JUDGMENT
Bhat, J.
1. These are petitions filed under Section 389 (alternatively under Section 482) of the Criminal P.C. (for short, ‘the Code’), seeking release of the petitioners on bail to afford them time to “present appeal” and obtain orders from the Supreme Court. The learned single Judge before whom the petitions came up for consideration noticed the conflicting views expressed by two Division Benches of this Court regarding power of this Court to grant bail viz. Abdulla Haji v. Food Inspector, Ker LT 754 : (1986 Cri LJ 1193) and Salim v. State of Kerala, 1985 Ker LT 711 : (1986 Cri LJ 1197) and referred the petitions for consideration by a Division Bench. Cri. M.P. 1145/85 came up before a Division Bench and the Bench referred the petition to a Full Bench and accordingly this Full Bench has been constituted. The other Cri. M.Ps. have also been placed before us.
2. Cri. M.P. 1115/85 arises in Cri. R.P. 80/82. The other petitions arise in Cri. Appeals. In Cri. R.P. 80/82, this Court declined to interfere with the conviction and sentence entered against petitioner under the provisions of the Prevention of Food Adulteration Act by the trial court and confirmed in appeal by the Sessions Court. The Cri. Appeals were filed challenging the acquittal of the appellants therein by the courts of first instance. Cri. Appeals 153/82, 129/82, 292/82 and 293/82 relate to offences under the Prevention of Food Adulteration Act. Cri. Appeal 32/82 relates to offences under the Prevention of Corruption Act and Indian Penal Code. Appeal 157/82 relates to offences under Kerala Forest Act. Cri. Appeal 374/82 relates to offences under Sections 420. 468, 471 and 477A I.P.C. Crl. Appeal 188/82 relates to offences under Sections 450, 394 and 316 I.P.C. Some of the offences involved are bailable while others are non-bailable. However, sentence of imprisonment imposed in these cases is for a period of less than three years. There is no dispute that the petitioners have no “right of appeal” to the Supreme Court under any provision of the Constitution or the Code. Oral application for certificate of leave under Article 134A made in Crl. Appeal 153/82 was rejected. No such application was made in any other case. However, petitioners submit that they intend to file special leave petition before the Supreme Court under Article 136 and as such they are persons who “intend to present appeal before the appellate court” as contemplated in Section 389(3) of the Code. They seek order of bail under Section 389(3)(or alternatively, in exercise of the inherent power of this court under Section 482) of the Code. Learned counsel for the respondents and the learned Public Prosecutor submitted that neither of these provisions would enable this Court to grant bail at this stage.
3. Section 389 of the Code reads as follows:
“389. Suspension of sentence pending the appeal; release of appellant on bail — (1) Pending any appeal by a convicted person, the Appellate court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also if he is in confinement, that he be released on bail, or on his bond.
(2) The power conferred by this section on an Appellate court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.
(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall, —
(i) where such person, being on ban, is sentenced to imprisonment for a term not exceeding three years, or
(ii) Where the offence of which such person has been convicted is a bailable one, and he is on bail,
order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under Sub-section (1) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.”
4. Sub-section (1) enables the appellate Court, in appeal by a convicted person and pending appeal, to order suspension of execution of the sentence and if he is in confinement, to direct him to be released on bail or bond. By virtue of Sub-section (2), this power could be exercised by the High Court even if appeal be pending before a subordinate appellate court. It is Sub-section (3) which confers power on the convicting court to pass an order directing release on bail. Where a convicted person dealt with in Clauses (i) and (ii) satisfies the convicting court that he intends to present an appeal, the court shall order that he be released on bail unless there are special reasons for refusing bail. The order is to be passed to afford him sufficient time to present the appeal and obtain orders of the Appellate Court, under Sub-section (1). So long as he is released on bail, the sentence shall be deemed to be suspended. Sub-section (3) will apply only in the cases mentioned in Clauses (i) and (ii) that is, where he, being on bail, is sentenced to imprisonment for a term not exceeding three years, or where the offence in regard to which such person is convicted is a bailable one and he is on bail. In other words, Sub-section (3) covers only cases involving what could be regarded as comparatively short term sentences, First Schedule to the Code shows that maximum sentence imposable for any bailable offence is imprisonment for three years, barring certain exceptional cases.
5. Petitioners in these cases fall under two categories; those whose conviction and sentence have been confirmed by this Court (petitioner in Crl. M.P. 1115/85 falls in this category) and those who, in reversal of their acquittal have been convicted and sentenced to imprisonment for a period less than three years (petitioners in remaining petitions fall in this category). It is clear that Sub-section (3) of Section 389 has no application regarding the former category of cases. Sub-section (3) applies only where “a convicted person satisfies the court by which he is convicted that he intends to present an appeal. Petitioner in Crl. M.P. 1115/85 has not been convicted by the High Court. He was convicted by the court of first instance and the same was confirmed by the court of Session. High Court, in revision, declined to interfere, in such a case, High Court is not the court which convicted him and hence Sub-section (3) is not attracted. Petitioners in other petitions fall in the second category mentioned above. They were acquitted by the court of first instance and in reversal of the acquittal, High Court convicted them. So far as they are concerned, High Court is the convicting court. The question for consideration is whether they are entitled to the benefit of Sub-section (3) of Section 389 of the Code.
