Patna High Court - Orders
Shiv Sahni & Ors vs The State Of Bihar on 25 May, 2017
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.1400 of 2017
Arising Out of PS.Case No. -6 Year- 2006 Thana -PURAINI District- MADHEPURA
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1. Shiv Sahni, Son of Late Brihaspati Sahni,
2. Kabutri Devi, Wife of Shiv Sahni,
3. Tetri Devi, W/o Shankar Sahni,
4. Sakuntala Devi, W/o Kailash Sahni, All Resident of Village- Puraini
Bazar, P.S.- Puraini, District- Madhepura.
.... .... Appellant/s
Versus
The State of Bihar ... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Vikramdeo Singh, Advocate
Mr. Pawan Kumar, Advocate
For the Respondent/s : Mr. Shyed Ashfaque Ahmad, APP
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER
3 25-05-2017Instant appeal has been preferred by the appellants, Shiv Sahni, Kabutri Devi, Tetri Devi and Sakuntala Devi against the judgment of conviction and sentence dated 29.03.2017 passed by Sessions Judge, Madhepura in Sessions Trial No. 85/2008 arising out of Puraini PS Case No.06/2006 whereby and whereunder they all have been found guilty for an offence punishable under Sections 148, 323, 341, and 379 IPC. Furthermore, appellant, Shiv Sahni has also been found guilty for an offence punishable under Sections 324 IPC and accordingly, all the appellants have been sentenced RI for 3 years under Section 148 IPC as well as to pay fine of Rs. 5,000/- in default thereof, to undergo RI for 2 months additionally, RI for 1 year as well as fine of Rs. 1000/- in default thereof, to undergo RI for 1 month additionally under Section 323 IPC, SI for 1 month under Section 341 IPC, RI for 3 years as well 2 as fine of Rs. 5000/- in default thereof, to undergo RI for two months, additionally for an offence punishable under Sections 379 IPC. Appellant, Shiv Sahni has further been sentenced to undergo RI for 3 years as well as to pay a fine of Rs. 5000/- and in default thereof, to undergo RI for 2 months additionally under Section 324 IPC and further, directed to run the sentences concurrently.
2. It is further evident that on the same day i.e. on 29.03.2017 itself all the appellants were released on provisional bail on furnishing bail bond of Rs. 10,000/- of the like amount each in order to facilitate filing of an appeal but, no time schedule has been prescribed therefor.
3. When the appeal has been listed for admission, the aforesaid anomaly has been traced out and the same has been pointed out to the learned counsel for the appellant whereupon has been requested to justify the order.
4. Heard learned counsel for the appellants as well as learned APP for the State.
5. Section 389 of the CrPC deals with the scope of grant of bail during pendency of an appeal. Section 389 CrPC is bifurcated in three parts. Sub-Section 1 thereof, empowers the appellate court to deal with the same whereunder may grant bail till pendency of appeal after suspending the sentence, or may refuse. Sub-Section 2 prescribes extraordinary power vested to the 3 High Court to entertain the prayer in case, bail is refused by the appellate court in terms of Section 389(1) CrPC when appellate court happens to be subordinate to the High Court. Sub-Section 3 of Section 389 CrPC deals with special power to the convicting court irrespective of its status being a Magistrate Court or the Sessions Court to release the convict on provisional bail for specified period facilitating filing of an appeal, in case, so prayed for on that very score subject to condition:- (1) where such person being on bail is sentenced to imprison for a term not exceeding three years or (2) where an offence of which such person has been convicted is a bailable one and he is on bail and on filing of an appeal, aforesaid eventuality is to be cared by the appellate court in terms of Section 389(1) CrPC.
6. Learned counsel for the appellants has submitted that though, Sub-Section 3 of Section 389 permits grant of provisional bail only to such a period which could be sufficient for filing of an appeal and, no sooner than filing of an appeal, the order became law in terms of Section 389(1) of the CrPC by the appellate court and that being so, in spite of having absence of proper identification of „for such period‟, as the order impugned discloses, it should be construed as 60 days, the period prescribed for filing an appeal before the High Court in terms of Article 115 of the Limitation Act and so, the order impugned be also viewed 4 in the aforesaid background. Therefore, the appellants to be considered on provisional bail for the aforesaid period extending to 60 days counted from the date of the judgment and on account thereof, appeal be admitted with consequential relief calling for Lower Court Records as well as confirming the provisional bail in accordance with Section 389(1) of the CrPC after suspending the sentence.
