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Abdulla Haji Vs. Food Inspector - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1986CriLJ1193
AppellantAbdulla Haji
RespondentFood Inspector
Excerpt:
.....high court may. 8. sub-section (2a) of section 426 of the old code had no application unless (1) a person convicted of a bailable offence had been sentenced to imprisonment and (2) 'an appeal lies from that sentence'.when a person so convicted and sentenced satisfied the court that he intended to present an appeal, the sentencing court could in its discretion, order that he be released on bail for a period sufficient to enable him to present an appeal. sub-section (2b) of section 426, on the other hand, was a specific power conferred exclusively on the high court to suspend the sentence and order the release of a person where he satisfied the court that he had been granted special leave to appeal to the supreme court. while sub-section (2a) of section 426 dealing with bailable offences..........any appeal by a convicted person to a court subordinate thereto.(2a) when any person other than a person convicted of a non-bailable offence is sentenced to imprisonment by a court, and an appeal lies from that sentence, the court may, if the convicted person satisfies the court that he intends to present an appeal, order that he be released on bail for a period sufficient in the opinion of the court to enable1 him to present the appeal and obtain the order. 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(2b) where a high court is satisfied that a convicted person has been granted special leave to appeal to the supreme court against any sentence which the high court has imposed or.....
Judgment:

T. Kochu Thommen, J.

1.This is a petition under Section 389 of the Cr. P.C. The petitioner had been charged for a bailable offence under the Prevention of Food Adulteration Act, 1954. He was acquitted by the learned Additional Judicial First Class Magistrate, Tellicherry. However, reversing the order of acquittal, this Court convicted the petitioner and sentenced him to imprisonment for a term of six months and to a fine of Rs. 1,000/-. The petitioner now seeks suspension of that sentence pending appeal to the Supreme Court.

2. Opposing the petition, counsel for the respondent Shri. K. J. Joseph submits that where a person is convicted by the High Court, a petition under Section 389 Cr. P.C. is not maintainable as there is no further right of appeal under the statute. This argument is supported by the Director of Public Prosecution whom we have heard on the construction of this Section.

3. Section 389 reads as follows:

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.

(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.

(Emphasis supplied)

Sub-section (1) confers power on the Appellate Court during the pendency of the appeal to order the suspension of the execution of the sentence and to release the accused on bail or on his own bond. Sub-section (2) says that the High Court has in this respect the same powers as an Appellate Court in the case of an appeal to a court subordinate to the High Court.

4. It is however Sub-section (3) on which reliance is placed on behalf of the petitioner. This sub-section deals with the power of the sentencing court to order the release of a convicted person on bail provided the conditions postulated are satisfied. The subsection is concerned only with a person who has been on bail during trial and has been either sentenced to imprisonment for a term not exceeding three years or convicted for a bailable offence. In either of the two classes of offences falling under clauses (i) and (ii) of the sub-section, the sentencing court is bound to order the release of the person on bail (unless there are special reasons for refusing bail) for such period as will afford him sufficient time to present an appeal and obtain the order of the Appellate Court for suspension of the execution of the sentence and release on bail or on his own bond as provided under Sub-section (1). For the period during which a person is so released on bail under Sub-section (3), the sentence of imprisonment passed against him shall be deemed to be suspended. It is however important to note that the operation of Sub-section (3) depends on the intention of the convicted person to present an appeal to the Appellate Court. When such intention is explicit and the court is satisfied as to its genuineness, the sentencing court must, in the absence of any special reason for refusing bail, order the release of the convicted person upon bail. The sub-section therefore confers no further discretion on the convicting court once the court has found that the conditions postulated in the sub-section are satisfied.

5. Sub-section (3) refers to the sentencing court. It could be either the trial court in the event of a conviction or an Appellate Court which reversed an acquittal and convicted the accused. Sub-section (3) thus confers the power as much on the subordinate court as on the High Court in the event of a conviction specifically referred to under clauses (i) and (ii), provided the convicted person has been on bail during trial.

6. It is however, contended by Shri Joseph and the Director of Public Prosecution that the sub-section has no application where the convicted person has no right of appeal. It is only where such a right is specially conferred by the statute, counsel point out, that the convicted person is entitled to say that he intends to present an appeal so as to warrant the operation of the sub-section. In the present case, they point out, the accused having been convicted by the High Court has no further right of appeal except by recourse to Article 136 of the Constitution for grant of special leave to appeal to the Supreme Court from the judgment of this Court. It is not therefore as a matter of right that the petitioner can present an appeal to the Supreme Court and, until such special leave is granted, the petitioner cannot be deemed to be a person who intends to present an appeal so as to attract the subsection. They draw our attention by way of contrast to Section 426 of the repealed Cr. P.C., 1898 (the 'Old Code'). This Section provided:

426. (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.

(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of any appeal by a convicted person to a Court subordinate thereto.

(2A) When any person other than a person convicted of a non-bailable offence is sentenced to imprisonment by a Court, and an appeal lies from that sentence, the Court may, if the convicted person satisfies the Court that he intends to present an appeal, order that he be released on bail for a period sufficient in the opinion of the Court to enable1 him to present the appeal and obtain the order. 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

(2B) Where a High Court is satisfied that a convicted person has been granted special leave to appeal to the Supreme court against any sentence which the High Court has imposed or maintained, the High Court may. if it so thinks fit, order that pending the appeal the sentence or order appealed against be suspended, and also, if such person is in confinement, that he be released on bail.