6. On this question, there is a serious controversy between the counsel for the petitioners and the counsel for the respondents including the learned Public Prosequtor. Two Division Benches of this court have expressed different views. Earlier of these decisions was in Abdulla Haji’s case. (1986 Cri LJ 1193). The Division Bench took the view that the change brought about in Sub-section (3) of Section 389 of the Code when compared to the provisions in Section 426 Criminal P.C. 1898 (for short, ‘the old Code’) would suggest that the expression “intends to present an appeal” would include a person who intends to file Special Leave Petition before the Supreme Court and that this change has been brought about with the specific object of protecting those who have been awarded short term sentences, lest by the time the S.L.P. is filed they are compelled to undergo the sentence. The words “and an appeal lies” occurring in Sub-section (2A) of Section 42G of the old Code, the bench pointed out, are absent in Sub-section (3) of Section 389 of the Code. Therefore the latter provision will apply not only to cases where an appeal lies (indicating existence of a right of appeal) to the Supreme Court but also to cases where there is no right of appeal, but the convicted person could move the Supreme Court under Article 136 of the Constitution. The Bench noticed that the words “has been granted special leave to appeal to Supreme Court” occurring in Sub-section (2B) of Section 426 of the old Code are omitted in Sub-section (3) of Section 389. The Bench further indicated the words “Court by which he is convicted” would include an Appellate Court which reversed an acquittal and convicted the accused and hence would comprehend High Court also. Salim’s case, (1986 Cri LJ 1197) which was decided by another Division Bench a few days later, took a different view. The judgment does not show that the earlier Bench decision was brought to the notice of the later Bench. In Salim’s case conviction and sentence entered by the subordinate court had been confirmed by the High Court. Obviously, in such a case, Sub-section (3) of Section 389 would not apply because High Court was not the convicting court.
Salim’s request for bail could have been rejected on this short ground. Salim had already filed a petition to the Supreme Court for special leave and the petition was pending when the High Court was moved. The Bench held that during the pendency of Special Leave Petition before the Supreme Court, High Court cannot grant bail. Nevertheless, the Bench considered the question whether a person who has no right of appeal, but can only file Special Leave Petition under Article 136 of the Constitution can be regarded as a person who “intends to present an appeal” and held that he cannot be so regarded and therefore cannot avail of the benefit of Sub-section (3).
7. It is contended for the petitioners that the “Appellate Court” referred to in Sub-section (1) of Section 389 would include the Supreme Court and therefore the expression “the court by which he is convicted” in Sub-section (3) could include the High Court and “intention to present an appeal” would comprehend “intention to file appeal by special Leave” and therefore Sub-section (3) is attracted in these cases, the object of enabling the court to grant bail under Sub-section (3) is to afford sufficient time to present an appeal and obtain orders of the Appellate Court under Sub-section (1) and if Sub-section (3) is held to be inapplicable to cases of conviction by High Court in reversal of acquittal there would be irreparable prejudice and the petitioners would be compelled to undergo sentence before they move S.L.P. and obtain orders of suspension of bail. Such, it is argued, could not be the intention of the Legislature.
8. Learned counsel for the respondents and the learned Public Prosecutor would, on the other hand, contend that the Supreme Court is not a “criminal court” and is not an “appellate court” as contemplated in Sub-section (1) of Section 389 of the Code, that the expression “the court by which he is convicted” in Sub-section (3) of Section 389 of the Code could not take in High Court but could take in only the subordinate criminal court, that when a person presents a Special Leave Petition he does not “present an appeal” and therefore before filing a Special Leave Petition his intention could only be to present a Special Leave Petition and not an appeal, though S.L.P. on being allowed, would be converted into an appeal under the Supreme Court Rules. If Sub-section (1) does not apply to Supreme Court, which is a court of special jurisdiction and derives its authority under the Constitution and which has framed rules regarding suspension of sentence and allied matters, it is argued, Sub-section (3) cannot be attracted.
9. Section 6 of the Code enumerates criminal courts under the Code, besides the High Court that is to say, Section 6 treats High Court also as a class of criminal court. Articles 132(1), 132(3), 134, 134A and 136 of the Constitution as well as Sections 374 and 379 of the Code are the only provisions enabling a person convicted and sentenced for a criminal offence to approach the Supreme Court. Article 132(1) states that an appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in civil, criminal or other proceeding if the High Court certifies under Article 134A that the case involves a substantial question of law as to the interpretation of the Constitution. Once such a certificate is granted, Article 132(3) enables him to appeal to the Supreme Court on the ground that such question as aforesaid has been wrongly decided. Article 134A enables High Court to issue a certificate, either suo motu or on oral application made on behalf of the aggrieved party under Article 132(1) or 134(1)(c). Article 134 states that an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in any of three contingencies. First is where the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death. Second is where the High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death. Third is where the High Court has certified under Article 134A that the case is a fit one for appeal to the Supreme Court. Section 372 of the Code lays down that no appeal shall lie from any judgment or order of a criminal court except as provided by the Code or by any other law for the time being in force.
