UTHAMAN Vs. STATE OF KERALA

JUDGEMENT

(1.) This petition to enlarge the petitioners on bail pending disposal of the appeal before this court has been referred by a Division Bench of this Court for hearing by Full Bench as the Division Bench doubted the correctness of the decision in Rajan v. State of Kerala1. The petitioners have been convicted by the Sessions Judge, Trichur in Sessions Case No. 77 of 1981. The petitioners 1 and 2 have been sentenced to undergo life imprisonment for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and the 3rd petitioner has been convicted under Section 448 of the Indian Penal Code and sentenced to undergo simple imprisonment for 3 months. The 3rd petitioner has been granted bail by order dated 4-3-1982, and therefore we are concerned only with the motion for bail by petitioners 1 and 2. The petitioners were on bail during-the trial. It is the case of the petitioners that the right to be enlarged on bail should not be adjudicated on the basis of the approach made in the decision in Rajan v. State of Kerala (supra).

(2.) Counsel for the petitioners Sri P. V. Aiyappan drew our attention to certain observations made in paragraph 9 of the judgment in Rajan v. State of Kerala and urged that, if these observations are allowed to stand, in every case where there is a conviction and sentence of life imprisonment a motion for bail would be a mere formality, as that would necessarily be rejected on the premises that once a person is convicted he must be found to be prima facie guilty of commission of an offence punishable with imprisonment for life and that would be sufficient to dismiss the plea for bail.

(3.) Power is conferred on an appellate Court by Section 389 of the Code of Criminal Procedure to order suspension of the execution of the sentence appealed against and if the accused be in confinement to release him on bailor on his own bond. Under sub-section (2) of the section the power conferred on an appellate court may be exercised also by the High Court it the case of an appeal by a convicted person to a court subordinate thereto. Under sub-section (1) the suspension of the execution of sentence and release on bail must be ordered for reasons to be recorded by the court in writing. What those reasons could be is not specified in the section. Section 436 deals with bail in bailable offences. Section 437 deals with bail in case of non-bailable offences. Section 439 concerns special powers of High Court or Court of Sessions regarding bail. These are the provisions with which we are directly concerned in this case. Section 436(1) expressly excludes the High Court or a court of Sessions from its scope. It limits the power of the court to release a person accused of or suspected of commission of a non-bailable offence. The court is not empowered to release such a person if there is reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life. Section 439 which confers power on a High Court or it court of Sessions to release a person on bail enables the court to direct such release without any limitations as in the case of a court directing release under Section 437(1). In other words on the terms of Section 439(1) there is no prohibition in the High Court or court of Sessions in releasing a person accused of or a person suspected of the commission of a non-bailable offence merely because there is reasonable ground for believing that the person has been guilty of an offence punishable with death or imprisonment for life. This essential distinction notwithstanding, a practice had grown up where persons accused of or suspected of commission of offences punishable with death or imprisonment for life are not generally released on bail even by the court of Sessions or the High Court. But that docs not mean that the High Court has no jurisdiction to order release under Section 439(1) merely because a person is accused of an offence punishable with death or imprisonment for life or that the only Question that the court has to consider in an application under that provision is whether there is reasonable ground for belief. We do not think that elaboration of this Rule is necessary since the essential distinction between the two Sections has been subject of rather elaborate consideration of the Supreme Court in Gurucharan Singh v. State (Delhi Admn.)2. Dealing with Section 437(1) the court said thus: Section 437, Criminal Procedure Code is concerned only with the Court of Magistrate. It expressly excluded the High Court and the Court of Session. Referring to Section 439(1) the court said in paragraph 24 of its judgment thus: Section 439(1), Criminal Procedure Code of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), Criminal Procedure Code against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1), Criminal Procedure Code of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1), Criminal Procedure Code of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out.