1. The question to be decided in this petition is whether the revisional Court should, in all cases, insist upon the confinement of the accused before ordering suspension of sentence. The revision petitioner was an accused in C.C No. 3 of 1977 on the file of the Chief Judicial Magistrate, Trichur. He was convicted by the said Court for an offence under S. 304-A and sentenced to undergo rigorous imprisonment for two years for the offence under S. 304-A. This conviction was confirmed by the appellate Court, but the sentence was reduced to one year. He has filed this criminal miscellaneous petition to suspend the operation of the sentence. The question that falls for decision is whether it is necessary for the accused to surrender to his bail before the revisional Court suspends the sentence passed against him. For a decision on this point, it is necessary to refer to some of the sections in the Code of Criminal Procedure, hereinafter referred to as the Code, which detail the powers of the revisional Court, the appellate Court and the trial Court. Ss. 397, 399 and 401 of the Code deal with the powers of revision. Under S. 397, revisions can be filed both before the High Court and the Sessions Judge. The jurisdiction of the revisional Court to pass interim orders under S. 397(1) is as follows:
“(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.”
2. The words ‘direct that the execution of any sentence or order be suspended’ have to be read dis-conjunctively from the words ‘and if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record’. Suspension of the execution of any sentence or order postulates that the petitioner is not in confinement. This section gives jurisdiction to the revisional Court to suspend sentence even though the petitioner is not in confinement. The question of releasing him on bail arises only when he is in confinement. Therefore, when the accused in confinement makes an application for suspension of sentence or order, the Court should not only order suspension of the sentence or order but order his release on bail also. Not so, when he is not in confinement. This section clearly recognises the difference between a case where an accused is in confinement and when not in confinement. Thus, it will not be proper for the revisional Court to insist upon an accused to be remanded to confinement before his sentence can be suspended, for, that will be acting against the clear and express provisions contained in S. 397(1) of the code, quoted above, enabling the revisional Court to exercise the twin jurisdiction vested in it in cases were the accused is in confinement and not in confinement. The matter becomes clear when the other sections of the Code are also considered.
3. The appearance of the accused to hear the judgment pronounced in the trial Court is provided for in S. 353(5) and (6) of the Code, with the proviso. This section falls in Chapter XXVII of the Code. Under this section, it is mandatory that the accused, if in custody, should be brought up to hear the judgment before the trial Court, and if he is not in custody, he shall be required by the Court to be present to hear the judgment except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or that he is acquitted. This means that in cases where the presence of the accused is dispensed with but he is to be sentenced to a term of imprisonment, he should be present to hear the judgment. S. 387 deals with the procedure for securing the presence of the accused insubordinate appellate Court. S. 387 reads as follows:
“The rules contained in Chapter XXVII as to the judgment of a criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment in appeal of a Court of Session or Chief Judicial Magistrate:
Provided that, unless the appellate Court otherwise directs, the accused shall not be brought up or required to attend, to hear judgment delivered.”
4. Thus, S. 353 applies to the appellate Court also with the proviso read above. While under S. 353 an accused has necessarily to attend to hear the judgment except under circumstances mentioned in sub-clause (6), under the proviso to S. 387, the accused shall not be brought up or required to attend unless the appellate Court otherwise directs, to hear the judgment delivered. Therefore, if an accused is in custody, the appellate Court has to direct that the accused, her brought up to hear the judgment or direct the accused, who is not in custody, to attend to hear the judgment. In other cases, his presence is not necessary.
5. The jurisdiction of the appellate Court for suspension of sentence pending appeal is provided in S. 389 of the Code. For an appreciation of the question involved, S. 389(1) and (3) of the Code have to be read carefully. The headnote of S. 389 is “Suspension of sentence pending the appeal; release of appellant on bail”. From this headnote itself it is clear that the code recognises the clear distinction between suspension of sentence and release on bail. In other words, it is not always necessary that suspension of sentence should be followed by release of the accused on bail, the release of the accused on bail becoming necessary only when the accused is in confinement. S. 389(1) and (3) read:
“(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 be 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,—
(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,
6. 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”.
