Sikkim High Court
Trilochan Kapoor Sharma vs State Of Sikkim on 19 May, 2023
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
DATED : 19th MAY, 2023
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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I.A. No.09 of 2023 in Crl.A. No.40 of 2018
Petitioner : Trilochan Kapoor Sharma
versus
Respondent : State of Sikkim
Application under Section 389(3) read with
Section 482 of the Code of Criminal Procedure, 1973
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Appearance
Mr. B. Sharma, Senior Advocate with Mr. Rajendra Upreti, Mr.
Safal Sharma and Ms. Shreya Sharma, Advocates for the
Petitioner.
Mr. Yadev Sharma, Additional Public Prosecutor with Mr. Sujan
Sunwar, Assistant Public Prosecutor for the Respondent.
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O R D E R (ORAL)
Meenakshi Madan Rai, J.
1. This is to consider an application under Section 389(3)
read with Section 482 of the Code of Criminal Procedure, 1973 (for
short "Cr.P.C."), filed by the Petitioner, who was convicted on 29-
09-2018, in Sessions Trial (Vigilance) Case No.01 of 2017, by the
Court of the Learned Special Judge, Prevention of Corruption Act,
1988, South Sikkim, at Namchi, which was upheld by this Court, in
Crl.A. No.40 of 2018, by Judgment dated 02-05-2023.
2. Learned Senior Counsel submits that the Petitioner
intends to prefer an Appeal before the Hon'ble Supreme Court
against the Judgment of this Court, upholding the Judgment and
Order on Sentence of the Learned Sessions Court, as detailed
supra. That, in view of the said circumstance, the sentence may
be suspended for at least three months and the Petitioner be
I.A. No.09 of 2023 arising out of Crl.A. No.40 of 2018 2
Trilochan Kapoor Sharma vs. State of Sikkim
allowed to continue on the same Bail Bonds. Relying on Popular
Muthiah vs. State, represented by Inspector of Police Learned Senior
Counsel submits that this Court can exercise its inherent power
irrespective of the nature of the proceedings and it is not
trammelled by procedural restrictions. That, the power can be
exercised suo moto in the interest of justice and concurrently with
the appellate or revisional jurisdiction for which no formal
application is required. That, in R. P. Kapur vs. State of Punjab2
referred to in the said Judgment supra, the Supreme Court has
observed that inherent power should be exercised by the High
Court. Hence, in light of the said provisions although Section
389(3) of the Cr.P.C. may not be applicable to the facts and
circumstances of the case, the Court may exercise its inherent
powers to suspend the sentence to afford the Petitioner an
opportunity to approach the Hon'ble Supreme Court, in the
interest of justice.
3. Objecting to the petition, Learned Additional Public
Prosecutor submits that in the first instance the provisions of
Section 389(3) of the Cr.P.C. are not applicable to the instant
matter. Secondly, the Supreme Court is not an appellate forum
under Article 136 of the Constitution of India and in this view of the
matter the question of filing an appeal before the Supreme Court
against the impugned Judgment and Order on Sentence of this
Court does not arise. To buttress his submissions, he has placed
reliance on the decision of the Full Bench of the Hon'ble Kerala
High Court in Mammooty and Others vs. Food Inspector and Others3.
(2006) 7 SCC 296
AIR 1960 SC 866
AIR 1987 Kerala 270
I.A. No.09 of 2023 arising out of Crl.A. No.40 of 2018 3
Trilochan Kapoor Sharma vs. State of Sikkim
4. I have heard the submissions of Learned Counsel in
extenso and perused the citations relied upon by the parties.
5. To address the arguments of Learned Senior Counsel
for the Petitioner, in the first instance the question of the Petitioner
being allowed to continue in the same Bail Bonds furnished before
this Court cannot be countenanced, as on his conviction being
upheld his Bail Bonds stood cancelled and he was taken into
judicial custody. Secondly, even if the provisions of Section
389(3) of the Cr.P.C. were to be applied then ninety days would
obviously not be granted for filing an appeal, bearing in mind the
laws of limitation.
6. Be that as it may, the Full Bench of the Kerala High
Court while expounding the provisions of Section 389 of the Cr.P.C.
and of Article 136 of the Constitution of India inter alia held that;
"12A. What exactly is the nature of an appeal
by special leave? In Durga Shankar Mehta v.
