While sending out a very loud, emphatic and clear message to all the Trial Courts, the Patna High Court in a most pragmatic, progressive and pertinent judgment titled Shivjag Paswan vs The State of Bihar in Criminal Revision No. 176 of 2023 (arising out of PS. Case No.-314 Year-2010 Thana- DINARA District- Rohtas) and cited in 2023 LiveLaw (Pat) 125 that was pronounced as recently as on September 14, 2023 has ruled most decisively that after the District Appellate Court affirms the judgment of conviction and issues the sentence order, the Trial Court does not have the authority to grant bail to the convicted individuals under Section 389 of CrPC.
It must be mentioned here that the Single Judge Bench comprising of Hon’ble Mr Justice Anil Kumar Sinha added that while the Trial Court is empowered to suspend the sentence and grant bail if it is satisfied that the convicted person intends to present an appeal against the conviction and sentence, this power is limited to the appeal process. Very rightly so!
It must be mentioned here that the Court underscored that as per Section 389 Sub-Section (1) of the Criminal Procedure Code, the Appellate Court has the power to suspend a sentence while an appeal is pending and allow the Appellant to be released on bail. But the Court noted that there is no provision in the CrPC that permits the District Appellate Court to grant bail after an appeal has been concluded and the conviction and sentence have been confirmed. No denying it.
At the very outset, this learned, laudable, landmark and latest judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Anil Kumar Sinha of Patna High Court sets the ball in motion by first and foremost putting forth in para 1 that:
The present revision application has been preferred by the petitioners against judgment dated 17.08.2022 passed in Cr. Appeal No. 16/2016 by learned Additional Sessions Judge-16, Sasaram, Rohtas affirming the judgment of conviction and order of sentence dated 03.03.2016 passed by Sub-Divisional Judicial Magistrate, Bikramganj, Rohtas in GR No. 1323/10/Trial No. 820/2016 whereby all the petitioners have been sentenced to undergo SI for a period of two years for the offence punishable under Sections 379 IPC. They are also sentenced to undergo SI for a period of one year for the offence punishable under Section 147 IPC as well as further sentenced to undergo SI for a period of three months for the offence punishable under Section 447 IPC directing the sentences to run concurrently.
As we see, the Bench then specifies in para 2 that:
It is an admitted position that the petitioners have not surrendered after affirmance of judgment of conviction and order of sentence by the District Appellate Court. The present revision application has been filed without attaching/annexing the surrender certificate of the petitioners as required under Rules of the High Court at Patna (hereinafter referred to as the ‘PHC Rules’).
As it turned out, the Bench then stipulates in para 5 that:
On the basis of the submissions advanced on behalf of the parties, three questions arise for determination by this Court which are as follows:
- whether the trial court is empowered to grant bail to the convicted persons after the judgment of conviction and order of sentence has been affirmed by the District Appellate Court?
- whether the District Appellate Court can suspend the sentence and grant bail after the judgment of conviction and order of sentence passed by the trial court has been affirmed by it ?
- whether as per Rule 57A of PHC Rules, the revisionist/petitioner has to surrender to custody in the concerned court before the revision petition is posted ‘for admission’?
Needless to say, the Bench states in para 7 that:
Upon perusal of Section 389 CrPC, it could be said that Section 389(1) empowers the appellate court for reasons to be recorded in writing to suspend the execution of the sentence or order appealed against and if the appellant is in confinement he can be released on bail.
Do note, the Bench notes in para 8 that:
Section 389(3) says where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the trial court may suspend the sentence and release the convicted person on bail for such period to enable him to present an appeal and seek orders of the appellate court under Sub Section (1) of Section 389 CrPC for suspension of sentence and for release on bail.
Be it noted, the Bench notes in para 9 that:
Thus, it is clear that power under Section 389(3) can be exercised by the trial court if the court is satisfied that the convicted person intends to present an appeal against conviction and sentence. Learned counsel for the petitioners could not place any other provision in the Code of Criminal Procedure under which the trial court can suspend the sentence and grant bail after the judgment of conviction and order of sentence passed by the learned trial court has been affirmed by the District appellate court and the records have been sent back to the trial court.
Most forthrightly and as a corollary, the Bench mandates in para 10 propounding that:
In view of the aforesaid discussions, question no. (i) is answered in negative holding that the trial court is not empowered to grant bail to the convicted person after the judgment of conviction and order of sentence passed by the trial court has been affirmed by the District Appellate Court.
It is worth noting that the Bench then succinctly notes in para 11 that, Insofar as question no. (ii) is concerned, the power of the appellate court for suspension of sentence pending appeal and for release of appellant on bail is defined in Section 389(1) of the CrPC. I could not find any provision in the Code of Criminal Procedure which empowers the District Appellate Court to suspend the sentence after judgment of conviction and order of sentence passed by the trial court has been affirmed by it and the appeal has been disposed.
There is also no provision in CrPC empowering the District Appellate Court to grant bail after disposal of appeal and confirmation of conviction and sentence to enable the appellant/convict to prefer revision application before the High Court and to obtain necessary orders.
Adding more to it, the Bench hastens to add in para 16 holding that:
Taking into consideration the aforesaid discussions and judgment rendered by the various High Courts and provisions contained in CrPC, in my considered opinion the power of suspension of sentence and grant of bail can only be exercised by the District Appellate Court if there is specific provision in this regard in CrPC. The District Appellate Court cannot grant bail after disposal of appeal by affirming the judgment of conviction and order of sentence.
Resultantly, the Bench expounds in para 17 holding that:
Accordingly, I arrive at the conclusion that once the District appellate court decides the appeal against the conviction and sentence passed by the trial court, it becomes functus officio and ceases to have any power in the matter to suspend the sentence, or grant bail for certain period to enable the accused to approach the High Court by filing revision application to obtain appropriate orders. Consequently, the question no.(ii) is answered in negative and it is held that District appellate court has got no power to suspend the sentence and grant bail after judgment of conviction and order of sentence passed by the trial court has been affirmed by it.
Quite significantly, the Bench then observes in para 18 that:
In order to answer third question, it is necessary to look into Rule 57 of PHC Rules which was inserted by C.S. No. 122 dated 23.09.1999. A question was raised earlier before the Hon’ble Supreme Court in the case of Bihari Prasad Singh v. State of Bihar reported in (2000) 10 SCC 346, as to whether the High Court while exercising its revisional jurisdiction can refuse to hear or entertain the matter on the ground that the accused has not surrendered.
The Supreme Court rendered the judgment upon this on 02.08.1999 holding that under provisions of Code of Criminal Procedure, there is no such requirement though many High Courts in this country have made such provision in the respective rules of the High Court. But there is no such rule in the Patna High Court Rules. In that view of the matter the High Court was not justified in rejecting the application for revision solely on the ground that the accused has not surrendered.
Finally, we see that the Bench then concludes by holding in para 24 that:
It is made clear that if the surrender certificate is not filed by the petitioners within the aforesaid period of four weeks, the instant revision application shall stand dismissed without further reference to the Bench.
All told, we thus see that the Patna High Court has made it indubitably clear that the Trial Court is just not empowered to grant bail after conviction and sentencing order has been affirmed by the District Appellate Court. So it is a no-brainer that all the Trial Courts must definitely pay heed to what the Patna High Court has held so very elegantly, eloquently and effectively in this leading case and comply with accordingly! No denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