10. Sections 375 and 376 of the Code deny right of appeal in certain cases. Section 376(a) states that there shall be no appeal by a convicted person where a High Court passes only a sentence of imprisonment for a term not exceeding six months or of fine not exceeding one thousand rupees, or of both such imprisonment and fine. Section 374 deals with appeals from convictions. Sub-section (1) states that any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. Sub-section (2) deals with appeals to High Court against conviction and Sub-section (3) deals with appeal to Court of Session against conviction. Section 379 states that where the High Court has on appeal reversed an order of acquittal of an accused person and convicted and sentenced him to death or imprisonment for life or imprisonment for a term of 10 years or more, he may appeal to the Supreme Court. This section, we notice, is almost a reproduction of Section 2(a), Supreme Court (Enlargement of Appeal Jurisdiction) Act, 1970 and enlarges the jurisdiction of the Supreme Court conferred by Article 134 (1)(a) of the Constitution.
11. In other words, Sub-section (1) of Section 374 of the Code follows Article 134(1)(b) while Section 379 of the Code enlarges the jurisdiction vested in the Supreme Court under Article 134(1)(a). The provision in Article 134(1)(c) is an extraordinary provision for which there is no parallel in the Code. The present are not cases covered by Article 132 or Article 134 of the Constitution or Section 374 or 379 of the Code. In these cases, appeal is barred under Section 376(a) of the Code. The petitioners can approach the Supreme Court only under Article 136 of the Constitution which states that notwithstanding anything in the Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal.
12. It is thus clear that the petitioners have no “right of appeal” under the provisions of the Constitution or the Code. They can seek certificate from this Court under Article 134A or seek special leave of the Supreme Court under Article 136 of the Constitution. One of the petitioners unsuccessfully sought a certificate; others have not done so. However, all the petitioners intend to move the Supreme Court for special leave to appeal.
12A. What exactly is the nature of an appeal by special leave? In Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC 520, Mukherjea J., (as he then was) speaking for a Bench of five Judges observed that powers under Article 136 are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law in cases where needs of justice demand interference by the Supreme Court of the land. Article 136 is worded in the widest term possible. It vests in the Supreme Court plenary jurisdiction in the matter of entertaining and hearing appeals, by granting special leave, against any kind of judgment or order made by a court or tribunal in any case or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws. In C.S.D. Swamy v. The State, AIR 1960 SC 7 : (1960 Cri LJ 131) the Supreme Court observed that it is not a court of criminal appeal. In Matru v. State of U.P., AIR 1971 SC 1050 : (1971 Cri LJ 913) the Court observed that the Article 136 does not confer a right of appeal on any party, it only confers a discretionary power on the Supreme Court to see whether any substantial or grave injustice has been done to a party and if so satisfied, to interfere. In Ramniklal v. State of Gujarat, AIR 1975 SC 1752 : (1975 Cri LJ 1542), Bhagwati, J. (as he then was) speaking for the Bench observed that the Supreme Court is not a regular court of appeal which an accused may approach as of right in criminal cases. It is an extraordinary jurisdiction which the Supreme Court exercises when it entertains an appeal by special leave. In Arunachalam v. P. S. R. Setharathnam, AIR 1979 SC 1284 : (1979 Cri LJ 875), the Court cautioned that the power vested in the Supreme Court under Article 136 is not to be confused with ordinary appellate power exercised by appellate courts and tribunals under special statutes. It is plenary power exercisable outside the purview of ordinary law and meant to meet the pressures of demand of justice. It neither confers on anyone the right to invoke the jurisdiction of the Supreme Court nor inhibits anyone invoking the jurisdiction of the Supreme Court. Power is vested in the Supreme Court but right to invoke the court’s jurisdiction is vested in no one. In Sita Ram v. State of U.P., AIR 1979 SC 745 : (1979 Cri LJ 659), the Court was considering the legality of Rule 151(1)(c) of Order XXI, Supreme Court Rules providing for summary disposal of appeal. The appeal was against judgment of High Court convicting some of the accused in reversal of acquittal by the Sessions Court. The appeal was listed for preliminary hearing as contemplated by the above rule. The accused demanded full-fledged hearing after notice and challenged vires of the Rule. The court considered the scope of Article 136 and noticed that it has no resemblance to an absolute right of appeal while Article 134 gives a constitutional right of appeal. The court further observed that under Article 136 it is only after leave is granted that the appeal is born and Article 134 stands on a higher footing than Article 136. The court finally read down Rule 15 and upheld its validity.
