ARVIND MANEKLAL BHAGAT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner was convicted by the Judicial Magistrate F. C. Dahod and sentenced to imprisonment and fine. The appeal came to be heard by the learned Addl. Sessions Judge Panchmahals at Godhra and the appeal came to be dismissed on 30-7-1986. The petitioner was on bail during the pendency of the appeal before the learned Addl. Session Judge. When the appeal was dismissed the learned Addl. Sessions Judge was expected to direct that the petitioner should surrender to serve out the sentence imposed upon him. Instead of giving such direction the learned Additional Sessions Judge directed that the petitioner should surrender within a week from the date of that order. The learned Addl. Sessions Judge even thereafter extended time to surrender upto 2-9-1986. Sub-section (3) of section 389 of the Code of Criminal Procedure 1973 empowers a Court convicting an accused to release him on bail if the convicted person satisfies that Court that he intends to present an appeal. Certain limitations are prescribed by sub-section (3) of section 389 of the Code. So far as release on bail for filing a revision application is concerned there is no provision anywhere in the Code which would enable a Court of Appeal or trial Court to suspend the sentence or release the accused on bail on the ground that he wants to file a revision application before the higher Court. When the Legislature has made specific provision as per sub-section (3) of section 389 to release the accused on bail when he intends to prefer an appeal and when no such provision is made any where in the Code empowering the Court to release the accused on bail or suspend the sentence in case he wants to file a revision application the Court convicting an accused either it be a trial Court or an Appellate Court cannot release him on bail or suspend the sentence so as to enable the convicted accused to prefer a revision application before the higher Court It is true that there is no bar created by any provision in the Code in this regard but when the Legislature made a specific provision as in sub-section (3) of sec. 389 with regard to the filing of an appeal and when the Legislature did not make any provision with regard to the release of the accused on bail pending filing of a revision application it is clear that the Legislature did not intend to confer any such power in such circumstances. Even so far as release on bail pending filing of an appeal is concerned certain limitations are prescribed by sub-section (3) of section 389. In view of this the Court of Sessions after hearing the appeal cannot give any such time to the accused to surrender as has been done by the learned Sessions Judge because it indirectly tantamounts to suspending the sentence or releasing the convicted accused on bail. The learned Addl. Sessions Judge was thus clearly in error in directing that the accused should surrender within one week and then in extending the time upto 2-9-1986.

(2.) I may also mention here that even though the learned Addl. Sessions Judge had given time upto 2-9-1986 the petitioner has not surrendered till today.

(3.) The petitioner should now immediately surrender before the trial Court and thereafter this revision application be listed for admission. Mr. Panchal states that the petitioner will surrender today. The matter to be fixed for admission after Mr. Panchal intimates that the petitioner has surrendered.