Bombay High Court
Suresh S/O. Hanmantrao Sonwane vs The State Of Maharashtra on 7 December, 2017
Bench: P.R. Bora
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
910 CRIMINAL APPLICATION NO.4951 OF 2017
IN
CRIMINAL REVISION APPLICATION NO. 228 OF 2017
SURESH S/O. HANMANTRAO SONWANE .. Applicant
VERSUS
THE STATE OF MAHARASHTRA ..Respondent
...
Advocate for Applicant : Shri Girish L. Awale
APP for Respondent - State : Shri A.V. Deshmukh
...
CORAM : P.R. BORA, J.
Dated: December 07, 2017
PER COURT :-
1. The revision applicant was prosecuted by the Court of
Judicial Magistrate, First Class at Ausa in Regular Criminal Case
No.206 of 2009 for the offences punishable under Sections 408 &
409 of the Indian Penal Code. The trial Court convicted the applicant
for both the said offences and sentenced him to suffer for each of the
said offence Rigorous Imprisonment for two years with fine of
Rs.5,000/-. Against the order of conviction passed by the trial Court,
the applicant preferred the Criminal Appeal No.55 of 2015. The
learned Additional Sessions Judge, Latur vide order passed on
12.07.2017 has dismissed the said appeal. Aggrieved by, the
applicant has filed the present Revision Application.
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2. Along with the Revision Application, the applicant has
filed the Criminal Application No.4951 of 2017 seeking suspension of
the execution of the sentence imposed upon him by the Courts below
and consequently to release him on bail.
3. On perusal of the order passed by the learned Additional
Sessions Judge, it is revealed that, the learned Additional Sessions
Judge while dismissing the appeal filed by the applicant has passed
further order that the bail bonds of the accused would continue till
further period of 6 months under Section 437-A of the Code of
Criminal Procedure (hereinafter referred to as the 'Code').
4. The order passed by the learned Additional Sessions
Judge as aforesaid is patently illegal. Section 437-A of the Code
reads thus :
"437-A. Bail to require accused to appear before the
next appellate Court.- (1) Before conclusion of the trial
and before disposal of the appeal, the Court trying the
offence or the appellate Court, as the case may be,
shall require the accused to execute bail bonds with
sureties, to appear before the higher Court as and
when such Court issues notice in respect of any appeal
or petition filed against the judgment of the respective
Court and such bail bonds shall be in force for six
months.
(2) if such accused fails to appear, the bond stand
forfeited and the procedure under section 446 shall
apply."
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From the language of Section 437-A of the Code, it is
apparent that, the said provision is applicable only in cases, where
the trial Court acquits the accused and it would not be applicable on
conviction of the accused. Vide the aforesaid order, the learned
Additional Sessions Judge has indirectly suspended the sentence after
decision of the appeal. It has to be stated that, the Code does not
confer any inherent jurisdiction on the lower appellate Court to
directly or indirectly suspend the sentence after decision of the
appeal. As held by this Court in the case of Dilip s/o. Ramchandra
Umare Vs. State of Maharashtra, 1996 CRI. L.J. 72, there is no
specific power conferred on the lower appellate Court under the Code
to suspend the sentence on decision of appeal against the Judgment
of conviction and sentence. There is neither any power of suspension
of sentence nor grant of bail implicit in the lower Appellate Court
after decision of the appeal against the Judgment of conviction and
sentence, nor such power is inherent. Once the lower appellate Court
hears and decides the appeal against the conviction and sentence
passed by the trial Court, it becomes functus officio and ceases to have
any power to suspend the sentence or grant bail even temporarily to
enable the accused to approach High Court by filing revision
application and to obtain appropriate orders from High Court.
5. Even earlier in some matters, it has been noticed that,
the Sessions Judges, Additional Sessions Judges, or lower appellate
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Courts are passing the orders invoking Section 437-A of the Code and
thereby releasing the convicted accused on bail under the said
provision. It is reiterated that, Section 437-A of the Code is
applicable only in cases, where the trial Court acquits the accused
after conclusion of the trial or the appellate Court in an appeal
against conviction acquits the accused. The said provision is inserted
in the Code so as to secure the appearance of the accused before the
next appellate Court, if any appeal is preferred against the order of
his/her acquittal.
6. In the present matter, the learned Additional Sessions
Judge, Latur has admittedly dismissed the appeal filed by the present
applicant and has thereby confirmed the order of conviction passed
by the trial Court. As mentioned herein above, the Code does not
confer any inherent jurisdiction on the lower appellate Court to
directly or indirectly suspend the sentence after decision of the
appeal. As such, the learned lower appellate Court must have taken
the applicant in custody and must have sent him to jail to undergo
sentence imposed upon him; instead the learned Additional Sessions
Judge has passed an erroneous order that, the bail bonds of the
accused would continue till further period of 6 months. It is apparent
that, the learned Additional Sessions Judge has misunderstood the
provision under Section 437-A of the Code. The said order, therefore,
needs to be set aside and quashed. Hence, the following order.
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ORDER
i) Sub-clause (2) of the order dated 12th July, 2017 passed in
Criminal Appeal No.55 of 2015 decided by the Additional Sessions
Judge, Latur whereby it has been directed that, the bail bonds of the
accused / appellant would continue till further period of six months
under Section 437-A of the Criminal Procedure Code, is quashed and
set aside.
ii) The applicant namely Suresh s/o. Hanmantrao Sonwane shall
surrender before the trial Court within two weeks from the date of
this order.
iii) If the above named applicant fails to surrender before the trial
Court within the stipulated period, the trial Court shall take coercive
steps for securing his presence and send him to jail for undergoing
the sentence of imprisonment imposed on him.
iv) The application filed by the applicant seeking suspension of the
execution of the sentence imposed upon him and for his release on
bail shall be listed for hearing only after surrender of the applicant
before the trial Court.
( P.R. BORA, J. )
ggp
