Section 389 CrPC: Suspension of sentence pending the appeal; release of appellant on bail
Code of Criminal Procedure, 1973
Section 389 CrPC at a Glance
Section 389 CrPC deals with suspension of sentence pending the appeal; release of appellant on bail. From 1 July 2024 it is replaced by Section 430 BNSS.
What Section 389 CrPC Says
389. Suspension of sentence pending the appeal; release of appellant on bail
(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond:
Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:
Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.
(2) 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.
(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,—
(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.
Source: Section 389, Code of Criminal Procedure, 1973
Section 389 CrPC in Simple Words
Section 389 of the Code of Criminal Procedure, 1973 deals with the suspension of a sentence while an appeal by a convicted person is pending, and with the release of the appellant on bail. While such an appeal is pending, the Appellate Court may order that the execution of the sentence or order appealed against be suspended. The Appellate Court must record its reasons in writing. If the appellant is in confinement, the Appellate Court may also order release on bail or on the appellant's own bond. The first proviso applies where the convicted person is convicted of an offence punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years. Before releasing such a person on bail or on the person's own bond, the Appellate Court shall give the Public Prosecutor an opportunity to show cause in writing against the release.
Under the second proviso, where a convicted person is released on bail, it is open to the Public Prosecutor to file an application for cancellation of the bail. Under Section 389(2) CrPC, the High Court may also exercise this power of an Appellate Court in the case of an appeal by a convicted person to a Court subordinate to the High Court. Section 389(3) CrPC applies where the convicted person satisfies the Court that convicted the person that the person intends to present an appeal. The convicting Court shall then order release on bail, unless there are special reasons for refusing bail, in the cases that follow. In the first case, the person is on bail and is sentenced to imprisonment for a term not exceeding three years. In the second case, the offence of which the person has been convicted is a bailable one, and the person is on bail.
The release is for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under Section 389(1) CrPC. So long as the person is released on bail in this way, the sentence of imprisonment shall be deemed to be suspended. Under Section 389(4) CrPC, the appellant may ultimately be sentenced to imprisonment for a term or for life. In that event, the time during which the appellant is so released shall be excluded in computing the term of that sentence.
When Section 389 CrPC Applies
- While an appeal by a convicted person is pending, the Appellate Court may record its reasons in writing to suspend the execution of the sentence or order and release a confined appellant on bail or on personal bond under Section 389(1) of the Code of Criminal Procedure, 1973.
- When the conviction is for an offence punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years, the Appellate Court shall give the Public Prosecutor an opportunity to show cause in writing against such release before releasing the convicted person on bail or on personal bond.
- Once a convicted person has been released on bail under Section 389(1) CrPC, the Public Prosecutor may apply to have that bail cancelled.
- The High Court may also exercise the suspension and release powers of an Appellate Court under Section 389(2) CrPC when a convicted person appeals to a Court subordinate to the High Court.
- When a convicted person who is already on bail satisfies the convicting Court of an intention to appeal, and either the prison sentence does not exceed three years or the offence is bailable, the convicting Court shall order release on bail unless there are special reasons for refusing bail.
Time Limits Under Section 389 CrPC
- Bail granted by the convicting Court under Section 389(3) of the Code of Criminal Procedure, 1973 runs for a period that gives the convicted person sufficient time to file the appeal and obtain orders from the Appellate Court under Section 389(1) CrPC, during which the prison sentence is deemed suspended.Act text: “for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court”
- If the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the period spent out of custody on bail or bond under Section 389 CrPC shall be left out when calculating the total term of imprisonment served.Act text: “the time during which he is so released shall be excluded in computing the term for which he is so sentenced”
Example of Section 389 CrPC
When Section 389 CrPC Does Not Apply
- An Appellate Court cannot suspend a sentence or order release under Section 389(1) of the Code of Criminal Procedure, 1973 when no appeal by a convicted person is pending.
- The convicting Court cannot grant bail under Section 389(3) CrPC if the convicted person was not on bail, if the person fails to satisfy the Court of an intention to present an appeal, or if a non-bailable conviction carries imprisonment exceeding three years.
- Even when a convicted person on bail intends to appeal a bailable offence or a sentence of imprisonment not exceeding three years, the convicting Court does not release the person on bail under Section 389(3) CrPC if there are special reasons for refusing bail.
Section 389 CrPC Under BNSS 430: What Changed
Section 389 CrPC is now covered under Section 430 BNSS.
Section 389 of the Code of Criminal Procedure, 1973 became Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023 from 1 July 2024 with only changes of form. Section 430(1) BNSS adds release on bail bond alongside personal bond, and its first proviso refers to release on personal bond or bail bond instead of release on bail or personal bond. This is a change of form because Section 2(1)(e) BNSS defines a bond as an undertaking for release without surety and Section 2(1)(d) BNSS defines a bail bond as an undertaking for release with surety. The remaining sub-sections are unchanged.
View detailed comparison (CrPC 389 vs BNSS 430) →FAQs on Section 389 CrPC
When must the Appellate Court hear the Public Prosecutor before granting bail under Section 389 CrPC?▼
The first proviso to Section 389(1) of the Code of Criminal Procedure, 1973 applies where the conviction is for an offence punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years. Before releasing such a person on bail or on personal bond, the Appellate Court shall give the Public Prosecutor an opportunity to show cause in writing against release. Once released on bail, the Public Prosecutor may also apply for cancellation of the bail.
Can the convicting Court itself grant bail after pronouncing a conviction under Section 389 CrPC?▼
Yes, Section 389(3) of the Code of Criminal Procedure, 1973 requires the convicting Court to order release on bail if the convicted person satisfies the Court of an intention to present an appeal and the statutory conditions are met. The person must already be on bail, and either the sentence of imprisonment does not exceed three years or the offence is bailable. Unless there are special reasons for refusing bail, the Court grants bail for sufficient time to appeal, and the sentence is deemed suspended during that release.
Does the time spent on bail during an appeal count towards serving the prison sentence under Section 389 CrPC?▼
No, time spent out of confinement under Section 389(4) of the Code of Criminal Procedure, 1973 does not count towards the prison sentence. When an appellant who was released on bail or on personal bond pending the appeal is ultimately sentenced to imprisonment for a term or to imprisonment for life, the period during which the appellant remained released shall be excluded when computing the term of imprisonment for which the appellant is sentenced.
Can the High Court exercise powers under Section 389 CrPC when the appeal lies to a subordinate Court?▼
Yes, Section 389(2) of the Code of Criminal Procedure, 1973 allows the High Court to exercise the same power conferred on an Appellate Court under Section 389 CrPC even when the appeal by the convicted person is made to a Court subordinate to the High Court. In such a case, the High Court may record reasons in writing to suspend the execution of the sentence or order appealed against and release a confined appellant on bail or on personal bond.
Where is Section 389 CrPC found from 1 July 2024?▼
The Code of Criminal Procedure, 1973 was replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 from 1 July 2024. The provision governing suspension of sentence pending appeal and release of the appellant on bail is found in Section 430 BNSS. More specifically, Section 389(1) CrPC corresponds to Section 430(1) BNSS, while Section 389(2) CrPC, Section 389(3) CrPC, and Section 389(4) CrPC correspond to Section 430(2) BNSS, Section 430(3) BNSS, and Section 430(4) BNSS.
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Sources: Bare Act Text, Code of Criminal Procedure, 1973 · Last updated: 27 Oct 2026 ·