7. Learned APP controverted the submission made on behalf of appellants and submitted that Section 389(3) of the CrPC as well as Article 115 of the Limitation Act command two independent spheres. Article 115 of the Limitation Act governs the maximum time limit whereunder an appeal is to be preferred before the High Court against the judgment of conviction and sentence identifying period of limitation to be 60 days where it happens to be otherwise than capital punishment for that, a period of 30 days has been prescribed for filing an appeal. Therefore, the maximum period of 60 days so prescribed, as it relates with regard to present controversy could not govern the issue in the background of the fact that had there been intention of the legislator to mandate the same, instead of „for such period‟ it should have been incorporated as the period prescribed under Article 115 of the Limitation Act. That means to say, the maximum period so prescribed under Article 115 of the Limitation 5 Act could not govern „for such period‟ as prescribed under CrPC. That means to say, it looks prudent to accept the intention of the legislator whereunder it could safely be construed that irrespective of period of 60 days allowed for filing an appeal in terms of Article 115 of the Limitation Act, it should not eclipse the mandate of Sub-section 3 of Section 389 whereunder Court is empowered to pass appropriate order even keeping in consideration Article 115 of the Limitation Act prescribing particular period available to the appellant for filing the appeal and further, „for such period‟ convict should be allowed to avail the privilege of provisional bail.
8. Furthermore, it has also been submitted that whenever provisional bail is granted, it happens to be for a particular period. If the said period is not identified, then in that event, it would be in the nature of regular bail till pendency of the appeal which, the convicting court did not pass for want of power having vested to it in terms of Section 389(3) CrPC. If the order impugned is directed to survive, then in that event, as there happens to be complete lacking of the period for which provisional bail is to survive, then in that event, the appellate court would not be in a position to pass appropriate order in terms of Section 389(1) of the CrPC because of the fact that „for such period‟ is to be influenced by an order passed under Section 6 389(1) of the CrPC. Therefore, the order impugned by which the appellants have been granted provisional bail would not survive and so, the appeal is found deficient one suffering from the defect.
9. For better appreciation of the rival submissions first of all Section 389 CrPC is to be seen and for better appreciation, is quoted below:-
"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."
10. In likewise manner, Article 115 of the Limitation Act is quoted below:-
115 Under Code of Criminal Procedure,1898
(a) From a sentence of death Thirty The date of the sentence passed by a court of section or days by a High Court in the exercise 7 of its original Criminal Jurisdiction.
(b) From any other sentence or any order not being an order of acquittal -
(i) to the High Court Sixty The date of the sentence or order.
days
(ii) to any other Court Thirty The date of the sentence or order.
days"
11. So, from the plain reading of the Section 389(3) of the CrPC, it is evident that irrespective of the period having been prescribed under Article 115 of the Limitation Act, the legislator has mandated granting of provisional bail „for such period‟ whereunder appellant could file an appeal and further, the aforesaid provisional bail, during midst of pendency of appeal, should come up before appellate court for consideration which, the appellate court would adjudicate upon in terms of Section 389(1) of the CrPC. Therefore, the intention of the legislator is very much clear.
12. In Mayuram Subramanian Srinivasan v. C.B.I. as reported in AIR 2006 SC 2449, it has been held as follows:-
"18. It has been submitted that the statutory provisions of Section 389 (3), Cr.P.C., has an overriding effect over the Supreme Court Rules and hence once bail has been granted to a convicted person by the trial court, this Court cannot insist that he should surrender to the sentence in terms of Rule 13A before his appeal can be registered.8
19. While such a submission is attractive, it does not stand scrutiny for the simple reason that sub- section (3) of Section 389, Cr.P.C. empowers the trial Court to release a convicted person on bail for such period as will afford him sufficient time to present an appeal and obtain orders of the Appellate Court under sub-section (1), namely, release on bail, and it is only for such period that the sentence of imprisonment shall be deemed to be suspended.
13. Now coming to the nature of the order having been passed by the learned lower court, it is evident that though all the appellants were granted provisional bail but it was not „for such period‟ and on account thereof, it virtually, goes out of consideration of appellate court in terms of Section 389(1) of the CrPC because of the fact that in terms of Section 389(1) of the CrPC, it happens to be an option of the appellate court to confirm the provisional bail or to reject the same. If provisional bail „for such period‟ is not at all found in an order passed by trial court, then in that event, whether the appellate court in terms of Section 389(1) of the CrPC would exercise its power either to confirm or to reject the provisional bail granted to the appellants. Furthermore absence of „such period‟ will encroach upon the power of the appellate court, which Subsection (3) itself acknowledges as well as order under Subsection (3) is always consideration of appellate 9 court in terms of Section 389(1) CrPC, which the legislator knowingly prescribed for proper consideration of the appellate court to continue with the same by way of affirmation or to decline. Therefore, non prescribing of such period will literally deprive of the appellate court to exercise its power under Section 389(1) CrPC, which the Code did not allow.
