SUNDAR ALIAS SUNDARARAJAN Vs. INSPECTOR OF POLICE ALL WOMEN POLICE STATION PALAYAMKOTTAI TIRUNELVELI DISTRICT

JUDGEMENT

(1.) THE petitioner was originally convicted by the Trial Court for an offence under Sec.498-A, I.P.C. and was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000 in default to undergo rigorous imprisonment for three months by the Judicial Magistrate, Valliyoor in C.C.No.134 of 1995, by his judgment dated 26.12.1996. THE accused went on appeal and the appeal was heard in C.A.No.10 of 1997 by the III Additional Sessions Judge, Tirunelveli who after hearing both sides, acquitted the petitioner/accused by his judgment dated 21.4.1998, Aggrieved by the order of acquittal passed by the appellate Court, the complainant in the Police case went on revision in Crl.R.C.No.524 of 1998 and this Court set aside the order of acquittal and then remanded the matter to the appellate Court after hearing the counsel appearing for the petitioner, chose to confirm the order of trial Court. Hence, revision has been filed in Crl.R.C.No.752 of 2000 by the accused petitioner. Pending Criminal revision, he has filed this Crl.M.P. for suspension of sentence.

(2.) LEARNED counsel appearing for the accused/revision petitioner submits that as per Sec.397 of Criminal Procedure Code, the moment the revision is admitted for the purpose of satisfying as to the correctness or legality of the order passed by the appellate Court, this Court while calling for the records can direct the execution of sentence to be suspended. Admittedly, in this case, the accused/revision petitioner was not present at the time of pronouncing appellate judgment and the judgment was pronounced in his absence and since, it is a judgment of conviction, the appellate Court issued a non-bailable warrant for the arrest of the accused to undergo the sentence of imprisonment; Sec.397(1) says that while suspending the execution of the sentence, this Court can release the accused on bail, if he is in confinement. In case, the accused is not in confinement, the question of release of the accused on bail does not arise. Therefore, the learned counsel appearing for the petitioner submits that in this case mere suspension of execution of sentence alone would suffice and there is no necessity to pass any order regarding the release of the accused on bail since, the accused is not in confinement. At this stage, the most point that requires decision as to whether the execution of the sentence of imprisonment passed by the Appellate Court can be suspended while a non-bailable warrant for the arrest of the accused to undergo imprisonment is pending.

(3.) THEREFORE, in the peculiar circumstances of this case, in case, the accused appears before the appellate Court, the appellate Court is directed to recall the warrant and the moment the warrant is recalled, the execution of the sentence passed against the accused, shall stand suspended and the appellate Court is directed to release the petitioner on bail on his executing a bond for Rs.5,000 with two sureties for the like sum to its satisfaction pending disposal of the revision.