Himachal Pradesh High Court
Govinda vs State Of H.P on 19 December, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP No. 2199 of 2019 in Cr. Appeal No. 573 of 2019.
.
Reserved on: 4th December, 2019.
Date of Decision: 19th December, 2019.
Govinda .....Applicant/Appellant.
Versus
State of H.P.
Coram
r to ....Respondent.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the Applicant/Appellant: Mr. N.S. Chandel, Senior Advocate with Mr. Vinod Gupta, Advocate.
For the Respondent: Mr. Hemant Vaid, Addl. A.G., with, Mr. Vikrant Chandel, Deputy Advocate General.
_______________________________________________________ Sureshwar Thakur, Judge.
The accused/convict/applicant herein, has, through, criminal appeal No. 573 of 2019, constituted a challenge, vis-a-vis, his conviction, vis-a-vis, a charge framed, against him, under, Section 15, of, the Narcotic Drugs and Psychotropic Substances Act, 1985, and, also, ::: Downloaded on - 21/12/2019 20:26:20 :::HCHP 2 vis-a-vis, the consequent thereto, imposition of sentence of imprisonment of four years, upon, him. This Court, had, admitted Criminal Appeal no. 573 of 2019, through, an .
order made on 6.11.2019, and, also, an application bearing Cr.MP No. 1992 of 2019, and, cast under Section 389 of the Cr.P.C, seeking therethrough, suspension, of, the afore term, of, sentence, of, imprisonment, became dismissed.
2. Be that as it may, subsequent, to, the, dismissal, of, the afore application, bearing Cr.MP No. 1992 of 2019, the learned counsel appearing, for, the convict/accused, has, thereafter cast, the, extant application, under, the mandate, of, Section 389, of, the Cr.P.C., application whereof bears Cr.MP No. 2199 of 2019, seeking, therethrough, the, according, of, the, afore declined relief, to, him. Even though, after the dismissal, of, the afore application, bearing Cr.MP No. 1992 of 2019, through, an order, made, on, 6.11.2019, the subsequent thereto, application bearing Cr.MP No. 2199 of 2019, is, not maintainable, before this Court, as, thereupon, this Court, would be impermissibly reviewing, its order, rendered, on, Cr.MP No.1992, of, 2019, on 6.11.2019.
::: Downloaded on - 21/12/2019 20:26:20 :::HCHP 33. However, the learned counsel appearing, for, the application, makes, a, submission, before this Court, that, the earlier order, of, dismissal, made, upon, Cr.MP .
No.1992 of 2019, being per incuriam, vis-a-vis, the mandate, borne, in, Section 389, of, the Cr.P.C., provisions whereof, read as under:-
"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-::: Downloaded on - 21/12/2019 20:26:20 :::HCHP 4
section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment .
for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced."
(a) thereupon, this Court, does deem it fit, and, proper, to,consider the afore submission, He further, with much vehemence, contends before this Court, that, with the first proviso, occurring underneath sub-section (1), of, Section 389, of, the Cr.P.C., rather casting an explicit trammeling fetter, upon, the jurisdiction, of, the Appellate Court, to, suspend the execution, of, sentence of imprisonment, imposed, upon, the accused, or to, rant bail to the convict,
(ii) and, when, the, afore statutory trammels, are, restricted to, or confined, vis-a-vis, the charged offences, becoming enjoined, to, become imperatively punishable, with death or imprisonment for life or imprisonment for a term of not less than ten years, (iii) thereupon, he contends, that, the afore proviso, occurring underneath, sub-section(1) of Section 389, of, the Cr.P.C., when becomes inapplicable hereat, (iv) inasmuch, as, the hereat offences, qua wherewith the accused/applicant herein stood charged, and, became convicted, rather not ::: Downloaded on - 21/12/2019 20:26:20 :::HCHP 5 entailing, upon, the learned trial Court, to, impose upon him sentence, of, imprisonment for life or imprisonment for a term, of, not less than ten years, (v) rather when the .
convict hereat, became sentenced, to, undergo, imprisonment rather only for four years, thereupon, the afore statutory restriction, and, appertaining, to, the afore power, of, sentencing, of, the learned convicting court, when, is, beyond the ambit, of, the first proviso, occurring underneath sub-section (1), of, Section 389 of the Cr.P.C,
(vi) and, hence thereupon, the convict holding, an, indefeasible right, to, make, a, valid espousal, before this Court, for, his becoming ordered, to be, released, on, bail, vis-a-vis, the sentence of imprisonment imposed, upon, him, and, extending upto a term, of, four years, or, the, afore term, of, sentence, of, imprisonment imposed, upon, him, being ordered to be suspended, during, the pendency, of, the extant appeal, before, this Court.
