BENZAMIN KHIRO ALIAS KIRO Vs. STATE OF ORISSA

JUDGEMENT

(1.) Since all these applications involve identical prayer, they are disposed of by this common judgment which shall govern each one of them. The controversy in short is whether conviction can be suspended under Section 389 of the Code of Criminal Procedure, 1973 (in short, the 'Code'). The petitioners assert that it can be done, and in any event, according to them, same can be put in eclipse, while it is under challenge is a higher forum. According to the apposite parties, under Section 389 of the Code what is to be suspended is the sentence, or the order appealed against, and to release the appellant on bail if he is in confinement, and nothing beyond it. The controversy centers round the scope and ambit of Section 389.

(2.) Section 389 of the Code deals with "suspension of sentence pending the appeal; release of appellant on bail", as the heading shows. Sub-Section (1) deals with the powers of the appellate court for reasons to be recorded in writing, to suspend execution of sentence or order appealed against, and if the convicted person is in confinement, to release him on bail, or on his own bond. Sub-Section (3) deals with a stage prior to filing of appeal before the appellate court. It provides that where filing of an appeal is intended and the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall -

(3.) Conviction and sentence are conceptually different. The word