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Andhra Pradesh High Court - Amravati

Sl. Office vs Nandkishor Ramnivasji Agrawal And on 29 December, 2025

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                         Crl.R.C.No.1512 of 2025

      HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

             MAIN CASE No: Crl.R.C.No.1512 of 2025

                             PROCEEDING SHEET
SL.                                                                            OFFICE
No.     DATE                            ORDER                                   NOTE
01.   29.12.2025   Dr.YLR,J
                                        I.A.No.1 of 2025

                            Certified       copy of    the    Judgment    is
                   dispensed with for the present.

                                CRL.R.C.No.1512 of 2025

                            Admit.

                            Issue notice to respondent No.1.

The learned counsel for the petitioner is directed to take out personal notice in respect of respondent No.1 and file proof to that effect.

List the matter after six (6) weeks.

The learned Appellate Court has no discretion to release the petitioner/appellant/ accused by granting time to surrender before the learned Trial Court within one month. When the learned Appellate Court passed the sentence of imprisonment, it ought to have remanded the petitioner/appellant/accused to judicial custody forthwith enabling him to approach this Court for filing a revision to seek bail and also suspension of sentence imposed by the learned Appellate Court.

      SL.                                                                              OFFICE
      No.         DATE                          ORDER                                   NOTE

It is a matter of serious concern and requires deprecation that, in several instances were brought to the notice of this Court that the learned Appellate Courts, while confirming the conviction and imposing sentence on the petitioner/appellant/accused, have been granting liberty to the accused to surrender before the learned Trial Court within a stipulated time. Such a practice is against the spirit of the Code of Criminal Procedure, 1973 (for brevity „the Cr.P.C.‟).

In Fazal Khalil Ahemad Shaikh vs. Nandkishor Ramnivasji Agrawal and another1, the Hon‟ble Supreme Court had an occasion to deal with the issue whether the lower appellate Court, under the Cr.P.C., has power to suspend the sentence or grant bail after deciding the appeal filed against the conviction and sentence. The Hon‟ble Supreme Court has referred to the earlier precedents on the point, wherein it was categorically held that „the Cr.P.C‟. does not confer any inherent jurisdiction on the lower appellate Court to directly or indirectly suspend the sentence after decision of the appeal. It was held that the lower Appellate Court after deciding the appeal becomes functus officio and ceases to have any power in the matter to suspend the sentence for grant of bail even temporarily.

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    2020 SCC OnLine Bom 706
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                Crl.R.C.No.1512 of 2025

SL.                                                                 OFFICE
No.   DATE                    ORDER                                  NOTE

Relevant portion of the aforesaid judgment reads as follows:

"8. Another fact, that is required to be considered is, that in Ramesh Murlidhar Sharma‟s case when the order dated 12.02.2019 was passed, it was the application, which was decided in respect of suspension of substantive part of the sentence. At that time, the decision of this Court in earlier matters i.e., Moinoddin Khodboddin (supra) as well as Dilip Ramchandra Umare (supra) were not pointed out, though in Moinoddin Khodboddin (Supra) as well as Dilip Ramachandra Umare (supra) this Court has considered the powers under Section 386, 387 and 389 of the Code of Criminal Procedure. Dilip Ramachandra Umare was the first in time and the point, which was dealt with, was - "The first and the foremost point which requires to be considered before I advert to the arguments advanced by the learned counsel for the applicant is whether the lower appellate Court under the Code of Criminal Procedure, 1973 has power to suspend the sentence or grant bail to enable the accused to prefer revision application before High Court after the appeal against the conviction and sentence has been decided." This Court observed that, "the Code does not confer any inherent jurisdiction on the lower Appellate Court to directly or indirectly suspend the sentence after decision of the appeal". It was held, that the lower Appellate Court after deciding the appeal becomes functus officio and ceases to have any power in the matter to suspend the sentence for grant of bail even temporarily. The same ratio was confirmed in Moinoddin Khodboddin (supra) and further observations were made -

"14. Reading proviso to Section 387 of the Criminal procedure Code, it may be argued that, it is not mandatory upon the appellate Court to direct the accused to be brought up or required to attend, to hear the judgment delivered because of the words "shall not" incorporated in the proviso. However, this proviso is required to be read in the light of Section 387 read with Section 353(5) and 535 (6). Provisions regarding the judgment, as contained in Chapter XXVII of 4 Crl.R.C.No.1512 of 2025 SL. OFFICE No. DATE ORDER NOTE the Criminal Procedure Code are applicable to the judgment of subordinate appellate Court and in Section 387 also the words used are "shall apply". The proviso to Section 387, therefore, shall stand controlled by the provisions contained in Sections 353(5) and 353(6) and, therefore, the subordinate appellate Court will be obliged to secure the presence of accused/applicant before it for pronouncement of judgment except in the cases wherein the judgment is of acquittal or one of fine only. Once the presence of appellant-accused is secured or the purpose of pronouncement of judgment confirming the conviction with substantive sentence, as observed in the matter of Dilip v. State of Maharashtra (supra), the Subordinate Appellate Court would become functus officio and cannot suspend the sentence or grant bail in order to enable the accused to prefer revision before the High Court. The only course available, therefore, would be to execute the order of conviction confirmed by it, leaving the accused to obtain suspension of sentence and bail from the High Court by preferring appropriate revision.

Therefore, the Registrar (Judicial) is directed to issue necessary circular to all the Appellate Courts in the State, after obtaining necessary orders from the Hon‟ble The Chief Justice.

In the facts and circumstances of the case, the sentence of imprisonment alone is suspended, pending disposal of the Criminal Revision Case, in the event the petitioner herein is surrendered before the learned IV Additional Junior Civil Judge, Guntur, within one week from the date of receipt of copy of this order. And on such surrender, the petitioner shall be enlarged on bail on executing a self- bond for a sum of Rs.10,000/- (Rupees Ten 5 Crl.R.C.No.1512 of 2025 SL. OFFICE No. DATE ORDER NOTE Thousand only) with two sureties for a like sum each to the satisfaction of the learned IV Additional Junior Civil Judge, Guntur on the same day. The petitioner shall deposit 10% of the cheque amount before the learned IV Additional Junior Civil Judge, Guntur within a period of four weeks from this day. Failing which, the learned IV Additional Junior Civil Judge, Guntur is directed to proceed in accordance with law for depositing of 10% of the cheque amount by the petitioner.

The respondent No.1 is at liberty to withdraw the deposited amount subject to production of sufficient sureties to the satisfaction of the learned IV Additional Junior Civil Judge, Guntur.

________ Dr.YLR,J Copy submitted to:

The Registrar (Judicial), High Court of Andhra Pradesh.

B/o.

SDP