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2007 DIGILAW 133 (JK)

Roma Devi v. Rishi Kumar

2007-07-23

NIRMAL SINGH

body2007
1. Roma Devi had filed a complaint against Rishi Kumar and Anchalla Devi under Section 494 read with Section 109 of RPC. Learned Additional Sessions Judge, Kishtwar, acquitted both the respondents vide its order dt. 10th of May01. Roma Devi accordingly filed an appeal against the acquittal before this court. Vide order dt. 25th of May07, this court upheld the order of acquittal passed in favour of respondent Anchalla Devi but the appeal qua respondent Rishi Kumar was accepted and he was convicted under Section 494 RPC. Vide order dt. 3rd of July07, Rishi Kumar was directed to undergo Rigorous imprisonment for a period of two years with a fine of Rs. 10,000/-. In default of payment of fine, Rishi Kumar was to undergo further RI for a period of three months. On the said date, Rishi Kumar who was present in court was taken into custody and committed to jail to undergo the sentence. 2. The convict-Rishi Kumar has not moved any application for the suspension of sentence and enlarging him on bail for filing SLP before the Supreme Court and instead the present application has been moved for the said purpose by one Khem Chander, S/o Late Bansi Lal, who is said to be the nephew of convict Rishi Kumar. 3. The first question, which arises for determination is whether an application filed by a third parity without any authorization is maintainable? 4. The sentence can be suspended pending an appeal under Section 426 of the Code of Criminal Procedure, Svt.1989. This Section reads as follows:-- "426. Suspension of sentence pending 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. (I-a) The Appellate Court may cause any person who has been released on hail under sub-section (1) to be arrested and may commit him to custody. (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. (I-a) The Appellate Court may cause any person who has been released on hail under sub-section (1) to be arrested and may commit him to custody. (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-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 satisfied 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 (1) and the sentence of imprisonment shall, so long as he is so released on bail, he deemed to be suspended. (2-b) Where the High Court is satisfied that a convicted person has been "granted special leave to appeal to the Supreme Court a most any sentence which the High Court has imposed or maintained, the High Court may, if it so thinks Jit, 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. .............." 5. A perusal of the said Section shows that only the person convicted has a right to file an application for the suspension of the sentence or the convicted person can authorize any other person in this regard by giving a power of attorney to the said person. In the present case, no such power has been given by the convict Rishi Kumar to the applicant herein to file the present application. Hence, this application filed by applicant-Khem Chander, without obtaining any power of attorney in this regard from convict Rishi Kumar, is not maintainable. 6. Even otherwise, this court cannot suspend the sentence. The sentence was awarded on 3rd of July07. The file has been consigned to records. After the file has been consigned to record, this court becomes functus officio. In 1986 Cri LJ 1197, KM Salim v. State of Kerala, it has been held as under:-- "S.359 of the Code enables the suspension of sentence pending appeal and the release of the accused on ball. The file has been consigned to records. After the file has been consigned to record, this court becomes functus officio. In 1986 Cri LJ 1197, KM Salim v. State of Kerala, it has been held as under:-- "S.359 of the Code enables the suspension of sentence pending appeal and the release of the accused on ball. The appellate court can for reasons to be recorded in writing, order that the execution of the sentence is suspended if he is in confinement he be released on bail. If the appeal lies to a Subordinate court, the High Court may even then, exercise this power. When the convicted person satisfied the trial court, that he intends to present an appeal, the trial court is empowered in certain specific cases to release the convicted person on bail and to suspend the sentence. S.389 therefore postulates a right of appeal to the convicted person and the power of the appellate court to suspend sentence arises and that of the trial court ceases when the appeal is filed. When the High Court, in appeal, confirms the sentence, there is no further appeal to the Supreme Court except as specifically provided in Art.134 of the Constitution. When there is no appeal as of right, S.389 has no application." 7. The provisions of Section 389(3) of the Central Code of Criminal Procedure are pari materia to Section 426(2-a). Therefore, after the disposal of the appeal and also when the convict has not shown any intention to present any appeal, the provisions of Sec.426 (2-a) would have no application. 8. A Full Bench of Kerala High Court in the case reported as Mammothy and others v. Food Inspector and others, AIR 1987 Kerala 270, has held as under:-- "The High Court has no power to grant bail under sub-S.(3) of S.389 to persons acquitted by the trial court and who have been convicted by the High Court in reversal of the acquittal, though conviction is in regard to bailable offence or sentence is for a term not exceeding three veers. Similarly, 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. Similarly, 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. In such cases the convicted persons who have no right of appeal in view of S.376(a) cannot claim benefit of sub-S.(3) on the ground that they intend to move the Supreme Court for special leave to appeal because the Supreme Court exercising jurisdiction under Art.136 is not an appellate court as Contemplated sub-s.(1) of S.389 and if sub-s.(1) is not attracted sub-s.(3) also cannot have any operation. Sub sections (1) and (3) of S.389 are part of a scheme; sub-s. (1) enables the appellate Court to suspend sentence and grant bail in all cases, though for reasons to be recorded ii writing while sub-s.(3) confers on the convicting court a limited power ii a narrower field to grant bail to a convicted person to afford him a opportunity to present an appeal and obtain orders of the Appellate. Sub-Section (3) takes colour from sub-section (1). If a case docs not attract provisions of sub-s.(1), it cannot attract provisions of sub-s.(3). Cases covered by sub-S.(3) will fall under sub-s.(1) though all cases falling under sub-s.(1) may not attract sub-s.(3). Further the words "intends to present an appeal" in sub.s.(3) in their, ordinary grammatical sense would mean that the person has a right of appeal and intends to present an appeal. A person cannot intend to present an appeal if he has no right of appeal. He may move the Supreme Court for special leave to appeal and when special leave is granted it can be said that there is an appeal by him. Moreover, it is to be seen that the legislature has used the words "intends to present an appeal" and "intends to present a petition under Art.136 of the Constitution " in the Code distinctly and differently to cover different situations..." 9. In the present case, there is no declaration by the convict Rishi Kumar that he intends to file an appeal or that he has not already filed an appeal before the Apex Court. In the present case, there is no declaration by the convict Rishi Kumar that he intends to file an appeal or that he has not already filed an appeal before the Apex Court. This application, as indicated above has been filed by one Khern Chander, who claims himself to be the nephew of convict Rishi Kumar, and as stated above, there is no rower of attorney by the convict in favour of the aforesaid Khem Chander to file the present application on his behalf. The convict was taken into custody on 3rd of July 07. During this period, he might have already filed the SLP before the Apex Court and the said court might have been seized of the matter. 10. For the reasons mentioned above, I am of the view that this Court has no jurisdiction to suspend the sentence. Hence, the application has no merit and the same is dismissed.