SHANTI BEHAL Vs. STATE

JUDGEMENT

(1.) Shanti Behal, the appellant, by this application seeks suspensions of sentence and grant of ball pending decision of appeal filed by her against the judgment of convictiom dated 20th April 1993 and order of sentence dated 21st April 11993 passed by Sh. S. N.Kapoor, learned Additional Sessions Judge, Delhi.

(2.) By judgment impugned in the appeal learned Additional Sessions Judge has held that the appellant Shanti Behal is guilty for the offences under Sections 302 and 498A, Indian Penal Code . Jagdish Behal, her son, has been found guilty of offence under Section 498A, Indian Penal Code . As regards the offence under Section 302 Indian Penal Code , the learned Additional Sessions Judge has awarded sentence of death to Stot. Shanti Behal and has directed that she shall be hanged by neck till she is dead, after confirmation of sentence by this court. As required by Section 366 of Code of. Criminal Procedure (for short 'the Code') the proceedings of the case against Shanti Behal have been submitted to this court for the purpose of confirmation of sentence of death (Murder Reference 2/93).

(3.) Sh. Handa, learned advocate appearing for the State, has raised a preliminary objectin that the application is not maintainable. The contention is that, a convict, in respect of whom confirmation proceeding under Section 366 read with Section 368 of the Code are pending in the High Court, is not entitled to file an application under Section 389 of the Code. Counsel submits that the sentence of death does not come into existence till it is confirmed and contends that as there is no sentence the question of considering its suspension does not arise. We do not agree. It is only when Court of Session passes a sentence of death, the proceedings are submitted to the High Court and as provided' in. Section 366(1) of the Code the said sentence cannot be executed unless it is confirmed by the High Court- In case order for sentence of death is not passed by the Court of Session the question of its confirmation by the High Court would not arise. Reliance was, however, placed by Mr. Handa on the observations of Supreme Court in the Constitution Bench decision in Smt. Triveniben' Vs. State of Gujarat, AIR 1989 SC 1335(1). that :