13. Supreme Court under Article 134 of the Constitution or Sections 374(1) and 379 of the Code is an appellate court. However, Supreme Court, exercising discretionary power under Article 136 of the Constitution is not a court exercising ordinary appellate power. Hence it follows that Supreme Court exercising jurisdiction under Article 136 of the Constitution is not an appellate court as contemplated in Sub-section (1) of Section 389 of the Code. Sub-sections (1) and (3) of Section 389 are part of a scheme; subsection (1) enables the appellate court to suspend sentence and grant bail in all cases, though for reasons to be recorded in writing while Sub-section (3) confers on the convicting court a limited power in a narrower field to grant bail to a convicted person to afford him an opportunity to present an appeal and obtain orders of the Appellate Court. Sub-section (3) takes colour from Sub-section (1). If a case does not attract provisions of Sub-section (1), it cannot attract provisions of Sub-section (3). Cases covered by Sub-section (3) will fall under Sub-section (1) though all cases falling under Sub-section (1) may not attract Sub-section (3). If in these cases Sub-section (I) is not attracted, and we are of the opinion that it is not attracted, Sub-section (3) also cannot have any operation. Hence petitioners cannot seek bail under Sub-section (3) of Section 389 of the Code.
14. Sub-section (3) of Section 389 of the Code requires the convicted person to satisfy the court by which he is convicted that “he intends to present an appeal”. The purpose of conferring on the convicting court the power to grant bail is to “afford sufficient time to present an appeal and obtain orders of the Appellate Court under Sub-section (1)”. Petitioners have no right of appeal. They can only move the Supreme Court for special leave to appeal under Article 136 of the Constitution. Learned counsel for the petitioners would contend that the words “present an appeal” do not presuppose the existence of a right of appeal and that existence of a provision for appeal would be sufficient. They also rely on the reasoning in Abdulla Haji’s case (1986 Cri LJ 1193) based on the change of language in the provision compared to the parallel provision in the old Code. The words “intention to present an appeal”, in their ordinary grammatical sense would mean that the person has a right of appeal and intends to present an appeal. A person cannot intend to present an appeal if he has no right of appeal. He may move the Supreme Court for special leave to appeal and when special leave is granted it can be said that there is an appeal by him. Order XXI of the Supreme Court Rules 1966 deals with special leave petitions in criminal proceedings and criminal appeals. Rule 9 states that on the granting of special leave, the petition for special leave shall be treated as a petition for appeal and shall be registered and numbered as such. This would mean that apart from filing a special leave petition no separate memorandum of appeal is necessary. In the words of Krishna Iyer, J. in Arunachalam’s case (AIR 1979 SC 1284) “after leave appeal is born”. From this it does not follow that what a person originally presents as a special leave petition is actually an appeal or memorandum of appeal. The birth of the appeal takes place on the grant of special leave. Special leave petition, on leave being granted, is treated as an appeal. He has to satisfy the Supreme Court that it is a fit case for grant of special leave and then only urge his appeal before the Court. Power under Article 136 is a discretionary and extraordinary power outside the purview of ordinary law and has no resemblance to an ordinary appellate power. The Supreme Court exercising jurisdiction under Article 136 is not a regular court of appeal. It cannot be said that there is no difference between “presenting an appeal” and “presenting a special leave petition”.
14A. Section 415 of the Code deals with postponement of execution of sentence of death in case of appeal to the Supreme Court. Sub-section (1) states that where a person is sentenced to death by the High Court and an appeal from its judgment lies to the Supreme Court under Article 134(1)(a) or (b) of the Constitution, the High Court shall order the execution of sentence to be postponed until the period allowed for preferring such appeal has been expired, or if an appeal is preferred within that period, until such appeal is disposed of. Sub-section (2) states that where a sentence of death is passed or confirmed by the High court, and the person sentenced makes an application to the High Court for the grant of a certificate under Article 132 or under Article 134(1)(e) of the Constitution, the High Court shall order the execution of the sentence to be postponed until such application is disposed of by the High court, or if a certificate is granted on such application, until the period allowed for preferring an appeal to the Supreme Court on such certificate has expired. Sub-section (3) states that where a sentence of death is passed or confirmed by the High Court, and the High Court is satisfied that the person sentenced intends to present a petition to the Supreme Court for the grant of special leve to appeal under Article 136 of the Constitution, High Court shall order the execution of the sentence to be postponed for such period as it considers sufficient to enable him to present such petition.
15. The words “and an appeal from its judgment lies under Article 134(1)(a) or (b)” occurring in Sub-section (1) of Section 415 appear to be redundant since where a person is sentenced to death by the High Court there is a right of appeal under Article 134(1)(a) or (b). Sub-section (1) deals with cases of persons sentenced to death by the High Court. Sub-section (2) refers to sentence of death passed or confirmed by the High Court and a certificate under Article 132 or 134(1)(c) is sought for. This also appears to be redundant since in such a case there is a right of appeal under Article I34(1)(a) or (b). It is Sub-section (3) which is significant, though this sub-section also has an element of redundance. But the significance lies in the fact that the sub-section refers to a person intending to present a special leave petition to Supreme Court under Article 136. The legislature has made a distinction between “intention to file an appeal” and “intention to file a special leave petition”. This is another reason to conclude that the words “intention to present an appeal” occurring in Sub-section (3) of Section 389 of the Code do not comprehend “intention to present a special leave petition” before the Supreme Court. The provision in Sub-section (3) of Section 415 of the old Code was evidently not brought to the notice of the Bench which decided Abdulla Haji’s case(1986 Cri LJ 1193).
