Andhra HC (Pre-Telangana)
Duvvu Umapathi Reddy vs State Of A.P. Rep. By Public Prosecutor on 20 June, 2000
Equivalent citations: 2000(2)ALD(CRI)193, 2000CRILJ4183
ORDER T. Ch. Surya Rao, J.
1. The petitioner assails the order dated 2-6-2000 passed by the learned Additional Sessions Judge, Srikakulam, in Criminal M. P. No. 306 of 2000 in Criminal Appeal No. 58 of 2000.
2. On an application filed under Section 389(1) of the Criminal Procedure Code (for short 'the Code') seeking suspension of the sentence, the impugned order came to be passed. The petitioner was convicted by the trial Court in C. C. No. 14 of 1997 for the offences under Section 471, I.P.C. and was sentenced to suffer rigorous imprisonment for six months and was further sentenced to pay a fine of Rs. 1,000/- and in default to suffer rigorous imprisonment for three months. Having been aggrieved by the conviction and sentence passed against him, he preferred Criminal Appeal No. 58 of 2000 before the Sessions Court, Srikakulam. An application was also filed along with the appeal. That Criminal M. P. No. 299 of 2000 was dismissed on 31-5-2000 for want of valid reasons, inter alia, in the petition. Thereafter, the appeal was made over to the Court of the Additional Sessions Judge, Srikakulam. The petitioner filed another petition in Criminal M. P. No. 306 of 2000 under Section 389(1) of the Code seeking suspension of the sentence and enlargement on bail. That application having been dismissed on the premise that a second application cannot be considered, the earlier application in Criminal M. P. No. 299 of 2000 having been dismissed by the Sessions Court, assailing the same, the present Revision Case has been filed before this Court.
3. Section 389(1) of the Code is the relevant provision, which enables the appellate Court, for reasons to be recorded, to suspend the execution of the sentence passed against the appellant and if the convicted person is in confinement, to order his release on bail or on his own bond. Without suspending the execution of the sentence, it is axiomatic that no order for releasing the convict on bail or on his own bond could be passed. Section 390 of the Code enables the appellate Court to direct the accused to be arrested and brought before it and commit him to prison, pending disposal of the appeal or the appellate Court may admit him to bail. This power can be exercised by the appellate Court notwithstanding the fact that an order has been passed earlier under Section 389(1) of the Code. The provisions of Sections 389 and 390 of the Code envisage that the granting of bail is separate from the provisions of Sections 436 to 439 of the Code. Sections 436 to 439 of the Code enable the Court to enlarge the accused on bail on different considerations and on different circumstances, as is envisaged by the respective Sections of the Code. The power under these Sections can be exercised whenever any person is accused of the commission of any offence, either bailable or non-bailable, and is arrested or detained without any warrant of the Court.
4. So, on perusal of these Sections, it is obvious that the discretionary power of the Court can be exercised under these Sections i.e. 436 to 439 of the Code at a stage preceding the termination of the trial. When once the accused is convicted and sentenced appropriately, in my considered view, Sections 436 to 439 have no application. Then, the sections germane for consideration on such conviction, by the appellate Court on a petition presented by the convict are as afore-discussed, Sections 389 and 390 of the Code. Under both these provisions, a bail can be granted to the convict.
5. It is manifest that successive applications can be filed, of course, on recurring cause of action or changed circumstances seeking bail. Merely, because a bail application filed by the accused is dismissed, it cannot be said that no second application can be maintained. That being the position, I do not see any reason as to why the appellate Court cannot exercise such a power of granting bail when once the request of the appellant has not been considered for enlarging him on bail after suspending the execution of sentence. It may be reiterated here that the appellate Court too will be granting bails to the appellant after suspending his execution of sentence passed by the trial Court or simultaneously granting both the reliefs. For the reasons to be recorded in an appropriate case, the appellate Court may even suspend the order appealed against, when the appellate Court is expected to exercise its discretion for granting or for refusing to grant bail. I see no reason as to why the Court cannot consider a second application when once the first application having been dismissed. It may be further reiterated that Section 390 of the Code envisages a situation subsequent to a situation obtained under Section 389 of the Code. Even while hearing the appeal, for any reasons, if the appellate Court feels that the accused is to be committed to the prison, pending final disposal of the appeal, who has already been enlarged on bail, or if it feels that the appellant may be released if he is already in confinement, either course is open to it. Therefore, it is manifest that the appellate Court can exercise the power for the second time at a later stage. One should not be oblivious of the fact that the Court is granting bail ultimately to the appellant who has been convicted by the trial Court and suspension of execution of sentence should precede the order granting bail. For the above reasons, I am afraid that I am not able to subscribe to the views expressed by the learned Additional Sessions Judge, Srikakulam. I see that there is no legal bar to entertain the second application for grant of bail under Section 389(1) of the Code while suspending the execution of the sentence. Section 389 of the Code is meant to enable the convict-appellant to seek bail by suspending the order of execution of sentence so as to make the necessary arrangements for defending himself effectively in the appeal as the liberty of an individual is at stake. Therefore, the liberty of an individual cannot be ignored nor the object behind the incorporation of provisions under Section 389 of the Code be diluted with hypertechnical approach to the problem. The Courts are expected to render justice. If for any reason, the appellate Court is of the-view that the convict appellant shall not be allowed to be enlarged on bail by suspending the execution of the sentence. It is at liberty to refuse to exercise jurisdiction vested in it. So long as that conclusion is not reached, the discretion vested in the Court is to be exercised ultimately to subserve the interests of justice.
6. For the foregoing reasons, the Criminal Revision Case is allowed and the order impugned is set aside and the matter is remitted back to the Court below and the Court below is directed to consider the application of the petitioner filed under Section 389(1) of the Code, afresh on its merits.