JUDGMENT - Joshi V.V., J.- This application filed under the provisions of sec­tion 389 (3) of the Criminal Procedure Code, 1973, by the applicant (original accused) raises an interesting question. 2. The applicant was tried by the Chief Judicial Magistrate, Amravati, in Criminal Case No. 3448 of 1974 for the offence punishable under section 325 of the Indian Penal Code and was sentenced to pay only a fine of Rs. 150 (in default of payment of fine to undergo rigorous imprisonment for one month). Aggrieved by this decision, the State of Maharashtra preferred an appeal to this Court under the provisions of section 377 of the Criminal Procedure Code, 1973. That was Criminal Appeal No. 309 of 1979. This Court after hearing that appeal confirmed the finding of conviction under section 325 of the Indian Penal Code and observed that the sentence imposed for the offence by the trial Court was an illegal sentence in the sense that there had to be a sentence of imprisonment along with sentence of fine and, therefore, this Court allowed that appeal and enhanced the sentence under sec­tion 325 of the. Indian Penal Code, on the applicant to a sentence of rigorous imprisonment for one year maintaining the fine of Rs. 150 and the default punishment. The judgment of this Court was delivered on 18-9-1981. While hearing that appeal no request was made on behalf of the applicant for being granted time to surrender and, therefore, this Court passed an order that the applicant shall surrender to his bail. Thereafter a warrant of arrest of the applicant for execution of the sentence imposed by this Court appears to have been issued against the applicant and it is thereafter on 5-10-1981 that the present application came to be filed in this Court by the applicant praying that he may be released on bail under the provisions of section 389(3) of the Criminal Procedure Code, 1973. 3. I have-heard the counsel on either side. The question is whether the provisions of section 389(3) of the Criminal Procedure Code, 1973 can be said to be applicable to the present case. 3. I have-heard the counsel on either side. The question is whether the provisions of section 389(3) of the Criminal Procedure Code, 1973 can be said to be applicable to the present case. That sub-section is in following terms: “389 (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 (i); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.” The short point for consideration is whether in the circumstances of this case, it can be said that the applicant has been “convicted” by this Court, when merely this Court has affirmed his conviction by the trial Court for the offence punishable under section 325 of the Indian Penal Code, and has enhanced the sentence by imposing a sentence of rigorous imprisonment for one year in addition to the only sentence of fine imposed upon him by the trial Court. 4. Here it is interesting to notice the judicial history of this provision. The original provision under the Criminal Procedure Code, 1898, was sec­tion 426, which originally had only three sub-sections which were as follows : “426. (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 any appeal by a convicted person to a Court subordinate thereto. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of any appeal by a convicted person to a Court subordinate thereto. (3) When the appellant is ultimately sentenced to imprisonment, or imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.” There was a view that the High Court could grant bail under the provisions of section 426 of the Criminal Procedure Code, 1898, even in respect of a sentence imposed by the High Court pending an appeal to the higher Court. The view prevailed that the High Courts in India could take such steps in exercise of the own inherent powers under section 561A of the Criminal Procedure Code, 1898. This view, however, was set at rest by the decision of the Privy Council in (Kala Jairam Das v. Emperor)1, where it was observed : “The only granting of bail which is referred to in that chapter (which consists of sections 496 to 502 inclusive) is the granting of bail to accused persons. There is no reference therein to the granting of bail to persons who have been tried and convicted. The code confers no power on a High Court to grant bail in the case of a convicted person except under sec­tion 426. Hence, a High Court in India has no power to grant bail to a person who has been convicted and sentenced to imprisonment, and to whom His Majesty in Council has given special leave to appeal against his conviction or sentence.” 5. Thereafter the Legislature by Act IV of 1946 introduced sub-sec­ tions (2-A) and (2-B) in section 426 of the Code of Criminal Procedure, 1898. Thereafter the Legislature by Act IV of 1946 introduced sub-sec­ tions (2-A) and (2-B) in section 426 of the Code of Criminal Procedure, 1898. These sub-sections were as follows: “(2-A) When any person other than a person convicted of a non-bailable offence is sentenced to imprisonment by a Court, and an appeal lies from that sentence, the Court may, if the convicted person satisfies the Court that he intends to present an appeal, order that he be released on bail for a period sufficient in the opinion of the Court to enable him to present the appeal and obtain the orders of the Appellate Court under sub-section (i) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (2-B) Where a High Court is satisfied that a convicted person has been granted Special Leave to appeal to the Supreme Court against any sentence which the High Court has imposed or maintained, the High Court may, if it so thinks fit, order that pending the appeal the sentence or order appealed against be suspended, and also, if such person is in con­finement, that he be released on bail.” The Law Commission in its 41st report recommended the omission of sub­section (2-B) of section 426 of the Code of Criminal Procedure, 1898, because party who has taken trouble and incurred necessary expenditure for obtaining Special Leave from the Supreme Court could easily request that Court while granting Special Leave to give appropriate interim relief. The Legislature, it appears, accepted this recommendation of the Law Commission and, therefore, the provisions of sub-section (2-B) of section 426 of the old Code of 1898 were dropped when framing the present Criminal Procedure Code, 1973. 