On reference to operative order of learned Sessions Judge, it is evident that while delivering the judgment on February 3, 2003, learned Sessions Judge ordered the petitioner to surrender his bail bond before the Trial Court- COM Nanded, on February 10, 2003 to undergo remaining part of the sentence. {Para 12}
13. In this context, a reference may be made to a judgment of this High Court (Coram R.M. LODHA, J.) in Dilip v. State of Maharashtra MANU/MH/0110/1995 : 1996(2)MhLj1004 , and more particularly contents in Paras. 5 and 7 of the judgment. It is evident that lower appellate Court after confirming the conviction, has no power to suspend the sentence, even if appellant may express his desire to prefer revision against the said conviction. The order directing the appellant accused to surrender after a week, in effect, resulted into suspension of sentence, by granting him some time to surrender.
14. Reading proviso to Section 387 of the Criminal Procedure Code, it may be argued that, it is not mandatory upon the appellate Court to direct the accused to be brought up or required to attend, to hear the judgment delivered because of the words "shall not" incorporated in the proviso. However, this proviso is required to be read in the light of Section 387 read with Sections 353(5) and 353(6). Provisions regarding the judgment, as contained in Chapter XXVII of the Criminal Procedure Code are applicable to the judgment of subordinate appellate Court and in Section 387 also the words used are "shall apply". The proviso to Section 387, therefore, shall stand controlled by the provisions contained in Sections 353(5) and 353(6) and, therefore, the subordinate appellate Court will be obliged to secure the presence of accused/appellant before it for pronouncement of judgment except in the cases wherein the judgment is of acquittal or one of fine only. Once the presence of appellant-accused is secured or the purpose of pronouncement of judgment confirming the conviction with substantive sentence, as: observed in the matter of Dilip v. State of Maharashtra (supra), the Subordinate Appellate Court would become functus officio and cannot suspend the sentence or grant bail in order to enable the accused to prefer revision before the High Court. The only course available, therefore, would be to execute the order of conviction confirmed by it, leaving the accused to obtain suspension of sentence and bail from the High Court by preferring appropriate revision.
15. On reference to criminal manual of instructions issued by the High Court of Judicature, Appellate Side, Bombay, for the guidance of criminal Courts and officers subordinate to it, the same contains Form XV regarding "warrant to jailor, in the case of a prisoner at first released on bail pending the f disposal of appeal to the Appellate Court, but subsequently rearrested in Court on the dismissal of the appeal or reduction or alteration of sentence, and forwarded to jail to undergo the remaining portion of the sentence". The contents of the warrant clearly indicate that the warrant is to be issued by the Court confirming the conviction and accused appellant cannot be directed to surrender to the trial Court for issuance of conviction warrant.
IN THE HIGH COURT OF BOMBAY
Cr. R.A. No. 57/2003
Decided On: 14.02.2003
Moinoddin Vs. State of Maharashtra
Hon'ble Judges/Coram:
N.V. Dabholkar, J.
Citation: 2003 LLJ BOM 2 1040, 2003 BLR 2 296, 2003 SCC ONLINE BOM 170, 2003 LLN 2 479, 2003 FLR 98 634,MANU/MH/0394/2003.
Print Page