4. However, to, the considered mind of this Court, the afore submission rather falters, (a) as, the learned counsel appearing, for, the convict/applicant, has, failed, to, notice the ambit, scope, and, amplitude of sub-section (3), of, Section 389 of the Cr.P.C., domains whereof, also to, the, considered mind, of, this Court, apart from, the, ::: Downloaded on - 21/12/2019 20:26:20 :::HCHP 6 afore statutory trammelings, hence fetter the jurisdiction, of, the Appellate Court, to, order, for, the convict being released, on bail, during, the pendency, of, the apposite .
appeal, or to order, for, the imposed sentence, of, imprisonment being suspended, during, the pendency, of, the appeal, and, besides thereto, rather also becomes operational, (b) as, clause (i), of, subsection (3), of Section 389, of, the Cr.P.C., also operates, as, an, added restriction hence in addition, to, the restriction(s) occurring, in, the first proviso, as, becomes borne underneath, the, mandate, of, sub-section (1), of, Section 389 of the Cr.P.C., and, unless, the, ingredients borne, in, clause (i) of sub-
section(3) thereof, become meted satiation(s), (c) thereupon, the Appellate Courts' jurisdiction rather becoming trammeled, to, make an order, of, releasing the convict, on, bail, or to order, for, suspending, the, imposed sentence, of, imprisonment, upon, its term rather exceeding, three years. The reason, for, making, the, afore inference, is, encapsulated, in, (a) the statutory coinage occurring in sub-section(3) of Section 389 of the Cr.PC..
"where the convicted person satisfies the court by which he is convicted", rather covering, and, encapsulating, all the contingencies, hence, even where, the, appellate court ::: Downloaded on - 21/12/2019 20:26:20 :::HCHP 7 including High Courts, becomes, the, convicting court, (b) and, only, if the afore connotation is ascribed, vis-a-vis, the afore statutory coinage, thereupon, any, inter se .
imbalance(s), and, dichotomies, inter se, sub-section (1) of Section 389, Cr.P.C., and, sub-section (3) of Section 389 of the Cr.P.C., would become obviated, dehors the coinage, "the appellate Court may", as, occurs, in, sub-section (1) of Section 389 of the Cr.P.C., hence, becoming borne therein, latter coinage whereof, in the afore eventuality, does, assume synonymity, with, the afore alluded coinage, existing, in, subsection 3, of, Section 389, of, the Cr.P.C..
In aftermath, this court make a conclusion, vis-a-vis, the restrictions, vis-a-vis, exercising(s), of, apposite discretion, as, borne in clause (1) of sub-section (3) of Section 389 of the Cr.P.C., and, though is exercisable, by the convicting court, upon, the accused becoming convicted, to, undergo sentence, of, imprisonment, for a term not exceeding three years, also, becoming amenable, for, hence becoming transposed, into, the, mandate, of, sub-section (3) of Section 389 of the Cr.P.C., and, also rather, it, operating, in, addition, to, the, apposite trammeling(s), hence, occurring, in, sub-section (1), of, Section 389, of, the Cr.P.C., rather, as, a, supplemental thereto, rider or ::: Downloaded on - 21/12/2019 20:26:20 :::HCHP 8 restriction, vis-a-vis, the power, of, the appellate Court, to, suspend, the, sentence, of, imprisonment, even after, it, becomes imposed, by, the, convicting court, hence lower, .
than, the, Appellate Court.