6. This legislative history of the provision, and more particularly the decision of the Privy Council in Lola Jairam Das v. Emperor (cited supra), necessarily leads to the conclusion that the power of granting bail to a convict­ ed person must flow from the provisions of the present section 389 of the Criminal Procedure Code, 1973, and this Court has no powers in exercise of its inherent jurisdiction under section 482 of the Criminal Procedure Code, in that respect. 7. 7. However, Shri N. S. Kherdekar, for the applicant contends that the power to release the present applicant must necessarily flow in the present case from the provisions of section 389(3) of the Criminal Procedure Code, 1973, which maintains substantially intact the provisions of section 426(2-A) of the Code of Criminal Procedure, 1898. It is difficult to accept this conten­tion for the simple reason that the words used in sub-section (3) of section 389 of the Code of Criminal Procedure, 1973, appear to be substantially different from the words used in sub-section (2-B) of section 426 of the Code of Criminal Procedure, 1898. The words used in section 426(2-A) of the Code of Criminal Procedure, 1898 were “when any person other than a person convicted of a non-bailable offence is sentenced to imprisonment by a Court and an appeal lies from that sentence, the Court may, if the convicted person satisfies the Court “......The words in sub-section (3) of section 389 of the Code of Criminal Procedure, 1973, are “where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal.........” The difference in phraseology is obvious and cannot escape attention. 8. The main question is whether it can be said that in the present case this Court is the Court by which the applicant was “convicted”. It would seem to me that the applicant in the present case was convicted by the trial Court and this Court while dealing with the appeal by the State for enhance­ ment of the sentence filed under section 377 of the Criminal Procedure Code, 1973, merely confirmed that conviction. If that view is taken, then it cannot be said that the applicant was convicted by this Court. If this interpretation be acceptable, then it is clear, the provisions of section 389(3) of the Criminal Procedure Code, 1973, would have no application to the present case. 9. Shri Kherdekar contends that this Court did not merely affirm or confirm the finding of the lower Court, but in view of the provisions of sec­ tion 377 (3) of the Criminal Procedure Code, 1.973, this Court was required to appreciate the evidence independently and to arrive independently at its own finding of the conviction of the applicant for the offence charged against him. Therefore, it is alleged, it can be said that this Court “convicted” the appli­ cant for the offence under section 325 of the Indian Penal Code. Even grant­ ing that this Court while dealing with an appeal for enhancement of the sen- tence filed under section 377 of the Criminal Procedure Code, 1973, had to appreciate the evidence and decide afresh the question of guilt of the appli­ cant, still there is no escape from the position that the conviction in the first instance was effected by the trial Court and this Court even after re-apprecia­ tion of the evidence and hearing the appeal on merits merely confirmed the finding of conviction reached by the trial Court. 10. The next contention of Shri N. S. Kherdekar, is that the term ”convicted” has not been defined anywhere in the Criminal Procedure Code, 1973, and this term implies two concepts, first the finding of proof of guilt against the accused and secondly the sentence of the accused so found guilty to appropriate punishment. Therefore, if this Court for the first time imposed a sentence of imprisonment on the applicant for the offence punishable under section 325 of the Indian Penal Code, it could equally be said that this Court had “convicted” the applicant so as to bring the case of the applicant with in the ambit of the provision of s;ction 389(3) of the Criminal Procedure Code, 1973. It is again difficult to accept this line of argument for the simple reason that the concept of “conviction” may not necessarily include the “sentencing” part. That is apparent because when dealing with a case under the provisions of section 360 of the Criminal Procedure Code, 1973, the Court after arriving at,a finding of “conviction” has to consider whether the accused can appro­priately be released on probation of good conduct and if the Court decides to do so, then the Court has to release him on execution of the requisite bond, '*instead of sentencing at once to any punishment”. Therefore, the concept of “conviction” must necessarily exclude the concept of “sentencing”. 11. Finally it is urged that the view I am taking might leave a person in the position of the applicant, absolutely helpless. He must necessarily surrender to custody in spite of his intention and endeavour to appeal against the sentence of imprisonment imposed on him, to the Supreme Court. 11. Finally it is urged that the view I am taking might leave a person in the position of the applicant, absolutely helpless. He must necessarily surrender to custody in spite of his intention and endeavour to appeal against the sentence of imprisonment imposed on him, to the Supreme Court. I do not think that contention is right. At the time of hearing the appeal on merits, i.e. the Criminal Appeal No. 309 of 1979, and before (he last word was said in the judgment in that appeal, it was open for the applicant to have orally or in writing prayed for being granted time to surrender, which this Court could easily have granted when it was still having the seisin of the appeal. The sole difficulty is, now after having finally disposed of the appeal, this Court has become functus officio and it finds itself helpless to assist the applicant who has not taken care at the requisite time, help himself. 12. I find no substance in this application which is, therefore, rejected. Application for bail rejected.