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K.M. Salim Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1986CriLJ1197
AppellantK.M. Salim
RespondentState of Kerala
Cases ReferredK. M. Nanavati v. State of Bombay
Excerpt:
- - he appealed to this court without success. that power can be exercised only when a sentence of death is passed or confirmed and the high court is satisfied that the person sentenced intends to move the supreme court. the phraseology in section 389 of the new code slightly different from section 426(2a) of the old code, has only defined more clearly the statutory limits for suspension of sentence......only when a sentence of death is passed or confirmed and the high court is satisfied that the person sentenced intends to move the supreme court. no such provision is made in section 389. it is, therefore, clear that section 389 cannot apply to any case where the person concerned only intends to file an application for special leave under article 136.7. in the present case the petitioner has already filed an application before the supreme court for special leave. we are told that it has not yet been brought up for hearing. when once the supreme court is thus seized of the matter, the power to suspend the sentence cannot be exercised by this court. the proceedings then are governed by the provisions of the rules framed by the supreme court contained in 0. xxi (6) of the supreme court.....
Judgment:

V. Bhaskaran Nambiar, J.

1. Can a sentence imposed on an accused and confirmed in appeal by the High Court be suspended when the accused intends to file an application for special leave before the Supreme Court? This is the short question that arises for determination and thus the scope of Section 389(3) of the Criminal P.C. falls for consideration.

2. The petitioner was convicted under Section 5(1)(d) of the Prevention of Corruption Act and Section 120-B of the Penal Code. He was sentenced to a term of imprisonment and was also directed to pay fine. He appealed to this Court without success. The conviction and sentence are confirmed. He stated that he was intending to file an application for special leave before the Supreme Court and the sentence may be suspended. Subsequently he has filed the special leave application before the Supreme Court. He, therefore, prays that the sentence be suspended till orders are issued by the Supreme Court and states that, in his present condition, after he has undergone a major operation in Jaslok Hospital, Bombay, if he is compelled to serve the sentence, his life itself may be in danger. He also prays that he may be enlarged on bail. He invokes jurisdiction under Section 482 of the Criminal P.C. also.

3. A learned Judge of this Court made a reference to a Division Bench stating thus :

In an unreported decision rendered by a single Judge of this Court in Crl. M.P. No. 796 of 1981 in Crl. Appeal No. 49 of 1979, it was held:

All the same in view of the change in language in Section 389(3) from the corresponding provision in the old Code in Section 426(2A) even when the accused who has been convicted is proposing to file an appeal, which need not be entertained as of right, the Court could grant bail. In my opinion this aspect of the matter requires consideration by a Division Bench. Therefore, under Section 3 of the High Court Act the papers are directed to be placed before the Hon'ble Chief Justice for having the matter referred to a Division Bench.

4. Section 389 of the Criminal Procedure Code reads thus :

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.

5. Section 389 of the Code enables the suspension of sentence pending appeal and the release of the accused on bail. The appellate court can for reasons to be recorded in writing, order that the execution of the sentence is suspended and if he is in confinement he be released on bail. If the appeal lies to a Subordinate court, the High Court may even then, exercise this power. When the convicted person satisfies the trial court that he intends to present an appeal, the trial court is empowered in certain specific cases to release the convicted person on bail and to suspend the sentence. Section 389 therefore postulates a right of appeal to the convicted person and the power of the appellate court to suspend sentence arises and that of the trial court ceases when the appeal is filed. When the High Court, in appeal, confirms the sentence, there is no further appeal to the Supreme Court except as specifically provided in Article 134 of the Constitution. When there is no appeal as of right, Section 389 has no application.

6. It is only Article 134 of the Constitution that provides for appeal as of right in criminal matters to the Supreme Court. In those cases, postponement of execution of sentence by the High Court is provided for in Section 415 of the Code. Section 415(3) also provides the circumstance under which the execution of sentence can be suspended where a person 'intends to present a petition to the Supreme Court' under Article 136 of the Constitution. That power can be exercised only when a sentence of death is passed or confirmed and the High Court is satisfied that the person sentenced intends to move the Supreme Court. No such provision is made in Section 389. It is, therefore, clear that Section 389 cannot apply to any case where the person concerned only intends to file an application for special leave under Article 136.

7. In the present case the petitioner has already filed an application before the Supreme Court for special leave. We are told that it has not yet been brought up for hearing. When once the Supreme Court is thus seized of the matter, the power to suspend the sentence cannot be exercised by this Court. The proceedings then are governed by the provisions of the rules framed by the Supreme Court contained in 0. XXI (6) of the Supreme Court Rules.

8. Moreover, in K. M. Nanavati v. State of Bombay : 1961CriLJ173 , on the question as to whether the Governor can grant pardon when the matter was pending before the Supreme Court, the Supreme Court observed thus :

Where the Governor in exercise of his powers under Article 161 had passed an order granting suspension of the sentence on a convict on the ground that he intended to file an appeal before the Supreme Court the order could only operate until the matter became sub-judice in the Supreme Court on the filing of the petition for special leave to appeal. After the filing of such a petition it would be for the Supreme Court, when moved in that behalf, either to apply Rule 5 of Order XXI or to exempt the petitioner from the operation of that rule. It would be for the Supreme Court to pass such orders as it thought fit as to whether the petitioner should be granted bail or should surrender to his sentence or to pass such other or further orders as it might deem fit in all the circumstances of the case

9. This court has thus no jurisdiction to suspend the sentence pending an application for special leave to appeal to the Supreme Court, after having confirmed the sentence in appeal. The inherent powers under Section 482 of the Code are not intended to confer jurisdiction when there is none, but are meant to be invoked in the larger interests of justice while acting within the jurisdictional walls of the Code itself. The phraseology in Section 389 of the new Code slightly different from Section 426(2A) of the old Code, has only defined more clearly the statutory limits for suspension of sentence.

This application has thus no merits. It is dismissed. No costs.


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