murder cases is only for exceptional circumstances: The appellate court must demonstrate a palpable infirmity in the trial court’s judgment; routine grant of bail post‑conviction is impermissible.

• Reappreciation of evidence at the suspension stage is forbidden: The High Court cannot weigh evidence or pick lacunae to form a prima facie opinion in favour of the convict. That exercise is reserved for final hearing of the appeal.

• Constructive liability under Section 34 IPC is sufficient for conviction; absence of specific overt act does not automatically entitle a convict to suspension of sentence.

• Delay in disposal of appeal, without more, is not a sufficient ground to suspend sentence in a grave offence.

8. The Court’s Analysis and Examination of Concepts

A. Distinction Between Pre‑trial Bail and Post‑conviction Suspension

The Court emphasised that the legal framework under Section 389 is qualitatively different from Sections 437/439 CrPC. Pre‑trial bail operates on the presumption of innocence; post‑conviction, that presumption is replaced by a judicial finding of guilt. Therefore, the burden on the convict seeking suspension is much higher.

B. “Palpable Infirmity” – What Does It Mean?

The Court clarified that a “palpable infirmity” must be something apparent on the face of the record – e.g., a legal error, jurisdictional defect, or evidence that is ex facie inadmissible. It does not include minor inconsistencies or alternative interpretations of evidence that require a full appellate review.

C. Role of Criminal Antecedents

While acquittals in prior cases may weaken the significance of antecedents, the mere registration of multiple serious cases (including under Section 307 IPC) indicates a pattern of behaviour that cannot be ignored when considering suspension of sentence.

9. Critical Analysis of the Judgment

Strengths

• Correctly restricts the High Court’s power under Section 389: Prevents routine suspension of sentence in serious cases, which undermines the trial court’s findings.

• Protects the informant’s interest: The judgment recognises that victims and their families have a stake in the execution of sentence and can challenge orders granting suspension.

• Reinforces the principle against reappreciation of evidence: Ensures that the appellate court does not pre-judge the appeal at an interlocutory stage.

Potential Concerns / Critiques

• No discussion on the specific facts of the respondent’s role: The Court did not examine whether the trial evidence actually established common intention. This was consistent with the limited scope of review, but may leave some ambiguity.

• Distinction from Satender Kumar Antil: The Court did not explain why the principle of delay (relied upon by the respondent) was not applicable. A clearer distinction would have strengthened the judgment.

Impact

• Section 389 proceedings: High Courts must now apply stricter scrutiny before suspending sentence in murder cases. Orders granting bail without demonstrating exceptional circumstances will be set aside.

• Informant’s right to challenge: The judgment reaffirms that the informant (victim’s family) has locus standi to challenge suspension of sentence before the Supreme Court.

10. Final Outcome

The Supreme Court allowed the appeals. The impugned order dated 22.11.2024 passed by the Patna High Court suspending the sentence of respondent No. 2 was set aside. Consequently, the bail bond was cancelled. Respondent No. 2 was directed to surrender before the trial court within two weeks, failing which the trial court was to take steps to secure his custody. The connected appeal was allowed on the same terms.

11. Practical Application, Court Lines, and Legal Strategy

Use in Court (Practical Application)

• For the prosecution/informant: If the High Court suspends sentence in a murder case without recording cogent reasons or by reappreciating evidence, file an appeal before the Supreme Court citing this judgment. Argue that suspension is only for exceptional circumstances and that the High Court cannot act as a final appellate court at the interim stage.

• For the convict seeking suspension: To succeed under Section 389, you must demonstrate a palpable infirmity on the face of the trial record (e.g., inadmissible evidence, jurisdictional error, or a clear contradiction that makes the conviction unsustainable). Mere arguments about alternative interpretations or minor inconsistencies will not suffice. Also, highlight any exceptional circumstances such as terminal illness or extraordinary delay beyond the convict’s control.

• For the High Court (Section 389 application): Do not reappreciate evidence. Examine only whether the trial court’s judgment suffers from a patent legal error or a glaring factual omission that would likely result in acquittal. If such infirmity exists, record detailed reasons. Otherwise, reject the application.

Court Lines

“Upon conviction, the presumption of innocence stands displaced by a judicial determination of guilt, and the appellate court is required to approach the prayer for suspension of sentence with greater circumspection.” (Para 14)

“In cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted.” (Para 15, quoting Vijay Kumar v. Narendra)

“The appellate Court should not reappreciate the evidence at the stage of Section 389 CrPC and try to pick up a few lacunae or loopholes here or there in the case of the prosecution.” (Para 16, quoting Om Prakash Sahni)

“The doctrine of constructive liability under Section 34 IPC is well settled; where an offence is committed in furtherance of a common intention, each participant is equally liable for the act done in execution thereof. The absence of a specific overt act cannot, at this stage, dilute the culpability of the convict.” (Para 19)

Legal Strategy Insight

For the Informant/Prosecution (Challenging Suspension):

• Step 1 – Obtain the High Court’s order granting suspension. Identify whether the High Court has reappreciated evidence or relied on factors that are irrelevant at the Section 389 stage.

• Step 2 – File an SLP before the Supreme Court immediately. Cite Om Prakash Sahni and Hasmat to argue that the High Court exceeded its jurisdiction.

• Step 3 – Highlight criminal antecedents of the accused and any threats to witnesses/informant. These are relevant factors showing that suspension is not appropriate.

For the Convict (Seeking Suspension):

• Step 1 – Do not rely on delay alone. Show specific prejudice – e.g., evidence lost, witnesses dead, or a clear legal error in the trial court’s judgment.

• Step 2 – If you have served a significant portion of the sentence (e.g., 10+ years in a life sentence), argue that continued incarceration pending appeal (which may take years) amounts to unjust punishment. However, note that this argument is weaker after this judgment.

• Step 3 – Distinguish your case: show that the trial court’s judgment is based on no evidence or on inadmissible evidence, not merely that there are inconsistencies.