Raghuraj Singh, AIR 1954 SC 520, Mukherjea J., (as
he then was) speaking for a Bench of five Judges
observed that powers under Art. 136 are in the nature
of special or residuary powers which are exercisable
outside the purview of ordinary law in cases where
needs of justice demand interference by the Supreme
Court of the land. Article 136 is worded in the widest
term possible. It vests in the Supreme Court plenary
jurisdiction in the matter of entertaining and hearing
appeals, by granting special leave, against any kind of
judgment or order made by a court or tribunal in any
case or matter and the powers could be exercised in
spite of the specific provisions for appeal contained in
the Constitution or other laws. ................................
In Arunachalam v. P.S.R. Setharathnam, AIR 1979 SC
1284 : (1979 Cri LJ 875), the Court cautioned that
the power vested in the Supreme Court under Art.
136 is not to be confused with ordinary appellate
power exercised by appellate courts and tribunals
under special statutes. It is plenary power exercisable
outside the purview of ordinary law and meant to
meet the pressures of demand of justice. It neither
confers on anyone the right to invoke the jurisdiction
of the Supreme Court nor inhibits anyone invoking the
jurisdiction of the Supreme Court. Power is vested in
the Supreme Court but right to invoke the court's
jurisdiction is vested in no one. ................................
I.A. No.09 of 2023 arising out of Crl.A. No.40 of 2018 4
Trilochan Kapoor Sharma vs. State of Sikkim
13. Supreme Court under Art. 134 of the
Constitution or Ss. 374(1) and 379 of the Code is an
appellate court. However, Supreme Court, exercising
discretionary power under Art. 136 of the Constitution
is not a court exercising ordinary appellate power.
Hence it follows that Supreme Court exercising
jurisdiction under Art. 136 of the Constitution is not
an appellate court as contemplated in sub-s. (1) of S.
389 of the Code. Sub-sections (1) and (3) of S. 389
are part of a scheme; sub-section (1) enables the
appellate court to suspend sentence and grant bail in
all cases, though for reasons to be recorded in writing
while sub-s. (3) confers on the convicting court a
limited power in a narrower field to grant bail to a
convicted person to afford him an opportunity to
present an appeal and obtain orders of the Appellate
Court. Sub-section (3) takes colour from sub-s. (1). If
a case does 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). If in these cases sub-s. (1) is not attracted, and
we are of the opinion that it is not attracted, sub-s.
(3) also cannot have any operation. Hence petitioners
cannot seek bail under sub-s. (3) of S. 389 of the
Code.
14. Sub-section (3) of S. 389 of the Code
requires the convicted person to satisfy the court by
which he is convicted that "he intends to present an
appeal". The purpose of conferring on the convicting
court the power to grant bail is to "afford sufficient
time to present an appeal and obtain orders of the
Appellate Court under sub-s. (1)". Petitioners have no
right of appeal. They can only move the Supreme
Court for special leave to appeal under Art. 136 of the
Constitution. Learned counsel for the petitioners
would contend that the words "present an appeal" do
not presuppose the existence of a right of appeal and
that existence of a provision for appeal would be
sufficient. They also rely on the reasoning in Abdulla
Haji's case (1986 Cri LJ 1193) based on the change of
language in the provision compared to the parallel
provision in the old Code. The words "intention to
present an appeal", 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.
.................................... In the words of Krishna Iyer, J.
in Arunachalam's case (AIR 1979 SC 1284) "after
leave appeal is born". From this it does not follow that
what a person originally presents as a special leave
petition is actually an appeal or memorandum of
appeal. The birth of the appeal takes place on the
grant of special leave. Special leave petition, on leave
being granted, is treated as an appeal. He has to
satisfy the Supreme Court that it is a fit case for grant
I.A. No.09 of 2023 arising out of Crl.A. No.40 of 2018 5
Trilochan Kapoor Sharma vs. State of Sikkim
of special leave and then only urge his appeal before
the Court. Power under Art. 136 is a discretionary and
extraordinary power outside the purview of ordinary
law and has no resemblance to an ordinary appellate
power. The Supreme Court exercising jurisdiction
under Art. 136 is not a regular court of appeal. It
cannot be said that there is no difference between
"presenting an appeal" and "presenting a special
leave petition"."
7. The matter has been expounded with clarity in the
above ratio and requires no further elucidation. I am in respectful
agreement with the above extracted observations. The
circumstances in the present case are squarely covered by the
discussions and observations made in Mammooty (supra).
8. In view of the above legal position and considering the
facts and circumstances of the instant case, the petition deserves
no consideration and is accordingly dismissed.
( Meenakshi Madan Rai )
Judge
19-05-2023
Approved for reporting : Yes
ds
