Allahabad HC Rejects Bail Pending Appeal When Counsel Was Ready to Argue on Merits, Fixes Final Hearing

The Lucknow Bench held that a convicted appellant cannot delay final disposal of a criminal appeal by pressing a suspension-of-sentence application when all parties are ready to argue on merits.

The Lucknow Bench of the Allahabad High Court, in a Division Bench order delivered on 28 July 2026, rejected an application under Section 389 CrPC for suspension of sentence filed by Pawan Kumar Pandey, who was convicted by the Special Judge (M.P./M.L.A. related matters)/Additional Sessions Judge (FTC-II), Ambedkar Nagar on 4 January 2025. The Bench, comprising Justice Rajesh Singh Chauhan and Justice Ram Manohar Narayan Mishra, found that the appellant's counsel had previously shown willingness to argue the criminal appeal on merits but, on the date of final arguments, reported receiving instructions to press only the bail application. The Bench refused to allow that posture to hold the appeal in suspension, rejecting the sentence-suspension application and fixing 19 August 2026 for final disposal of both the criminal appeal and the connected criminal revision.

Conviction and Connected Revision

Pawan Kumar Pandey was convicted under Sections 147, 148, 307/149 and 427 IPC in Sessions Case No. 297 of 2020, arising out of Case Crime No. 157 of 1990 registered at Police Station Baskhari, District Ambedkar Nagar. The trial court sentenced him to a maximum of seven years' rigorous imprisonment with fine. The incident dated back to 26 June 1990, meaning the trial took approximately 35 years to conclude.

Separately, the son of the injured witness, Nirbhay Singh, filed Criminal Revision No. 370 of 2025 before the High Court seeking enhancement of the sentence from seven years' rigorous imprisonment to life imprisonment. The criminal appeal and the criminal revision were connected and listed before the same Bench.

Proceedings Before the High Court and the Adjournment Pattern

On 4 February 2026, counsel for all parties concluded arguments on the bail application. They then sought one week's time to address the court on the merits of the appeal and the revision, and the case was listed for 11 February 2026. On that date, counsel for the appellant did not appear, although the Additional Advocate General (AAG) and counsel for the victim were present. The case was adjourned on 18 February 2026 on the appellant's counsel's request for a date after the Holi vacation.

On 19 March 2026, counsel for the victim was out of station and the matter was again deferred. On subsequent dates, adjournments were granted on the request of counsel for the parties. On 21 July 2026, the appellant's counsel argued at substantial length but could not conclude, leading to a listing for 22 July 2026. On that date, counsel Sri A.P. Mishra stated that he had no instructions from his client to argue the appeal and pressed only the bail application.

Appellant's Submissions on Bail

Sri Mishra relied on Purushothaman v. State of Tamil Nadu, AIRONLINE 2023 SC 937, for the proposition that an application for suspension of sentence should be decided at the earliest and that an advocate is not expected to argue the appeal on merits when only the suspension application is listed. He contended that the appellant had served more than two years of the seven-year sentence, that most fact witnesses had not supported the prosecution story regarding the appellant's presence at the spot, and that the extensive criminal history of 93 cases should not be used against him because the appellant had been convicted only in two of those cases and acquitted in most others.

For that last submission, counsel relied on Prabhakar Tewari v. State of U.P. & Anr., Criminal Appeal No. 152 of 2020 (arising out of SLP (Crl.) No. 9207/2019), and Indra Pratap Tiwari v. The State of Uttar Pradesh, Criminal Appeal No. 1548 of 2022, both of which he read to stand for the principle that criminal history, if properly explained, cannot be the sole reason to deny bail.

How the Bench Distinguished Purushothaman

The Division Bench addressed the reliance on Purushothaman directly. In that case, the Supreme Court's observation arose in a context where only the suspension-of-sentence application was listed before the High Court and the High Court had rejected it on the ground that counsel declined to argue the appeal. In the present case, the Bench noted, the suspension application had not been rejected, and the criminal appeal and criminal revision were listed alongside the bail application. Critically, the appellant's own counsel had sought time on 4 February 2026 to address the court on the merits of the appeal and the revision.