16-17. Clause (i) of Sub-section (1) of Section 389 of the Code contemplates the convicted person “being on bail” while cl. (ii) contemplates that “he is on bail”. Up to the stage of conviction, accused is either on bail or in judicial custody. Obviously a person who is in judicial custody cannot seek the benefit of Sub-section (3) of Section 389 of the Code. Where the trial Court acquits an accused person, if he is in confinement, he would be released and if he is on bail his bail bonds are cancelled. If the acquittal is challenged before the High Court in appeal (it may be challenged in appeal only before the High Court though there could be a challenge in revision before the Session Court, the person acquitted cannot be regarded as a person who is on bail. Petitioners contend that the words “being on bail” only mean that he should not be in custody and would include a person who is acquitted by the trial court. It is difficult to agree with this submission. The words “being on bail” or “is on bail” must be construed in their plain grammatical sense. There is no warrant to extend the meaning artificially to cover a situation which would not ordinarily be attracted. A person is on bail when a competent court has released him on bail. There is no question of a person who has not been taken into custody or who has not surrendered to custody being on bail. A person who is free otherwise without a prior custodial confinement and release by court is not a person who is on bail. These words occurring in Clauses (i) and (ii) would clearly mean that Sub-section (3) would apply only to a person who is in custody and not on bail. Such a situation cannot apply to a person who has been acquitted by the trial court and an appeal against acquittal is intended to be filed. We are, of course, cognisant of the provisions of Section 390 of the Code. Section 390 states that when an appeal is presented under Section 378, High Court may issue a warrant directing that the accused be arrested and brought before it or any subordinate court, and the court before which he is brought may commit him to pending the disposal of the appeal or admit him to bail. Section 378 relates to appeal against acquittal. Section 390 is only an enabling provision empowering the High Court to direct an acquitted accused to be arrested on the presentation of an appeal against acquittal. Such a person could be either committed to prison pending disposal of appeal or admitted to bail. This enabling provision is not intended to be invoked in all cases and therefore cannot provide any guideline for interpretation of Sub-section (3) of Section 389 of the Code. It relates only to a special category of cases justifying the invocation of power and is an exception rather than the rule.
18. Our attention has been invited to certain provisions of the Supreme Court Rules which contemplate an appellant before the Supreme Court or person filing special leave petition to surrender to sentence. Rule 6 of Order XXI of the Rules states that where the petitioner has been sentenced to a term of imprisonment, the petition shall state whether the petitioner has surrendered. Where the petitioner has not surrendered to the sentence, the petition shall not be posted for hearing unless the Court, on a written application for the purpose, orders to the contrary. Where the petition is accompanied by such an application, the application and the petition shall be posted together before the Court. Rule 13 A contains a similar provision in regard to appeals before the Supreme Court. Thus, ordinarily, a person filing an appeal or special leave petition before the Supreme Court is required to surrender to the sentence though it is open to the Supreme Court to pass an order to the contrary. The appeal and the special leave petition will be held up till he surrenders to sentence or the Court orders to the contrary. The Rules are framed under Article 145 of the Constitution and they provide some, assistance in interpreting Sub-section (3) of Section 389 of the Code. If a person approaching the Supreme Court is mandatorily required to surrender to the sentence unless the Supreme Court directs otherwise it would be incongruous to take the view that the High Court can give him bail to “afford sufficient time” not only to present an appeal but also to obtain orders of the Court.
19. We now turn to the argument that the difference in language between Section 426 of the old Code and Section 389 of the Code supports the stand taken by the petitioners. Sub-section (1) of Section 389 of the Code is a reproduction of Sub-section (1) of Section 426 of the old Code, It enables the Appellate Court to suspend sentence and grant bail to a convicted person pending appeal filed by him. Sub-section (2) of Section 389 of the Code is also a reproduction of Sub-section (2) of Section 426 of the old Code. It enables High Court to exercise powers of the subordinate Appellate Court, even during the pendency of appeal before the latter court. Sub-section (4) of Section 389 of the Code is a reproduction of Sub-section (3) of Section 426 of the old Code, and is not relevant for our purpose.
Section 426 of the old Code as it originally stood did not contain any provision similar to Sub-section (3) of Section 389 of the Code. Sub-section (2A) of Section 426 of the old Code was inserted subsequently and it read thus :
“(2A). When any person other than a person convicted of a non-bailable offence is sentenced to imprisonment by a Court and appeal lies from that sentence, the Court may, if the convicted person satisfied the Court that he intends to present an appeal, order that he be released on bail for a period sufficient in the opinion of the Court to enable him to present the appeal and obtain the orders of the Appellate Court under Sub-section (i) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.”
