Revision Against Rejection of Sentence Suspension Not Maintainable; High Court Directs Convicts to Invoke Section 389(2) CrPC
The Tripura High Court dismissed a criminal revision petition challenging a Sessions Court's refusal to suspend sentence, holding the correct remedy is Section 389(2) CrPC before the High Court itself.
The High Court of Tripura, on 6 May 2026, dismissed a criminal revision petition filed by two convicted persons who had challenged the Sessions Court's refusal to suspend their sentences pending appeal. Justice Biswajit Palit, sitting singly, held that a revision under Section 397 of the Code of Criminal Procedure is not maintainable against an interlocutory order rejecting sentence suspension. The court directed the petitioner-convicts to approach the High Court Registry directly under Section 389(2) CrPC, which expressly empowers the High Court to exercise the same suspension powers as a subordinate appellate court when an appeal is pending before that subordinate court.
Conviction, Appeal, and the Rejected Suspension Application
The two petitioners — Sabujer Rahaman @ Sabuj, a resident of Khilpara, Amtali, Gomati district, and Ali Ahamed, a resident of Tarapukur, Sepahijala district — were convicted by the Chief Judicial Magistrate, Sepahijala District, Sonamura, by a judgment dated 4 August 2025 in PRC(WP) No.94 of 2024.
The trial court found both guilty under Section 457 and Section 382 of the Indian Penal Code. Each was sentenced to rigorous imprisonment of seven years and a fine of Rs. 50,000 — with a default simple imprisonment of six months — for each offence. Both sentences were directed to run concurrently.
The convicts preferred a criminal appeal before the Sessions Judge, Sepahijala District, Sonamura, registered as Crl. Appeal No.09 of 2025. Along with the appeal, they filed an application under Section 389 CrPC seeking suspension of the sentence pending disposal of the appeal. The Sessions Judge rejected that application by order dated 30 January 2026 in Crl. Misc. No.07 of 2025.
Challenging the Sessions Judge's rejection order, the convicts filed the present criminal revision petition before the High Court under Section 397 CrPC read with Section 401 CrPC — corresponding to Section 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
The Petitioners' Argument: High Court Has Concurrent Jurisdiction
Counsel for the petitioners, Mr. Debajit Biswas, argued that the High Court has jurisdiction to entertain the petition. He drew the court's attention to Section 389(2) CrPC, which provides that the power conferred on an appellate court under Section 389(1) — to suspend sentence and release a convicted person on bail pending appeal — may also be exercised by the High Court when the appeal is pending before a court subordinate to it.
He relied on the Andhra Pradesh High Court's decision in Boya Nallabothula Manohar v. State of Andhra Pradesh, 2024 SCC OnLine AP 618, where the court held that since the appeal was pending before a District Court subordinate to the High Court, the High Court had jurisdiction to entertain a petition under Section 389(2) CrPC. The AP High Court read the provision as conferring concurrent jurisdiction on the High Court alongside the subordinate appellate court.
Counsel also relied on the Allahabad High Court's order in B.K. Tiwari v. State of U.P. and Another, (2016) 6 AllLJ 657. The Allahabad court had observed that the power to grant or reject bail exercisable by a lower appellate court is concurrent with the High Court's power under Section 389(2) CrPC, drawing an analogy with Section 439 CrPC under which both the High Court and the Sessions Court may direct release of an undertrial on bail. The Allahabad court had also directed its Registry to create appropriate case categories to accept applications filed directly under Section 389(2) CrPC, observing that a statutory remedy cannot be bypassed merely because the Registry's computer systems had not yet generated the requisite category.
Mr. Biswas submitted that when the petitioners approached the High Court to file an application under Section 389(2) CrPC, it was not entertained, which compelled them to file the present revision petition instead.
The State's Objection: Interlocutory Order Bars Revision
The Public Prosecutor, Mr. Raju Datta, strongly opposed the petition. He argued that the order challenged — the Sessions Court's rejection of the suspension application — is an interlocutory order, and Section 397(2) CrPC expressly bars revision against interlocutory orders.
He relied on the Madras High Court's decision in Udaiyar @ Sattaiudaiyar and Ors. v. State represented by Sub Inspector of Police (7 March 2018), where the court held that an order dismissing an application for suspension of sentence and bail is not a final order but only an interlocutory order, and revision against it is not maintainable under Section 397(2) CrPC.
He also cited the Madras High Court's later decision in Bapuji Murugesam v. Mythili Rajagopalan, 2022 SCC OnLine Mad 3258, which reaffirmed that orders relating to grant or suspension of sentence or bail are interlocutory in nature and are not revisable under Section 397 CrPC, regardless of the angle from which they are examined.
On the basis of these authorities, the Public Prosecutor submitted that the revision petition was liable to be dismissed outright.
The Court's Reasoning
Justice Biswajit Palit agreed with the State's position on maintainability. The court held that since the criminal appeal is pending before the Sessions Judge, Sepahijala District, Sonamura — a court subordinate to the High Court — the only remedy available to the petitioner-convicts against the rejection of their suspension application is to invoke Section 389(2) CrPC before the High Court directly.
The court reproduced Section 389(2) CrPC, which reads: “The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.”
The court's reasoning was straightforward: the revision route under Section 397 CrPC is blocked by the interlocutory nature of the Sessions Court's order. The statutory remedy that the law provides in this situation is not revision but a direct application to the High Court under Section 389(2) CrPC. The court did not find it necessary to rule on the merits of the suspension application itself.
The court also addressed the practical difficulty raised by the petitioners — that their earlier attempt to file under Section 389(2) CrPC was not accepted by the Registry. Taking a cue from the Allahabad High Court's direction in B.K. Tiwari, Justice Palit directed the High Court Registry to accept such an application if filed by the petitioner-convicts and to register it accordingly for hearing and disposal.
Order
The Criminal Revision Petition was dismissed as not maintainable under Section 397 CrPC. The petitioner-convicts were granted liberty to file an appropriate application before the High Court Registry under Section 389(2) CrPC. The Registry was directed to accept and register such an application for hearing and disposal. The records were directed to be sent down to the trial court along with a copy of the order.