Subramonian Poti, A.C.J:— This petition to enlarge the petitioners on bail pending disposal of the appeal before this court has been referred by a Division Bench of this Court for hearing by Full Bench as the Division Bench doubted the correctness of the decision in Rajan v. State of Kerala, 1981 KLT 285. The petitioners have been convicted by the Sessions Judge, Trichur in Sessions Case No. 77 of 1981. The petitioners 1 and 2 have been sentenced to undergo life imprisonment for an offence punishable under S. 302 read with S. 34 of the Indian Penal Code and the 3rd petitioner has been convicted under S. 448 of the Indian Penal Code and sentenced to undergo simple imprisonment for 3 months. The 3rd petitioner has been granted bail by order dated 4-3-1982, and therefore we are concerned only with the motion for bail by petitioners 1 and 2. The petitioners were on bail during the trial. It is the case of the petitioners that the right to be enlarged on bail should not be adjudicated on the basis of the approach made in the decision in Rajan v. State of Kerala 1981 KLT. 285.

2. Counsel for the petitioners Sri. P.V Aiyappan drew our attention to certain observations made in paragraph 9 of the judgment in Rajan v. State of Kerala and urged that, if these observations are allowed to stand, in every case where there is a conviction and sentence of life imprisonment a motion for bail would be a mere formality, as that would necessarily be rejected on the premises that once a person is convicted be must be found to be prima facie guilty of commission of an offence punishable with imprisonment for life and that would be sufficient to dismiss the plea for bail. Power is conferred on an appellate Court by S. 389 of the Code of Criminal Procedure to order suspension of the execution of the sentence appealed against and if the accused be in confinement to release him on bailor on his own bond. Under sub-section (2) of the section the power conferred 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. Under sub-section (1) the suspension of the execution of sentence and release on bail roust be ordered for reasons to be recorded by the court in writing. What those reasons could be is not specified in the section. S. 436 deals with bail in bailable offences. S. 437 deals with bail in case of non-bailable offences. S. 439 concerns special powers of High Court or Court of Sessions regarding bail. These are the provisions with which we are directly concerned in this case. S. 436(1) expressly excludes the High Court or a court of Sessions from its scope. It limits the power of the court to release a person accused of or suspected of commission of a non-bailable offence. The court is not empowered to release such a person if there is reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life. S. 439 which confers power on a High Court or a court of Sessions to release a person on bail enables the court to direct such release without any limitations as in the case of a court directing release under S. 437(1). In other words on the terms of S. 439(1) there is no prohibition in the High Court or court of Sessions in releasing a person accused of or a person suspected of the commission of a non-bailable offence merely because there is reasonable ground for believing that the person has been guilty of an offence punishable with death or imprisonment for life. This essential distinction notwithstanding, a practice has grown up where persons accused of or suspected of commission of offences punishable with death or imprisonment for life are not generally released on bail even by the court of Sessions or the High Court. But that does not mean that the High Court has no jurisdiction to order release under S. 439(1) merely because a person is accused of an offence punishable with death or imprisonment for life or that the only question that the court has to consider in an application under that provision is whether there is reasonable ground for belief. We do not think that elaboration of this Rule is necessary since the essential distinction between the two Sections has been subject of rather elaborate consideration of the Supreme Court in Gurucharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118 : AIR. 1978 SC. 179. Dealing with S. 437(1) the court said thus:

“S. 437, Cr. P.C is concerned only with the Court of Magistrate. It expressly excluded the High Court and the Court of Session.”

3. Referring to S. 439(1) the court said in paragraph 24 of its judgment thus:

“S. 439(1), Cr. P.C of the new Code, on the other band, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under S. 437(1) there is no ban imposed under S. 439(1), Cr. P.C against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under S. 439(1), Cr. P.C of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of S. 437(1) and S. 439(1), Cr. P.C of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out”.

4. While the discretion of a court functioning under S. 437 is necessarily limited by the provisions of the Section the considerations which weigh with a court dealing with an application for bail under S. 439(1) would be many. It may not be possible to exhaust the different factors that may be of relevance in assessing the question whether bail could be granted in a given case. These may vary from case to case. Even the weight of the several factors which are usually taken into account for determining whether bail should be granted or not must vary from case to case. The nature and gravity of the circumstances in which the offence is committed, the position and status of the accused with reference to the victim and the witnesses, the likelihood of the accused fleeing from justice, of repeating the offence, of jeopardising his own life being faced with the grim prospect of possible conviction in the case and of tampering with the witnesses are matters which have nexus to the consideration of the bail application (Vide Gurucharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118 : AIR. 1978 SC. 179).

5. The graver the offence the heavier the punishment. A person having reason to believe that a very severe punishment is likely to be imposed on him may have an incentive to jump bail unlike a person who has been accused of a crime, the punishment for which may not be heavy or a person who may think that there may not be any likelihood of punishment however serious the charge may be. One of the main factors which should deter the court from granting bail, particularly in a case where a person is accused of an offence punishable with death or life imprisonment is the prospect of his fleeing from justice, forfeiting the bail bond. This is particularly so when the accused have been convicted and the bail is moved pending the appeal. The question of tampering with the evidence may not arise at that stage. It would be too much of a gamble to order bail as a matter of course in a case where a person has been convicted of an offence punishable with life imprisonment unless it be that regard being had to various factors the court feels that the accused is not likely to flee from justice.