20. This provision was intended to enable the convicting Court in cases of bailable offences to order release on bail to enable the convicted person to present an appeal and obtain orders of the Appellate Court under Sub-section (i). The provision would apply only where “an appeal lies from that sentence” and the court is satisfied that “he intends to present an appeal”. Sub-section (3) of Section 389 of the Code is a provision parallel to Sub-section (2A) of Section 426 of the old Code. Undoubtedly, there is difference in language between the provisions of the two Codes. Petitioners would contend, and this contention is accepted in Abdulla Haji’s case, (1986 Cri LJ 1193) that the omission of the words “and an appeal lies” in Sub-section (3) of Section 389 of the Code signifies that the legislature intended the new provision to apply even in cases where there is no right of appeal. This change, it is contended, would render the provision applicable even to persons who have no right of appeal but who can move the Supreme Court by way of special leave petition. Having bestowed our careful consideration to the submission, we regret, we are unable to agree with the same. A person could “intend to present an appeal” only when he has a right to present an appeal i.e. i.e. has a right of appeal. This has to be appreciated in the light of certain other provisions of the old Code (there are parallel provisions in the Code) which deny right of appeal to convicted person in certain contingencies. Sections 412, 413 and 414 of the old Code (parallel provisions in the new Code are Sections 375 and 376) barred except as to the extent of legality of sentence, appeal by an accused who had pleaded guilty and had been convicted by High Court, Sessions Court or First Class Magistrate’s Court. Section 413 barred appeals in petty cases. Section 414 barred appeals in certain cases of summary convictions. Appeal against conviction was provided in Sections 408, 410 and 411 of the old Code, corresponding to Sub-sections (2) and (3) of Section 374 of the Code. The old Code contained a special provision in Section 411A providing for a right of appeal to the High Court against conviction on trial by High Court in exercise of its original criminal jurisdiction in the contingencies mentioned therein. The right of appeal under the aforesaid Sections was subject to the bar contained in Sections 412. 413 and 414 of the old Code. It is thus clear that under the old Code an appeal would not lie in all cases but would lie only in certain cases. Where an appeal would not lie, there would be no purpose in empowering the convicting court to grant bail to enable him to present an appeal and obtain orders of the Appellate Court under Sub-section (1). It was only to make this clear that the words “and an appeal lies” were used in Sub-section (2A). Even without these words, the meaning and scope of the provision in Sub-section (2A) would not be different. Therefore, omission of t has words in enacting Sub-section (3) of Section 389 of the Code has no significance at all. In our opinion, the only change of significance brought about in enacting this provision is the incorporation of the words “being on bail” or “is on bail” and the inclusion of the category of persons convicted of non-bailable offences but sentenced to a term not exceeding three years. Other changes are only verbal.
21. Reliance is also placed on Sub-section (2B) of Section 426 of the old Code. In Jairam Das v. Emperor, AIR 1945 PC 94 : (1945 (46) Cri LJ 662) the Privy Council held that pending hearing of an appeal to the Privy Council, High Court had no inherent power to grant bail. However, the Privy Council pointed out the desirability of conferring of such power on High Court by the legislature. It was following this decision that Sub-section (2B) was incorporated in Section 426 of the old Code. This provision read thus :
“(2B). Where a High Court is satisfied that convicted person has been granted special leave to appeal to the Supreme Court against any sentence which the High Court has imposed or maintained, the High Court may, if it so thinks fit, order that pending the appeal
the sentence or order appealed against be suspended, and also, if such person is in confinement, that he be released on bait.”
It is significant to note that such a provision is absent in the Code. We fail to see how this would be of any assistance to the petitioners.
22. Comment is also made on the use of the words “the court by which he is convicted” in Sub-section (3) of Section 389 of the Code. It is contended that if the legislative intention was to render the provision inapplicable to High Court which convicts a person in reversal of acquittal, legislature would very well have used the expression : “the trial court”. We do not think there is any significance in the use of these words in the sub-section. Sub-section (1) refers to appeal by a convicted person. Sub-section (3) refers to “convicted person”. Therefore the legislature used the words “the court by which he is convicted” in Sub-section (3). In this connection it is interesting to note the following passage in the Joint Committee report on the draft bill which preceded the Code. “The Committee is of opinion that the provisions of sub-cl. (3) should be extended to cover (1) the case of a person who is on bail during the trial, if such a person is sentenced to imprisonment for a term not exceeding three years and (2) the case where the offence for which the person is convicted is bailable. In both these cases, it would be unjust to refuse bail merely because the person concerned has been convicted by the “trial court”. In enacting the provision, only verbal changes which do not carry any significance have been effected.