14. Furthermore, it has to be borne in mind that applicability of grant of provisional bail in terms of Section 389(3) of the CrPC inconsonance with order passed under Section 389 (1) CrPC happens to be operative only till pendency of an appeal and, the aforesaid eventuality indicates that during said period, the sentence is being suspended.
15. That means to say, the provisional bail granted by the convicting court „for such period‟ allows the appellant within the domain of appellate court by the trial court and the appellate court in terms of Section 389(1) of the CrPC expected to pass appropriate order. In case, there happens to be lacking of specific order allowing provisional bail for specified period, then in that event, it will be construed that the aforesaid order would not come within the domain of appellate court in terms of Section 389(1) of the CrPC because of the fact that while exercising power in terms of Section 389(1) of the CrPC, the appellate court does not act as an appellate court to adjudicate upon the order passed under 10 Section 389(3) of the CrPC in case there happens to be lacking of grant of provisional bail by the convicting court for specified period, rather it happens to be an independent exercise in terms of Section 389(1) of the CrPC which commences as soon as the appeal came up for admission, and further, an order passed under Section 389(3) CrPC found enforceable till then, that means to say, by allowing provisional bail for such period, the trial court paves way for consideration of prayer by the appellate court in terms of Section 389(1) CrPC. That means to say, passing of an order under Section 389(3) CrPC happens to be an intermediary stage to be availed by convict to prefer an appeal and got an order by the appellate court in terms of Section 389(1) CrPC. If the order under Section 389(3) CrPC did not contain specified period, then it will continue and then, in that event, there would not be an application of Section 389(1) CrPC. That means to say, the code mandate validity of an order passed under Section 389(3) CrPC of the order only for limited period and not beyond that. If the order passed under Section 389(2) CrPC does not specify the period, then in that event, it would not be an order properly identifiable under Section 389 (3) of the CrPC, and then, in that event, would not allow the appeal to be maintainable in terms of Chapter XIII Rule 8 of the Patna High Court Rules.
16. Apart from this, , prescribing period for 60 days 11 under Article 115 of the Limitation Act is for filing an appeal which may be extended in case, the appellant crosses the aforesaid mandatory period by condoning the delay as per Section 5 of the Limitation Act. If the said view is accepted as raised by the appellants that provisional bail, irrespective of having specified „for such period‟ under Section 389(3) CrPC, will be stretched upon for infinite period, which does not happen to be the mandate of law. Filing of an appeal is one circumstance and granting provisional bail for specified period for filing an appeal, is an other event. Both may coincide may not coincide. It is to be guided from the conduct of the appellant/convict. Moreover, such kind of order is not at all found curable under Section 460 CrPC.
17. Now, other side of the coin is to be seen. There happens to be a legal maxim, "Actus curiae neminem gravabit".-- An act of the Court shall prejudice no man. No litigant is responsible for the acts of the Court, and can take no prejudice by obeying its orders, which he is bound to obey. If, for example, in a multiplepoinding the Court should order payment to be made to a claimant, and payment is made under that order, the holder of the fund cannot be required to repeat the amount in the event of its being shown that the claimant preferred had not title to the sum paid, or that another had a better title than he. Again, certain acts by a litigant outwith the cursus curiae might be 12 sufficient to bar a subsequent appeal, but if these acts are performed not voluntarily, but under the order of Court, the appeal will not be barred.
18. Though it was expected at the end of the appellant to have pointed out at that very stage before the learned lower court that the order impugned happens to be contrary to the spirit of Section 389(3) of the CrPC which they failed but, as the appellants are availing status of the provisional bail, on account thereof, are directed to get the order impugned rectified by the learned lower court itself within one month and further, to file certified copy thereof, on supplementary affidavit, till then the instant memo of appeal be kept in abeyance. After filing of the same, the appeal will be listed under the heading „for admission‟.
19. At the other hand, the learned lower court would consider that whenever convict is released on provisional bail, it should always be for specified period only.
(Aditya Kumar Trivedi, J)
Patna High Court
May the 25th 2017
AFR/perwez
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