(3) When the appellant is ultimately sentenced to imprisonment, or imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

Sub-sections (1) and (2) of this Section are identical to Sub-sections (1) and (2) of Section 389 of the new Code. Sub-section (3) of this Section corresponds to Sub-section (4) of Section 389 of the New Code.

7. Sub-sections (2A) and (2B) of Section 426 of the old Code were concerned with the matters dealt with by Sub-section (3) of Section 389 of the New Code, although not identically. While Sub-section (3) of Section 389 deals with bailable and non-bailable offences, Sub-section (2A) of Section 426 referred to only bailable offences. It is Sub-section (2B) of that Section that referred to offences in general including non-bailable offences.

8. Sub-section (2A) of Section 426 of the Old Code had no application unless (1) a person convicted of a bailable offence had been sentenced to imprisonment and (2) 'an appeal lies from that sentence'. When a person so convicted and sentenced satisfied the court that he intended to present an appeal, the sentencing court could in its discretion, order that he be released on bail for a period sufficient to enable him to present an appeal. Sub-section (2B) of Section 426, on the other hand, was a specific power conferred exclusively on the High Court to suspend the sentence and order the release of a person where he satisfied the court that he had been granted special leave to appeal to the Supreme Court. This sub-section was equally applicable to bailable and non-bailable offences. Unlike Sub-section (3) of Section 389 of the New Code, the application of Sub-section (2B) of Section 426 of. the old Code was not, in the case of non-bailable offences, confined to sentences not exceeding tree years. Sub-section (2B) took in all sentences, whatever be the duration of the imprisonment, provided the person so sentenced had been granted special leave to appeal to the Supreme Court. These two sub-sections of Section 426 of the old Code are not pari materia with Sub-section (3) of Section 389 of the New Code, although these two sets of provisions deal with appeals from convictions for bailable and non-bailable offences.

9. Sub-section (3) of Section 389 of the New Code, unlike Sub-section (2A) of Section 426 of the Old Code, is not limited to a case where an appeal lies. While Sub-section (2A) of Section 426 dealing with bailable offences operated only when an appeal lay and the person convicted satisfied the court that he intended to present an appeal, Sub-section (3) of Section 389, which deals both with bailable and non-bailable offences (the sentence being in the case of the latter not longer than three years) specifically provides that the sub-section operates whenever the convicted person satisfies the sentencing court that he intends to present an appeal. This means that, under the New Code, in a case where the ingredients of the two clauses of Sub-section (3) of Section 389 are attracted, the sentencing court must, on being satisfied that the convicted person intends to present an appeal, order his release on bail. Unlike Sub-section (2B) of Section 426 of the Old Code, Sub-section (3) of Section 389 of the New Code is not confined to the High Court alone, for the power is conferred upon every sentencing court where the person convicted intends to present an appeal. Sub-section (2B) of Section 426 of the old Code was not attracted unless the person convicted had been granted special leave to appeal to the Supreme Court. On the other hand, there is no such restriction under Sub-section (3) of Section 389.

10. In other words, the present sub-section confers power on every sentencing court to enlarge a person on bail in respect of the specified offences whenever he satisfies the court that he intends to present an appeal. Such satisfaction is based on the facts of each case. If no appeal is provided under the statute and the court to which an appeal is sought to be brought has no power to grant special leave to appeal, or the time to file an appeal or seek special leave has expired, the sentencing court would refuse to exercise the power for want of proper satisfaction. On the other hand where the person sentenced satisfies the sentencing court that he intends to present an appeal by recourse to Article 136 of the Constitution for grant of special leave, the sentencing court, in the absence of any special reasons to refuse bail, must necessarily exercise its power under Sub-section (3), although there is no statutory right of appeal.

11. In this connection it is important to note that while the discretion conferred on the sentencing court under Sub-sections (2A) and (2B) of Section 426 of the Old Code was indeed wide, Sub-section (3) of Section 389 of New Code is mandatory where the ingredients of that subjection are attracted, except where there are special reasons for refusing bail. A comparison of these corresponding provisions of the Old Code and the New Code reveals the legislative intent to arm the Appellate Court with the power to release on bail, in appropriate cases, the convicted person during the pendency of an appeal and also to preserve the power of the convicting court to suspend the sentence for such period as will afford sufficient time to the person convicted to present an appeal and obtain appropriate orders of the Appellate Court. The special provisions of Sub-section (3) of Section 389 are, however, not applicable except in respect of short sentences in non-bailable offences or in respect of conviction for bailable offences. In all other cases, the accused seeking bail must necessarily approach the Appellate Court. The legislature has in its wisdom thus enacted Sub-section (3) for the protection of. persons convicted and sentenced for short periods, lest, where the period of sentence is as short as six months as in the present case, an appeal should become an exercise in futility; for by the time the necessary order of suspension of sentence has been obtained from the Appellate Court the period of sentence would itself have run out. This, in our view, is the legislative intent and the raison disetre of the provisions. To place a restricted meaning on the words of Sub-section (3) of Section 389 of the New Code, as the Director of Public Prosecution and Shri. Joseph would suggest, would be to defeat the very legislative object in enacting the sub-section.

12. As stated earlier, except where there are special reasons to refuse bail, Sub-section (3) of Section 389 of the New Code is mandatory. From the averments of the petitioner it is clear that he intends to present an appeal to the Supreme Court. These averments are not denied. The respondent has not shown that any special reason to refuse bail exists in the present case. Accordingly the sentence passed against the accused shall stand suspended for a period of three months from today and the accused shall be released on bail subject to his executing a bond for a sum of Rs. 1,000/- with two sureties in the like sum to the satisfaction of the trial court. The order shall be handed over to counsel for the petitioner.


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