6. In the case before the Supreme Court in Narasimhulu v. Public Prosecutor, A.P, (1978) 1 SCC 240 : AIR. 1978 S.C 429. the accused was acquitted by the Sessions Judge. But the High Court reversed the decision and the matter was taken by the accused in appeal to the Supreme Court. The accused sought enlargement on bail. Referring to the principle concerning the release on bail the court said in that case:—

“We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case.”

7. The accused were granted bail despite the fact that they had the conviction by the High Court against them. The court was persuaded to do so by reason of the fact that the accused had enjoyed the benefit of an intermediate acquittal. The nexus of such acquittal to the release on bail is indicated by Krishna Iyer J. thus:

“The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the court's verdict once. Concurrent holdings of guilt have the opposite effect.”

8. The learned Judge speaking for the Court reiterated the same principle again in Babu Singh v. State of U.P, (1978) 1 SCC 579 : AIR. 1978 SC. 527.

9. Krishna Iyer J. in Babu Singh v. State of U.P, (1978) 1 SCC 579 : AIR. 1978 SC. 527 referred to another cireumstance which would tip the scales of justice in favour of releasing on bail pendente lite. The thought expressed by justice Bhagwati on this question in Kashmira Singh v. State Of Punjab, (1977) 4 SCC 291 : AIR. 1977 SC. 2147 at 2148 was noticed by the learned Judge in that context. Justice Bhagwati referring to the practice in regard to the bail in cases where a person has been sentenced to life imprisonment for an offence under S. 302 of the Indian Penal Code found that there may be circumstances which justify departure from the practice and one such circumstance which the learned Judge dealt with in that case was that of the court being unable to dispose of the appeal within a reasonable time.

10. We find no warrant for any dogmatic approach that when once a person accused of an offence under S. 302 of the Indian Penal Code has been convicted and sentenced to life imprisonment the appellate court is not to enlarge the accused on bail pendente lite. To state the proposition in such categorical terms would be to self impose a restriction on the exercise of power by the appellate court under S. 389 read with S. 439(1) of the Code of Criminal Procedure. That will be to read into the power of the High Court a limitation not warranted by the provisions of the Criminal Procedure Code. After referring to the decisions of the Supreme Court in Narasimhulu v. Public Prosecutor, A.P, (1978) 1 SCC 240 : AIR. 1978 SC. 429; Babu Singh v. State of U.P, (1978) 1 SCC 579 : AIR. 1978 SC. 527; Kashmira Singh v. State Of Punjab, (1977) 4 SCC 291 : AIR. 1977 SC. 2147 and Gurucharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118 : AIR. 1978 SC. 179, the learned Judges of the Division Bench in Rajan v. State, 1981 KLT. 285 concluded thus:

“It follows that in disposing of an application for bail the High Court and the Court of Sessions are obliged to consider whether there are reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life. If that be so, the identical consideration should weigh with the High Court in the matter of suspension of sentence and grant of bail after the accused is found guilty of an offence punishable with death or imprisonment for life and is convicted for such an offence. It is true that S. 389 does not specify the grounds on which suspension of sentence can be allowed. But the very fact that the Section directs that reasons should be stated before suspension is allowed shows that suspension of sentence is not to be taken as a matter of course. Considerations which should weigh with the Court in the matter of granting bail pending trial should mutatis mutandis apply and should not be ignored while disposing of an application for suspension of sentence after a conviction is entered. In a case where the Sessions Judge has after taking evidence entered a conviction for murder, it should not be assumed that there are no reasonable grounds for believing that the accused hag been guilty of an offence punishable with death or imprisonment for life. The presumption should be otherwise.”

11. It is the idea conveyed in the last two sentences of the passage quoted that is seriously objected to by learned counsel for the petitioners Sri P.V Aiyappan. May be in considering the possibility of the accused jumping bail the question whether there is reasonable ground to believe that the accused bad committed a serious crime is relevant. It is in that view that the High Court takes note of this circumstance under S. 439(1) of the Code. If either because the evidence is so meagre that the accused is not likely to take the risk of jumping bail anticipating conviction in appeal or there are other reasons why on the facts of a case the court could form the opinion that the accused would not jump bail, if released, then bail may be granted unless it be that the court may have reason to believe that the release of the accused may be of danger to others or to himself or he may cause self-effacement. In determining whether there are reasonable grounds for believing that the accused has committed an offence punishable with death or life imprisonment the court looks into materials then available to it, whether it be at the stage of investigation or at the stage of trial. Such would be the case even in the appeal. Merely because the appeal is against a conviction there should not be a presumption that the accused has committed the offence as that would be to foreclose on the plea of the accused that on the materials available there is no justification to refuse bail. Inasmuch as the learned Judges of the Division Bench have categorically indicated that a presumption of existence of reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment would arise by reason of a conviction, we must respectfully disagree. That is not a correct statement of the law. To that extent the dictum laid down in the Division Bench decision requires to be read as modified. We are not going into the facts of the bail petition as we think it is appropriate that the Division Bench, which has referred the petition to a Full Bench only because of the question of the involved, deals with the petition. Therefore we direct reposting of the bail petition for final orders before the Division Bench.