BHASKARAN v. STATE OF KERALA — 1986 DIGILAW 138 (KER)

Judgment :- 1. Petitioners were accused 1 to 4 and 6 in S. C. 15/83 on the file of the Sessions Judge, Trichur. They were charge-sheeted along with four other accused for various offences including S.302 read with S.149 IPC. Sessions Judge acquitted all of them. In Crl. A. No. 373 of 1983 this Court set aside the acquittal as against the petitioners. They were convicted for the various offences including S.302 read with S.149 IPC and each of them was sentenced to suffer imprisonment for life. The present petition purporting to have filed under S.389 (3) of the Code of Criminal Procedure and Art.134 (1) (a) of the Constitution of India read with the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 (Act 28 of 1970) is for suspending the sentence and enlarging the petitioners on bail. They say that they intend to take up the matter in appeal to the Supreme Court. We heard the counsel for the petitioners and the Director of Public Prosecutions on behalf of the State. 2. The petition was filed mainly under S.389(3) of the Code. S.389 contains provisions enabling the appellate court, the High Court as well as the convicting court to order suspension of execution of the sentence and if the accused is in confinement, to direct him to be released on bail or bond. Sub-s. (1) of S.389 confers the above power on the appellate court and by virtue of sub-s. (2) the said power could be exercised by the High Court even when it is not the appellate court but the appeal is only to a court subordinate to it. We are not very much concerned with sub-ss. (1) and (2). What we are concerned with is only sub-s. (3) which deals with the power of the convicting court. It is undoubted that sub-s. (3) can have application only in cases covered by sub-s. (1) which includes sub-section (2) also. But all cases covered by sub-ss. (1) and (2) will not come under sub-s. (3). Sub-s. (3) confers only a restricted power to the convicting court to suspend sentence and grant bail. That is to afford the convicted person an opportunity to present an appeal and obtain orders from the appellate court. For that purpose he will have to satisfy the convicting court that he intends to present an appeal. Sub-s. (3) confers only a restricted power to the convicting court to suspend sentence and grant bail. That is to afford the convicted person an opportunity to present an appeal and obtain orders from the appellate court. For that purpose he will have to satisfy the convicting court that he intends to present an appeal. So also sub-s. (3) could be invoked only in cases where the convicted person is on bail and sentenced to imprisonment for a term not exceeding three years or where the offence for which he has been convicted is bailable and he is on bail. These restrictions are not there in sub-ss. (1) and (2). While the appellate court including the High Court could exercise the powers under sub-ss. (1) and (2) of S.389 in any case of conviction, the jurisdiction of the convicting court under S.389 (3) is limited to cover cases coming under clauses (i) and (ii) alone which are comparatively short term sentences. The ease in hand does not cover clauses (i) and (ii) of S.389 (3). The sentence awarded is imprisonment for life and conviction is for offences not bailable. Therefore the prayer under S.389 (3) has to be rejected outright. 3. Powers of courts are the creations of statute save those coming under the inherent powers. Normally when a court finally disposes of a case it becomes divested of the matter and becomes functus officio to deal with it in any manner except to the extent allowed and authorised by specific provisions. Thereafter jurisdiction is only with the higher court which is competent to sit in judgment over it. This Court has finally disposed of the criminal appeal convicting and sentencing the petitioners. S.389 (3) is the only provision under which this Court could have acted as the convicting court. That provision is evidently not applicable to the case in hand. That means there is complete lack of jurisdiction to entertain a prayer of the nature contained in the petition. No other provision is there authorising this Court to deal with a situation as the one before us. 4. The matter is directly covered by a Full Bench decision of this Court in Mammootty & Others v. Food Inspector & Others (1986 KLT 113). But the learned counsel for the petitioners would argue that a case of the nature in hand was not covered or contemplated by that decision. 4. The matter is directly covered by a Full Bench decision of this Court in Mammootty & Others v. Food Inspector & Others (1986 KLT 113). But the learned counsel for the petitioners would argue that a case of the nature in hand was not covered or contemplated by that decision. According to the counsel that decision considered only a case where there is no right of appeal to the Supreme Court and appeal is only subject to the Special Leave to be granted by the Supreme Court whereas the case in hand is one in which there is right of appeal without Special Leave. It is true that the appellate jurisdiction of the Supreme Court under Art.134 (1) of the Constitution has been enlarged by the provisions of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 (Act 28 of 1970) which says that without prejudice to the powers conferred on the Supreme Court by clause (1) of Art.134 (1) of the Constitution, an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court, if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to imprisonment for life or to imprisonment for a period not less than ten years. The fact that there is an appeal as of right by itself cannot invest this Court with a jurisdiction which it is not otherwise having under S.389 (3). The above Full Bench decision held: "We therefore hold that the High Court has no power to grant bail under sub-section (3) of S.389 of the Code to persons acquitted by the trial court and who have been convicted by this Court in reversal of the acquittal, though conviction is is regard to bailable offence or sentence is for a term not exceeding three years. We also hold that the High Court has no power to grant bail under this provision to persons convicted and sentenced by the trial court where the conviction and sentence have been affirmed by it". 5. In our opinion, whatever be the situation, S.389 of the Code is not intended to cover cases of appeal to the Supreme Court, whether it is as of right, by Special Leave or by Certificate granted by this Court. 5. In our opinion, whatever be the situation, S.389 of the Code is not intended to cover cases of appeal to the Supreme Court, whether it is as of right, by Special Leave or by Certificate granted by this Court. S.389 covers only cases of appeal under the Code and not under the Constitution or any other provision. Supreme Court is not a criminal court as enumerated under S.6 of the Code though that provision treats the High Court also as a class of criminal court. Art.132(1),132(3),134 read with the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act 28 of 1970,134A and 136 of the Constitution as well as Ss 374 and 379 of the Code are the only provisions enabling an accused convicted and sentenced for an offence to approach the Supreme Court. Under S.374 (1) and 379 of the Code and under Art.134 read with the provisions of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, the Supreme Court may be an appellate court. Otherwise Supreme Court is not an Appellate Court as contemplated under S.389 (1) of the Code and the provisions of S.389 are not applicable in the case of appeals to the Supreme Court. This is clear from the provisions of the Code itself. In cases of appeal to the Supreme Court the powers of the High Court are specifically enumerated in S.415 of the Code. These powers do not cover suspension of sentence or release on bail covered by S.389(3). If S.389 (3) covered cases of appeal to the Supreme Court also there would not have been any necessity for a separate provision as contained in S.415. 6. Art.145 of the Constitution authorises the Supreme Court to make rules for regulating generally its practice and procedure. 0.21 R.6 of the Rules framed under that provision says that application for bail shall not be listed for hearing in the Supreme Court unless the petitioner has surrendered to the sentence except where the Supreme Court orders to the contrary. That indicates that what is contemplated is surrender to the sentence and exception to this is only within the discretion of the Supreme Court and not the High Court to allow. This provision as well as S.415 of the Code also indicate that S.389(3) is not intended to meet such situations. That indicates that what is contemplated is surrender to the sentence and exception to this is only within the discretion of the Supreme Court and not the High Court to allow. This provision as well as S.415 of the Code also indicate that S.389(3) is not intended to meet such situations. On the basis of the foregoing discussions, we are of opinion that the prayer is not within the competence of this Court to allow. The petition is therefore dismissed. Dismissed.