Recently, Rahul Gandhi filed a criminal revision application before the Hon'ble High Court of Gujrat, praying to stay the order of conviction against him. He was convicted for the offence punishable as defamation under section 499 of IPC, 1860. He was sentenced to two years of imprisonment, for which he obtained an order for suspension of sentence by the Surat Sessions Court until the disposal of his appeal.

The controversy arose because of the disqualification of this political leader. Although his sentence order was suspended, he was still not allowed to contest elections or hold his office as a Member of Parliament, as his conviction continued to be in effect and he was considered an offender in the eyes of the law. Thus, to prevent disqualification and to meet the eligibility criteria mentioned under section 8(3) of the RPA, Rahul Gandhi sorted for a stay order on his conviction.

The Gujrat High Court rejected the plea on the grounds that representatives of the people should have clear antecedent. The legal question here is whether there was any need for him to seek suspension of the conviction even after the Session Court had already suspended the sentence.

The legal development of the remedy of suspension under criminal law-

The foundation of the Indian Legal System lies in the core principle of the "Presumption of Innocence.” This signifies that any individual accused of a criminal offence is entitled to be regarded as innocent until proven guilty through a lawful process. Therefore, the Indian criminal justice system is prominently inclined towards the approach of treating the accused as innocent until substantial evidence is presented against them. The Indian legislation has incorporated this concept from the English law.

As it is well known, when the trial concludes, the accused person is either convicted or acquitted. If the accused is convicted by the lower court, the presumption of innocence comes to an end. The conviction operates, and the accused has to undergo sentence. Though one remedy is still available: an appeal can be preferred in the appellate court.

In case where the sentence of punishment is pronounced and the appeal is pending, the convict can approach the court to suspend the sentence of punishment decreed against him. This remedy, known as suspension of sentence, is provided under section 389 of the CrPC.

Section 389 of the Code of Criminal Procedure provides suspension of sentence as a statutory remedy. As per Section 389 of Cr.P.C, the appellate court has the power to direct the suspension of the sentence of an accused pending the appeal and also to release the appellate on bail based on the nature of offence and the facts and circumstances of each case.

Suspension of sentence and the suspension of conviction-

Suspension is an act of temporarily preventing something from operating or being in force. Therefore, the question arises here: Is there any provision under the Cr.P.C which allows the remedy of suspension of conviction?

Here, we need to understand the two phrases, “Suspension of sentence” and “suspension of conviction”, have different meanings. This question has been discussed in the recent instance of the Rahul Gandhi defamation case. Neither section 389 nor any other section of Cr.P.C makes an explicit mention of suspension of conviction as a statutory remedy. The order of sentence is always subsequent to the order of conviction, and the suspension of the execution of the sentence does not alter or affect the fact that the offender has been convicted of an offence and has attracted the sentence of an imprisonment. When the order of sentence is stayed by the court, then that particular order will not be operative indefinitely. While the order of stay on conviction does not make the conviction non-existent, but only non-operative. That is, by staying the order of sentence, the presumption of guilt does not come to an end. Therefore, it is clear that an order of suspension of sentence is not equivalent to an order of suspension of conviction, and that these two reliefs operate in different fields.

In brief, we can say the following:

  • ● Where the sentence passed against the petitioner is suspended, he must not be held entitled to seek suspension of the order of conviction.
  • ● When the order of conviction is suspended, the accused cannot remain behind bars and has to be released either on bail or on his own bond. Consequently, when an order of conviction is suspended, the order of sentence has to be suspended.

Role of Judiciary in the interpretation of section 389 of cr. pc

The Apex Court, through its various judgements and precedents, has settled the position of law with respect to stay on the order of conviction.

Ram Narang V. Ram Nrang (1995)- a 3-judge bench of the Supreme Court for the first time recognized the authority of the appellate court to suspend conviction. The court was of the opinion- "that there is no reason to give a narrow interpretation on Section 389(1) of the code and to not extend it to an order of conviction in a fit case." Thus, section 389(1) does not only provide relief against order of sentence and bail but also encompasses stay on the order of conviction.

The Ravikant S. Patil v. Sarvabhouma S. Bagali (2007) Supreme Court also clarified that an order granting a stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case.

B.R. Kapoor vs State of Tamil Nadu And Anr (2001) Supreme Court, held that merely suspending the execution of sentence does not alter the effect that the offender is convicted for a very serious and that her conviction still operates which disqualifies them to be appointed as a chief minister. Thus, a person who is disqualified under section 8(3) of RPA, 1950 cannot be appointed as Chief Minister and cannot continue to function as such.

Following factors can be taken in to consideration in granting the remedy under section 389 of cr. pc:

  • ● Seriousness of offence or offence of moral turpitude-
  • ● Criminal antecedents of the accused

The judgment which has gone inconsistent with the approach adopted above was the case of Navjot Singh Sidhu v. State of Punjab-(2007) wherein accused Navjot Singh along with other co-accused were convicted under section 304 part II of IPC and were sentenced for 3 years of imprisonment. After his conviction though he resigned from the post of MP from Lok Sabha, yet he contest for the elections again filed an application for the suspension of conviction. And the Supreme Court granted him with the relief of stay on order of conviction.


On perusal of the legal provision dealing with the suspension of sentence under section 389 of the Cr. P.C and various aforementioned judgments, it can be well established that the recent case of Rahul Gandhi has left some questions unanswered. The rules related to granting this relief are not uniform. On one hand, the Supreme Court has suggested that such relief should not be provided in cases where crime of serious nature is involved; on the other hand, the Supreme Court itself stayed the order of conviction of Navjot Singh Sidhu for an offence punishable under section 304 Part II of the IPC.

Thus, it can be observed from the whole scenario that we need better and more uniform approach in dealing with the suspension of sentence and suspension of conviction. Now, it is for the Supreme Court to shed ight in this regard.