23. Alternatively it is contended that in case Section 389(3) of the Code is found inapplicable, the inherent power recognized in this Court under Section 482 of the Code could be invoked in their favour. No doubt, petitioners are in an unfortunate predicament. They are faced with the possibility of being lodged in prison before they file special leave petition or obtain orders thereon. This would be highly prejudicial in the case of persons facing short term sentences. In our opinion, the remedy lies in the hands of the legislature. Suspension of sentence and grant of bail are matters covered by specific provisions of the Code. A court which convicts a person cannot obviously suspend the sentence. It could only grant him bail or prevent him from being taken to custody so as to afford him opportunity to move the superior court. There is specific provision in the Code in this regard.
But petitioners cannot take advantage of the provision. In such a case, the High Court cannot grant relief in exercise of its inherent power. We have the high authority of the Privy Council which observed in Jairam Das’s case (AIR 1945 PC 94) as follows :
“Chapter XXXIX of the Code together with Section 426 is, and was intended to contain a complete and exhaustive statement of the powers of a High Court in India to grant bail and excludes the existence of any additional inherent power in a High Court relating to the subject of bail.”
We would also refer to the observation of a Division Bench of this Court in Ranganadha Reddiar v. State of Kerala, AIR 1968 Ker 192 : (1968 Cri LJ 935) that inherent powers can only be exercised within the framework of the law and not in violation of the law, and in exercise of the inherent power, the court has to guard against passing of an order which would conflict with the provision of the Code. A relief however equitable cannot be passed by exercising the inherent power in contravention of the law. The Division Bench noticed the anomaly in the case of a convicted person who has been granted certificate of fitness as distinguished from a person who has filed a special leave petition before the Supreme Court with reference to Sub-section (2B) Section 426 of the Code. The Court took the view that the provision is not applicable in the case of a person who has been granted certificate of fitness and suggested that the anomaly could be rectified by the legislature. In our opinion the present petitions also expose an anomaly in Sub-section (3) of Section 389 of the Code and suggest the rectification of the same by amending Sub-section (3) to cover cases of the nature dealt with by us herein.
We therefore hold that the High Court has no power to grant bail under Sub-section (3) of Section 389 of the Code to persons acquitted by the trial court and who have been convicted by this Court in reversal of the acquittal, though conviction is in regard to bailable offence or sentence is for a term not exceeding three years. We also hold that the High Court has no power to grant bail under this provision to persons convicted and sentenced by the trial court where the conviction and sentence have been affirmed by it. Petitions are accordingly dismissed.
Radhakrishna Menon, J.
24. The conflicting views expressed by the two
Division Benches of this Court in the decisions in Abdulla Haji v. Food Inspector, 1985 Ker LT 754 : (1986 Cri LJ 1193) and Salim v. State of Kerala, 1985 Ker LT 71 : (1986 Cri LI 1197), in regard to the interpretation of Section 389(3) of the Code of Criminal Procedure, for short the Code, has resulted in the matter being referred to the Full Bench and that is how the matter is now before us.
25. While expressing my concurrence with the views of my learned brother Bhat J., 1 wish to add a few words of mine.
26. Facts, which are not in dispute, are : The petitioners before us seek suspension of execution of the sentence and if already in confinement, a direction to be released on bail or bond pending disposal of the petitions, they intend filing before the Supreme Court under Article 136 of the Constitution for Special Leave to file appeals.
27. Section 389 of the Code reads :
“389. Suspension of sentence pending the appeal, release of appellant on bail,–
(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, on his own bond.
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.
(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,–
(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail,
order that the convicted person be released, on bail, unless there are special reasons for refusing bait, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under Sub-section (1), and the sentence of imprisonment shall, so long as he is so released on bail, he deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.”
28. A convicted person within the meaning of Sub-section (3) of Section 389 of the Code, in order to avail of the benefit of the said subsection shall satisfy the Court by which he is convicted that he intends to present an appeal before the Appellate Court and therefore he may be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court, under Sub-section (1) and that the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
29. From the facts available on record it is clear, that for the redressal of grievance, the petitioners per force have to approach the Supreme Court under Article 136 of the Constitution. The question therefore would arise, whether the applications, the petitioners intend to present under Article 136 of the Constitution are tantamount to “appeals ‘the convicted persons’ intend to present” under Section 389(3) of the Code. The answer depends upon the construction of Article 136 of the Constitution. The jurisdiction of the Supreme Court under Article 136 is of a residual nature. It confers, without any limitation, discretionary powers on the Supreme Court to satisfy itself that no substantial and grave injustice has been done to any party. It does, however, confer a right of appeal on any party. (Vide Matru v. State of U.P., AIR 1971 SC 1050 : (1971 Cri LJ 913). To the same effect is the decision of the Supreme Court in Ramniklal Gokuldas Oza v. State of Gujarat, AIR 1975 SC 1752 : (1975 Cri LJ 1542). In the said decision the Supreme Court has held thus :
“It must be remembered that this Court is not a regular Court of appeal which an accused may approach as of right of criminal cases. It is an extraordinary jurisdiction which this Court exercises when it entertains an appeal by special leave and this jurisdiction, by its very nature, is exercisable only when this Court is satisfied that it is necessary to interfere in order to prevent grave or serious miscarriage of justice .
