Trial Court Can't Grant Bail U/S 389 CrPC To Convicts After District Appellate Court Confirms Conviction, Sentence: Patna High Court

The above ruling came in a revision application preferred by the petitioners against the judgment passed in a Criminal Appeal by the Additional Sessions Judge-16, Sasaram, Rohtas affirming the judgment of conviction and order of sentence passed by Sub-Divisional Judicial Magistrate, Bikramganj whereby all the petitioners were sentenced to undergo imprisonment for two years for the offence punishable under Sections 379 IPC.

The petitioners had not surrendered after the conviction was affirmed by the District Appellate Court, and the revision application was filed without attaching the surrender certificate, as required by the Patna High Court Rules (PHC Rules).

The petitioners argued that provisional bail had been granted to them by the trial court for ninety days, enabling them to approach the High Court under its revisional jurisdiction. Therefore, they contended that they were not required to surrender even after the provisional bail period had ended.

The informant in the case raised a preliminary objection, stating that the trial court and the appellate court did not have the power to grant bail after the conviction and sentence had been affirmed. He also cited Rule 57A of the PHC Rules, which mandates surrender before a revision application can be posted 'for admission.'

One of the major questions that the Court deliberated on was, 'whether the trial court is empowered to grant bail to the convicted persons after the judgment of conviction and order of sentence has been affirmed by the District Appellate Court?'

To answer this question, the Court expounded upon Section 389 CrPC which talks about 'suspension of sentence pending appeal; release of appellant on bail'.

The Court noted that Section 389(1) empowers the appellate court for reasons to be recorded in writing to suspend the execution of the sentence or order appealed against and if the appellant is in confinement he can be released on bail.

It further noted that Section 389(3) says where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the trial court may suspend the sentence and release the convicted person on bail for such period to enable him to present an appeal and seek orders of the appellate court under Section 389(1) CrPC for suspension of sentence and for release on bail.

"In view of the aforesaid discussions, question no. (i) is answered in negative holding that the trial court is not empowered to grant bail to the convicted person after the judgment of conviction and order of sentence passed by the trial court has been affirmed by the District Appellate Court," Justice Sinha added.

Another crucial question was whether the District Appellate Court could suspend the sentence and grant bail post-appeal. 

The Court ruled that once the District Appellate Court decides the appeal, it loses jurisdiction and cannot suspend the sentence or grant bail. The Court emphasized that the District Appellate Court becomes functus officio in this matter, holding no authority to grant bail after the trial court's conviction and sentence have been affirmed.

Furthermore, the Court referred to Rule 57 of the Rules of Patna High Court, stating that a convicted person must surrender to the relevant court before their revision application can be considered for admission. The Court made it explicit that if the surrender certificate is not submitted within four weeks, the revision application will be dismissed without further review.

In light of these considerations, the Court upheld the interim bail of the accused while directing the petitioners to file the surrender certificate within four weeks from the date of the judgment.

Counsel/s For the Petitioner/s : Advocate Chhote Lal Mishra

Counsel/s For the Respondent/s: APP Akshay Lal Pandit

Counsel/s For the informant: Advocate Vikram Deo Singh

Citation: 2023 Livelaw (Pat) 125

Case Title: Shivjag Paswan v The State of Bihar

Case No: Criminal Revision No.176 of 2023

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