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12.However, admittedly, in all these cases, appeals are pending before this Court. When appeals are pending, normally, suspension of sentence is granted by the Appellate Court under Section 389 Cr.P.C./Section 430 BNSS. However, there is a common misconception regarding the expression “suspension of sentence”, since it occurs both in Section 389 Cr.P.C./Section 430 BNSS and Section 432 Cr.P.C./Section 473 BNSS. Under Section 389 Cr.P.C./Section 430 BNSS, the sentence is suspended by the Appellate Court. What is suspended is the “execution of the sentence or order appealed against”. It is for this reason, the accused is released on bail, since he continues to remain in the Court custody. Whereas, under Section 432 Cr.P.C./Section 473 BNSS, what is suspended is the “execution of the https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch sentence” and this power is exercised by the appropriate Government and not the Court, since by this stage, the accused is not in the custody of the Court at all, since sentence has already reached finality.

“8.In K.M.Nanavati, the core ratio laid therein was so long as the judiciary has the power to pass an order, the Executive functioning in the same field at the same time will lead to possibility of a conflict of a jurisdiction. In this background, the Hon'ble Supreme Court had held that while Section 389 CrPC deals with power to suspend the sentence when an appeal is pending before an Appellate Court, Section 432 CrPC deals with the remainder of the period after conviction. In other words, the power under Section 432 CrPC can be exercised by the Executive at any time, but will not lead to the inference that such powers can also be exercised while the Court is seized of the same matter under Section 389 CrPC.” Having followed the said judgment, the Division Bench has also held that “there can be no second opinion that the aforesaid ratio in Nanavati's case requires to be applied in all cases, where suspension of sentence is sought for either under Section 389 Cr.P.C. or Section 432 Cr.P.C., as the case may be.” Further, the Division Bench in Para No.9, held as follows :

20.It is relevant to note that the Division Bench in Latha's case has come to a conclusion that the Suspension of Sentence Rules is intended only for grant of emergency leave and ordinary leave; therefore, it is applicable to the prisoners whose appeal is also pending. It is also relevant to note that, as stated above, the very preamble of Tamil Nadu Suspension of Sentence Rules, 1982, makes it clear that it has been framed in exercise of powers under Section 432(5) of Code of Criminal Procedure, 1973. Section 432 Cr.P.C. deals with the power of the Executive to suspend or remit the sentence by the Executive. This power is exercised by the Executive in the name of Governor. Therefore, when the Rules themselves are framed under Section 432 Cr.P.C. to grant leave or ordinary leave after sentence has been finally fixed by the Appellate Court/Revisional Court, we are of the definite opinion that, when appeals are pending, i.e., when sentence is not finally fixed by the Appellate Court/Revisional Court, only the Courts have the power to suspend the execution of the sentence either under Section 389 Cr.P.C. or Section 430 BNSS.

It is, therefore, clear that remission can be granted only with reference to an operative punishment. In other words, when there is no operative punishment, there is no need to remit any part of such punishment.

23.Admittedly, the Suspension of Sentence Rules has been enacted under Section 432(5) Cr.P.C. The Division Bench in Latha's case referred above has itself observed in Para No.8 that “there can be no second opinion that the aforesaid ratio in K.M.Nanavati requires to be applied in all cases, where “suspension of sentence” is sought for either under Section 389 CrPC or Section 432 CrPC, as the case may be.” https://www.mhc.tn.gov.in/judis ( Uploaded on: 19/11/2025 06:53:48 pm ) W.P.(Crl.) No.722 of 2025, etc. batch