5. Furthermore, thereonwards, since, clause (i), and, clause (ii), to, sub-section (3), of, Section 389, Cr.P.C., are, separated, by, the, word(s) "or", and, when clause (2), to, sub-section (3), of, Section 389, of, the, Cr.PC, appertains, to, the,appositely charged bailable offences, and, when the afore category, of, offences are exclusively triable, by the, judicial Magistrate concerned, (a) and, also hence the latter, is, therethrough bestowed rather with jurisdiction, to, convict, and, to, sentence, the, accused, and, to, in the interregnum, since the afore conviction, and, consequent therewith order, of, sentence, becoming pronounced rather against the convict, hence, for, enabling, the sentencee, for, thereagainst, an appeal, becoming preferred, before, the appellate court, to order, for, the convict becoming released hence on bail, (b) hence, the legislative wisdom, has, segregated, the, charges appertaining, to, the non bailable offences, and, bailable offences, and, also has, in its wisdom, has made layers, and, categorization, of, offences exclusively triable, ::: Downloaded on - 21/12/2019 20:26:20 :::HCHP 9 by, the Magistrate concerned, and, also those, which become exclusively triable by the Court of Sessions or by the Special Court, (c) and, when hereat the .
convict/sentencee became tried, vis-a-vis, those offences exclusively triable, by, the Special Court, or, by the Court of Sessions, (d) and, became sentenced, for, a term extending upto four years, and, further thereonwards, with this Court including, within the ambit, of, the, statutory coinage ""where the convicted person satisfies the court by which he is convicted", also, the High Court, upon, its becoming seized, with, the apposite order, of, acquittal, vis-a-vis, the, apposite chargedoffence, exclusively triable, by, the Court, of, Sessions, or, by, the, Special Court concerned, (e) and, when thereafter, this court, within, the ambit, of, sub-section (3) of Section 389 of the Cr.P.C., can exercise, powers, for, releasing, the, convict, after overturning, the verdict, of, acquittal, on appeal, during, the interregnum, since the imposition, of, the afore term(s), of, sentence of imprisonment, upon, him, for, his, rather becoming enabled, to, thereagainst, hence, make, a, motion before the Hon'ble Apex Court, (f) thereupon, the ascription(s), of, the afore parlance to the statutory coinage, "where the convicted person satisfies the court ::: Downloaded on - 21/12/2019 20:26:20 :::HCHP 10 by which he is convicted", vis-a-vis, its including within its ambit, even the High Court, also, reiteratedly enjoins, this Court, to, transpose, the, afore rider, after, subsection (1) .
of Section 389 of the Cr.P.C., (g) and, also constrains, this Court, to, conclude, vis-a-vis, sub-section (3), of, Section 389, of, the, Cr.P.C., in addition, to, the first proviso, occurring, underneath, sub-section (1), of, Section 389, of, the Cr.P.C., it also operating, as, a, supplemental restriction, and, rider, upon, the Appellate Court concerned, in its exercising, its, discretion, and, jurisdiction to either release, the, convicts, on bail, or to, order, for, the suspension, of, terms, of, imprisonment, imposed, upon, him, during, the, pendency, of, the appeal, becoming cast, against, his conviction, and, consequent therewith imposition of sentence, upon, him by the learned trial Court concerned. Moreover, In making the afore view, this Court, draw succors, from a verdict, rendered by the Hon'ble Kerala High Court, in a case titled as Abdulla Haji vs. Food Inspector, Tellicherry Municipality, reported in 1986 CRI.L.J. 1193, relevant paragraph No.5 whereof stand extracted hereinafter:-
"5. Sub-Section (3) refers to the sentencing court. It could be either the trial court in the event of a conviction or an Appellate Court ::: Downloaded on - 21/12/2019 20:26:20 :::HCHP 11 which reversed an acquittal and, convicted the accused. Sub-Section (3) thus confers the power as much on the subordinate court as on the High Court in the event of a conviction specifically referred to under clauses (I) and .
(ii), provided the convicted person has been on bail during trial."
6. This Court places, on, record, its, appreciation, for, the, assistances rendered, by, Shri Ashwani Kumar, Sharma, Sr. Advocate, Mr. N.S. Chandel, Senior Advocate, and, Mr. Hemant Vaid, ld. Addl. A. G. Since, the, sentence, imposed, upon, the, sentencee, does, fall outside, the, ambit, of, clause (I), of, sub-section 3, of, Section 389, of, the, C.P.C., thereupon, when only, rather, special reasons, may enjoin, this Court, to afford, the, espoused relief, to, the, petitioner, and, whereas, when, the, requisite special reason, is, not extantly existing, thereupon, the, espoused relief, is, declined.
7. For, the, reasons, which have been recorded hereinabove, there, is, no merit, in, the, extant Cr.MP, and, it, is, dismissed accordingly.
(Sureshwar Thakur) Judge 19th December, 2019.
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