Bihari Prasad Singh @ Bihari Babu vs State and Another

S.N. Jha, J.—This Criminal Revision arises out of case No. 97(C)/87 Tr. No. 553/91 of the, Court of Shri Md. Akram Rizbi, Judicial Magistrate, 1st Class, Patna. The Trial Court convicted the Petitioner and sentenced him to undergo rigorous imprisonment for six months u/s 420 of the Indian Penal Code, by judgment and order dated 30.9.1991. The Court however, released him on provisional bail, on application filed in that behalf, to enable him to prefer appeal. The 2nd Additional Sessions Judge, Patna, who ultimately heard the appeal (Cr. Appeal No. 224/91) by his judgment and order dated 4.5.1998 did not find any error in the conviction and sentence and thus dismissed the appeal as not maintainable. The Petitioner has come in revision to this Court.

The only point for consideration at this stage is whether the Petitioner is required to surrender in the court below before his revision can be heand on merit.

According to Mr. Vyas Muni Singh, the bail granted by the court below not having been cancelled and the Petitioner being not in confinement, he cannot be compelled to surrender to custody. He pointed out that in terms of Section 397 of the Code of Criminal Procedure the revisional court can order for suspension of sentence only if the accused is in confinement, and having regard to the fact that the appellate order is too cryptic warranting fresh consideration of the appeal on merit, this Court should not insist on the Petitioner''s surrender at this stage. According to the counsel, there is no law under which an accused can be compelled to surrender before his revision against the order of conviction and sentence can be considered; it is only a rule of practice.

He placed reliance on decisions of Kerala High Court reported in 1979 Kerala Law Times 857 and Sikkim High Court in O.P. Singhi v. State of Sikkim, 1978 Cr. L. J. 1560.

At this stage itself, I may mention that although reference was made to the aforesaid Kerala decision, counsel did not produce the decision in course of hearing. In response to my query, he stated that he had gone through the judgment in the Judges Library. Curiously, on requisition, the Library reported that High Court does not subscribe to Kerala Law Times and the Report was not available.

Under the circumstances, in the absence of the facts of that case, it is not possible to make any observation as to the applicability or otherwise of the above said decision. I shall refer to the other decision of the Sikkim High Court decision later in this order.

The first thing that deserves to be pointed out is that while the trial court has power to grant provisional bail u/s 389(3) Code of Criminal Procedure to enable the accused convict to prefer appeal against the conviction and sentence, there is no corresponding provision for such provisional bail by the appellate court. The reason is obvious. While the judgment by the trial Court is to be pronounced in presence of the accused persons whether in custody or on bail u/s 353 of the Code of Criminal Procedure, there is no such provision for the presence of the accused at the time of pronouncement of the judgment by the appellate court.

At this stage the provisions of Subsections (1) and (3) of Section 389 Code of Criminal Procedure may be quoted as hereunder:

389: Suspension of sentence pending in 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.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall

... ... ...

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.

from a bare perusal of the above said provisions it would be evident that the provisional bail u/s 389(3) is granted to the accused convict for specific object and for definite period until presentation of appeal before the appellate court. After the appeal is presented it is for the Appellate Court to pass appropriate order u/s 389(1). Where bail is granted by the appellate Court under the said provision, the Appellant is entitled to its privileges but only until disposal of the appeal. The fact that the appellate court does not pass any formal order, which it should normally pass, is of no consequence and the Appellant cannot take the advantage of any such omission on the part of the Appellate Court. The words "and may, when calling for such record, direct that...and if the accused is in confinement, that he be released on bail", upon which emphasis was laid by the counsel, in my opinion, merely mean that the revisional court has power to release the accused on bail during the pendency of the revision. The Revisional Court may not in the facts of a particular case pass such order. The quoted words therefore, do not imply that the power to release the accused on bail, can be exercised only if he is in confinement. It needs hardly be emphasised that the revisional power u/s 397 read with Section 401 Code of Criminal Procedure is to be exercised not only in matters arising out of conviction and sentence but in several other matters, where the person, concerned may not be in confinement, such as orders passed in proceedings u/s 125 or Section 145 Code of Criminal Procedure In such cases there is no question of release of the person on bail, only the order is required to be suspended. In cases arising out of conviction and sentence, unless the convict is in custody, there is no question of releasing him on bail. In my considered opinion, the words if the accused is in confinement do not imply that there is any discretion for the accused or, for that matter, the Court in the matter of surrender after the appeal is dismissed.

Section 397 contemplates the general power of the Revisional Court to call for the records and to pass interim orders. The actual powers of the Revisional Court are enumerated in Section 401, therefore, in Revision against the orders of conviction and sentence, while calling for the records, that is, admitting the revision, the Revisional Court may in its discretion, either direct the suspension of execution of any sentence or order or release of the accused on bail, if he is in confinement.

The decision of U.P. Singh v. State of Sikkim is of no avail to the Petitioner. In that case, the. Petitioner had challenged the initial order of the Magistrate issuing processes against him and the point for consideration was whether he should be compelled to surrender in response to the processes. That was not a case of post-conviction surrender. The facts of the case being totally different, I wonder how any observation made in that case can be of any help to the Petitioner in the present case.

In these premises I would reject the contention of the counsel for the Petitioner and allow three weeks'' time to the Petitioner to surrender in the trial court and file authentic proof of such surrender in the court failing which this application shall stand rejected without further reference to a Bench.