LAWS(KER)-1986-4-10

BHASKARAN Vs. STATE OF KERALA

Decided On April 03, 1986
BHASKARAN Appellant
V/S
STATE OF KERALA Respondents

JUDGEMENT

(1.) Petitioners were accused 1 to 4 and 6 in S.C. 15/83 on the file of the Sessions Judge, Trichur. They were charge-sheeted along with four other accused for various offences including S.302 read with S.149, IPC. Sessions Judge acquitted all of them. In Crl. A. No. 373 of 1983 this Court set aside the acquittal as against the petitioners. They were convicted for the various offences including S.302 read with S.149, IPC and each of them was sentenced to suffer imprisonment for life. The present petition purporting to have been filed under S.389(3) of the Code of Criminal Procedure and Art.134(1)(a) of the Constitution of India read with the Supreme Court (Enlargement of Criminal Appellate Jurisdiction ) Act, 1970 (Act 28 of 1970) is for suspending the sentence and enlarging the petitioners on bail. They say that they intend to take up the matter in appeal to the Supreme Court. We heard the counsel for the petitioners and the Director of Public Prosecutions on behalf of the State.

(2.) The petition was filed mainly under S.389(3) of the Code. S.389 contains provisions enabling the appellate Court, the High Court as well as the convicting Court to order suspension of execution of the sentence and if the accused is in confinement, to direct him to be released on bail or bond. Sub-section (1) of S.389 confers the above power on the appellate Court and by virtue of sub-section (2) the said power could be exercised by the High Court even when it is not the appellate Court but the appeal is only to a Court subordinate to it. We are not very much concerned with sub-sections (1) and (2). What we are concerned with is only sub-section (3) which dealt with the pawer of the convicting court. It is undoubted that sub-section (3) can have application only in cases covered by sub-section (1) which includes sub-sections (2) also. But all cases covered by sub-sections (1) and (2) will not come under sub-section (3). Sub-section (3) confers only a restricted power to the convicting Court to suspend sentence and grant bail. That is to afford the convicted person an opportunity to present an appeal and obtain orders from the appellate Court. For that purpose he will have to satisfy the convicting Court that he intends to present an appeal. So also sub-section (3) could be invoked only in cases where the convicted person is on bail and sentenced to imprisonment for a term not exceeding three years or where the offence for which he has been convicted is bailable and he is on bail. These restrictions are not there on sub-sections (1) and (2). While the appellate Court including the High Court could exercise the powers under sub-sections (1) and (2) of S.389 in any case of conviction, the jurisdiction of the convicting Court under S.389(3) is limited to cover cases coming under clauses (i) and (ii) alone which are comparatively short term sentences. The case in hand does not cover Clauses (i) and (ii) of S.389(3). The sentence awarded is imprisonment for life and conviction is for offences not bailable. Therefore the prayer under S.389(3) has to be rejected outright.

(3.) Power of Courts are the creation of statute save those coming under the inherent powers. Normally when a Court finally disposes of a case it becomes divested of the matter and becomes functus officio to deal with it in any manner except to the extent allowed and authorised by specific provisions. Thereafter jurisdiction is only with the higher Court which is competent to sit in judgment over it. This Court has finally disposed of the criminal appeal convicting and sentencing the petitioners. Section 389(3) is the only provision under which this Court could have acted as the convicting Court. That provision is evidently not applicable to the case in hand. That means there is complete lack of jurisdition to entertain a prayer of the nature contained in the petition. No other provision is there authorising this Court to deal with a situation as the one before us.