-by Barrister Shajib Mahmood Alam
As a trial advocate, one of the more common questions that I get asked is regarding bail when a convicted person decides to appeal. What happens during that appeal stage with regards to Bail and suspension of sentence is what this article is concerned about.
The stigma surrounding a criminal conviction is nothing new. It is especially difficult for those who consider themselves not-guilty of a crime for which they have been convicted by a court. A conviction at trial is not the end of the world as the convicted person can still appeal.
Section 426 of the Code of Criminal Procedure, 1898 is the legal provision that concern suspension of sentence pending appeal and the release of appellant on bail. Subsection (1) of the Section 426 states that “pending any appeal by a convicted person, the Appellate Court may……………..order that the execution of the sentence or order appealed against be suspended and……that he be released on bail….”
In an appeal against a short sentence, as the Appellate Division puts it, the court should grant bail in the exercise of a proper discretion because usually it takes time to hear the appeal and with the passage of the period of sentence, the appeal becomes infructuous. (Case in point: Alal Uddin vs The State [19 BLD (AD) 202])
The situation is not the same in cases where the conviction is one of life imprisonment as illustrated in State v Abdul Momin Sarder [50 DLR 588] where the court opined that a convict who is sentenced to imprisonment for life does not fall within the pronouncement of the Appellate Division and hence bail cannot be granted under 426 to those who have been sentenced to life imprisonment.
In considering whether or not to grant bail the court will use its discretion but factors like the defendant’s age, professional inconvenience or financial suffering, voluntary surrender, conduct during trial etc will be taken into account. (Abdul Hossain (Md) vs The Sate [4 BLC 151])