The Bench found that the factual matrix here was materially different: the parties had been given repeated opportunities, argument had already proceeded at length on the merits, and it was only at the last stage that counsel claimed instructions to argue only the bail application. The Purushothaman ratio was therefore inapplicable.

State's and Victim's Objections

Sri Anurag Verma, learned AGA, took strong objection to the appellant's counsel's claim that the time sought on 4 February 2026 was only to seek instructions, rather than to argue the merits. He relied on State of Maharashtra v. Ramdas Shrinivas Nayak and Another, (1982) 2 SCC 463, for the principle that judicial records are conclusive and statements recorded in a court order cannot be contradicted by counsel from the Bar or by affidavit. The order of 4 February 2026, he submitted, clearly reflected that arguments on the bail application had concluded and time was sought to address the merits.

On the question of criminal antecedents, the State argued that the appellant is a convicted person, not an undertrial, and that the presumption of innocence stands displaced by the trial court's finding of guilt. The AGA cited Dhan Jee Pandey v. The State of Bihar & Another, Criminal Appeal No. 1864 of 2026, particularly its observations that suspension of sentence in serious offences must not be granted as a matter of routine, that the appellate court must apply its mind to the nature of the offence and the gravity of the trial court's findings, and that criminal antecedents retain relevance even where cases arising from political rivalry resulted in acquittal. He also cited Rajni v. State of Punjab and Another, 2026 SCC OnLine SC 1050, for the proposition that criminal antecedents bear directly on whether an accused is likely to abide by bail conditions and must weigh heavily against suspension of sentence where offences are grave.

Sri Nadeem Murtaza, counsel for the victim, stated that the injured witness Anil Kumar Singh (PW-7) had received serious injuries including firearm injuries caused by the appellant using deadly weapons in broad daylight in a busy market. He contended that the appellant's claim of having served more than two years was factually incorrect: during the trial, the appellant spent approximately 35 days in custody (from 18 August 1993 to 23 September 1993), and pursuant to conviction he has been in custody from 4 January 2025. The total period in custody at the time of hearing was approximately one year and seven months, not more than two years. He also pointed to non-bailable warrants issued against the appellant on multiple dates in 2009 due to deliberate absence, and to the 35-year trial delay partly attributable to non-cooperation by the appellant.

Counsel for the victim further placed before the Bench the Supreme Court's observations in Central Bureau of Investigation v. Rajendra Sadashiv Nikalje alias Chhota Rajan, SLP (Crl.) D.No. 5707/2025, where the Supreme Court had reiterated that the power under Section 389 CrPC is to protect the rights of a convicted accused only where the likelihood of success of the appeal is very high, or where a fixed term of imprisonment is ordered and the appeal is unlikely to be heard in the near future.

The Bench's Reasoning on Suspension of Sentence

The Division Bench declined to suspend the sentence, recording two principal reasons. First, both the State and the victim's counsel were ready to argue the criminal appeal and the criminal revision on merits. The appellant's counsel had himself shown willingness on 4 February 2026 to argue on merits and had indeed argued at substantial length on 21 July 2026 without concluding. Second, allowing the appellant to retreat from that position and press only the bail application would amount to permitting the use of delaying tactics in the disposal of the criminal appeal and the criminal revision.

The Bench articulated the governing principle as follows: the Supreme Court has consistently held that suspension of sentence should be disposed of when the appeal cannot be heard finally for cogent reasons, but where parties are ready to argue on merits, the suspension application should not be given preference over final disposal. The court's endeavour must be to decide the criminal appeal at the earliest when parties are ready.

In this case, no cogent reason prevented the final hearing. The Bench expressly did not enter into the merits of the criminal appeal or the criminal revision at this stage, confining its order to the suspension application alone.

Order

The Division Bench rejected CMA/I.A. No. 1 of 2025, the application for suspension of sentence filed under Section 389 CrPC. The criminal appeal and the connected Criminal Revision No. 370 of 2025 were fixed for final disposal on 19 August 2026.