30. It can thus be seen that Article 136 of the Constitution does not confer on any party a right of appeal; nor for that matter the Supreme Court is a regular Court of appeal which can be approached by an accused person as of right and therefore the petitioners, who intend presenting applications under Article 136 for special leave to file appeals from the conviction and sentence before the Supreme Court, cannot avail of the benefit of Sub-section (3) of Section 389 of the Code.
31. In the light of the above position of law, as expounded by the Supreme Court, we could have stopped this discussion here. But the counsel for the petitioners argued that the words “intends to present an appeal” in Section 389(3) mean and include “intends to present a petition under Article 136 of the Constitution for special leave to file appeal from the sentence before the Supreme Court.” This approach to the issue is fallacious for the simple reason that the Supreme Court while exercising jurisdiction under Article 136 is “not a regular court of appeal” and hence not an “Appellate Court” within the meaning of Sub-section (1) of Section 389 of the Code; and therefore the petitioners are not entitled to the benefit of Sub-section (3) of S-389.
32. For another reason also the above argument cannot be countenanced. In this connection it is necessary to bear in mind one of the well established rules of construction of statutes namely that “no one section of a statute shall be read in isolation, but it should be construed with reference to the context and other provisions of the statute, so as, as far as possible, to make a consistent enactment of the whole statute.” M/s. Punjab Beverages Pvt. Ltd. v. Suresh Chand, (1978) 2 SCC 144 : (AIR 1978 SC 995). In short the ratio legis or the general purport of the statute must be kept steadfastly in view while construing the words used in any provision found in a statute. While construing any provision we must, therefore, have in view the context in which it occurs and also any other provision of the Act which throw light on the intention of the legislation in enacting the said provision. I am fortified in this view by the well known dictum of Lord Hershell in Colquhoun v. Brooks, (1889) 14 AC 493 at 506. It reads :
“It is beyond dispute too, that we are entitled and indeed bound when construing the terms of any provision found in a statute
to consider any other parts of the Act which throw light upon the intention of the legislature and which may serve to show that the particular provision ought not to be construed as it would be if considered along and apart from the rest of the Act.”
33. Now turning to Section 389(3) again the question which requires to be tackled in whether the words “intends to present an appeal” therein can be said to take in the words “intends to present a petition under Article 136 of the Constitution.” The determination of this question depends upon the interpretation of Section 389(3). But this subsection cannot be read in vacua because as already stated the ratio legis of the statute has to be gathered not from one provision of the statute or another but from the whole statute. The interpretation of the statute has to be ex visceribus actus. The much acclaimed dictum of Coke in Lincoln case, (1595) 3 Rep 58 b, throws considerable light on this aspect. It reads :
“The office of a good expositor of an Act of Parliament is to make construction of all parts together, and not of one part only by itself……. It is the most natural and genuine
exposition of a statute to construe one part of the statute by another part of the same statute for that best expresseth the meaning of the makers.”
The above dictum has been noted with approval by the Supreme Court in Punjab Beverages case : (AIR 1978 SC 995). We must therefore construe Section 389(3) not in isolation but in the light of the other relevant provisions of the Code. A reference in this connection to Section 415 of the Code is relevant and necessary. Sub-section (3) of Section 415 contains an express provision conferring on the High Court power to suspend the sentence for the period mentioned therein, if the High Court is satisfied that the person sentenced intends to present a petition under Article 136 before the Supreme Court. This power is different and distinct from the power vested in the High Court under Section 389(3) and Section 415( 1) and (2). Section 415(1) as in the case of Section 389(3), covers the case where the accused person has a right of appeal whereas Sub-section (2) of Section 415 is mean to be availed of by an accused person who presents a petition before the High Court for a certificate to file an appeal before the Supreme Court or who has already obtained a certificate to file an appeal before the Supreme Court.
34. The words used in these Sections are simple, plain, precise and unambiguous and therefore they must be given their natural and ordinary meaning. Given the natural and ordinary sense and meaning to the words “intends to present an appeal” in Section 389(3) in contradistinction to the words “intends to present a petition under Article 136” in Section 415(3), the ratio legis is clear that the benefit of Sub-section (3) of Section 389 can be availed of only by an accused person who has a right of appeal to the Appellate Court mentioned in Sub-section (1) thereof. In short the legislature has used the words “intends to present an appeal” and the words “intends to present a petition under Article 136 of the Constitution” in the Code distinctly and differently, to cover different situations and therefore there is no scope to vary the meaning of the words “intends to present an appeal” in Section 389(3) so as to include the words “intends to present a petition under Article 136 for special leave to file appeal before the Supreme Court.”
35. It therefore follows that this Court cannot in exercise of jurisdiction under Section 389(3) entertain the petitions and suspend the sentence or enlarge the petitioners on bail in terms of the prayers contained in the petitions.
36. The petitions therefore are liable to be rejected.
37. Dismissed.