7. S. 389(1) read above, confers two powers on the appellate Court: to suspend the sentence and release the accused on bail, if he is in confinement. S. 389(3) enables the convicting Court, in cases of conviction both under bailable and non-bailable offences, contrary to what was contained in S. 426(2)(A), of the old Code, to direct the person convicted to be released on bail; on condition that if he is convicted, the sentence should not exceed a term of three years. Thus, S. 389(1) enables the appellate Court to suspend the sentence or release the accused on bail, while S. 389(3) enables the convicting Court to release an accused on bail even after conviction. None of the above-said sections make it obligatory on the part of the appellate Court to insist upon the accused to be present to receive judgment and none of the provisions require the revisional Court to insist upon the confinement of the accused before suspending the execution of the sentence or order.
8. The learned counsel for the petitioner submits that if an accused was on bail and is not in confinement, the only order that need be passed by a revisional Court is to suspend the sentence passed against him and unless the revisional Court intends to impose conditions different from the conditions already imposed, the accused should be deemed to be continuing on the old bail bond executed by him. The appellate Court has always power to get the attendance of the accused before it by directing him to appear when the judgment is pronounced. And if he does not appear, the Court has power to issue a warrant for his appearance and to pronounce the judgment only when he appears. When the appellate Court does not take recourse to this procedure, the Code does not insist upon the surrender of the accused to custody by the revisional Court before suspending the sentence.
9. I should not be understood to hold that under no circumstances can a revisional Court insist upon the attendance of an accused or his surrender to his bail before sentence is suspended. In cases where the appellate Court after pronouncing judgment directs that the accused's bail bonds are cancelled, the accused has necessarily to surrender to his bail before he can obtain an order of suspension of his sentence, from the revisional Court. And in so doing, the revisional Court has necessarily to release the petitioner on bail in addition to supending the sentence passed against him; which means that if there is no direction by the appellate Court for cancellation of the bail bonds, there is no necessity to release the accused on bail, because there is no need for him to surrender to his bail. Since S. 397 visualises exercise of dual powers by the revisional Court, to suspend the sentence and to release the accused on bail, it presupposes the fact that in one case, the accused is not in confinement while in the other he is in confinement. It is not as though the revisional Court has no powers to get the presence of the accused at any time. Under S. 401 the High Court has all the powers that the Court of Appeal can exercise under Ss. 386, 389, 390 and 391. The High Court is enabled, in an appeal against acquittal, by S. 390 of the Code to issue a warrant directing that the accused be arrested and brought before it or any subordinate Court and the Court before which he is brought can commit him to prison till the disposal of the appeal. Where an accused is acquitted, his bail bonds are automatically cancelled. The High Court can in appropriate cases resort to S. 390 of the Code. In an appeal against acquittal, the accused need not be brought at all. Since the High Court in revision exercises all the powers of an appellate Court, it can in appropriate cases direct the accused to be brought up or direct him to attend the Court to hear the judgment. But has it the power under S. 387 of the Code. Among the sections enumerated in S. 401, S. 387 has been deliberately omitted, for the good reason that S. 387, deals with subordinate appellate Courts. The Code does not visualise the need for the High Court requiring the attendance of the accused to receive the judgment because necessary consequences will follow in enforcement of the bail bond executed by the accused after the judgment is rendered by the High Court.
10. From the foregoing discussion, what follows is that except in cases provided by the aforementioned sections, the revisional Court need not insist upon the confinement of the accused before ordering suspension of sentence or order passed against him. If the accused is in confinement, the revisional Court will have to direct his release on bail; if he is not in confinement the ravisional Court need only Suspend, the execution of the sentence or order, either on the bond already executed or as directed by the revisional Court. Since the relevant provisions of the Code have clearly delineated the situation where the accused's presence is necessary, and since S. 397 is silent about the custody or confinement of the accused, the revisional Court need not insist upon bringing the accused to confinement before exercising the powers under S. 397(1) of the Code. I, therefore, direct that the petitioner's sentence will be suspended on his executing a bond for appearance in the ‘lower appellate Court or in this Court, for Rs. 1000/- with two sureties in the like sum to the satisfaction of the Chief Judicial Magistrate's Court, Trichur.
Comments