ORDER
H.N. Narayan, J.
1. This reference arises under the following circumstances:
These two criminal appeals viz., Cri. A. No. 319 of 1997 connected with Cri. A. No. 67 of 1997 arising out of the judgment of the I Additional Sessions Judge, Bijapur, in S.C. No. 78 of 1991 have been disposed of by the Bench vide judgment dated 16-7-2002. The Division Bench allowed both the appeals filed by the accused and the State hold-
ing A1 guilty of the offence punishable under Section 304, Part II of the IPC who is sentenced to undergo R.I. for five years and also to pay a fine of Rs. 500/- with default clause and A4 is acquitted of the said offence. In the same judgment, the Bench reversed the judgment of acquittal recorded -by the Trial Court and convicted A2 to A4, A6 and A7 who are respondents in Cri. A. No. 319 of 1997 for an offence punishable under Section 324 of the IPC and sentenced them to undergo R.I. for six months and to pay a fine of Rs. 1,000/- each with default clause. The benefit of Section 428 of the Cr. P.C. is also extended to the accused persons. After disposal of these two appeals, an application was made before the Bench for extending the benefit under Section 4 of the Probation of Offenders Act in respect of R3 on the ground that the Bench imposed a sentence of imprisonment without hearing him. The Bench has dismissed his application by its order dated 25-7-2002. Another application under Section 389(3) read with Section 482 of the Cr. P.C. came to be filed on behalf of the accused persons to suspend the sentence imposed on the accused and enlarge them on bail as they intend to prefer an appeal before the Hon’ble Supreme Court by way of special leave against the judgment of the High Court. The Division Bench which heard this question at length was persuaded to accept the opinion expressed by the Kerala High Court in the case of Mammooty and Ors. v Food Inspector and Ors., However, in view of the opinion expressed by an earlier Division Bench of this Court in B. Subbaiah v State of Karnataka, 1992 (1}Kar. L.J. 419
, which is binding on the Bench of co-ordinate jurisdiction, the Bench felt that the serious question of law of general importance is required to be decided by a larger Bench so as to clarify the doubt arising out of these two views, referred this question to the larger Bench. Therefore, acting under Section 8 of the Karnataka High Court Act, the matter was placed before the Hon’ble Chief Justice who referred this matter before us.
2. The Bench has made the following specific point for our consideration:
“It is further made clear that the question of granting bail by the High Court acting under Section 389(3) of the Cr. P.C. or invoking inherent jurisdiction is the only question which is referred to the larger Bench for decision”.
Hence, the point of law which is referred to the larger Bench for its decision is, whether the High Court acting under Section 389(3) of the Cr. P.C. has jurisdiction to grant bail to a convict and whether the High Court has inherent jurisdiction to enlarge the accused person on bail where it has no jurisdiction to grant bail under Section 389(3) of the Cr. P.C.
3. We have heard the arguments of Sri S.K. Venkata Reddy, Sri C.H. Jadhav for the accused and Sri B.C. Muddappa, learned Additional State Public Prosecutor for the State.
4. This is a case where two of the accused persons have been convicted by the learned Sessions Judge for the offence punishable under Section 304, Part I of the IPC but acquitted other accused persons for the offence of murder and other offences. The High Court has modified both the penal provisions of sentence imposed on the convicted accused. It has also allowed the appeal filed by the State against the judgment of acquittal and convicted the other accused persons for the offence under Section 324 of the IPC and passed the sentence of imprisonment for a period of six months with fine. The convicted accused has a statutory right of appeal under Section 374(2) of the Cr. P.C. The High Court granted leave to appeal to the State against the order of acquittal passed by the Trial Court.
5. Before we take up the provisions of Sections 389 and 482 of the Cr. P.C. for our consideration, we think it proper to refer to the other provisions of the Cr. P.C. which enable us to appreciate the question of law raised in this reference.
6. Section 379 of the Cr. P.C. provides for an appeal against conviction by High Court in certain cases. Section 379 reads as follows:
“Where the High Court has, on appeal, reversed an order of acquittal of an accused person and convicted him and sentenced him to death or to imprisonment for life or to imprisonment for a term of ten years or more, he may appeal to the Supreme Court”.
7. Section 379 is a new section introduced in the 1973 Act. The Law Commission in its 41st Report recommended that where a person has been acquitted by the Trial Court of a capital offence and on appeal the High Court finds him guilty but sentences him to imprisonment for life instead of death, he should have a right of appeal to the Supreme Court, since there is no justification for restricting the right of appeal to cases where death sentence is awarded. But, this right is not extended to the cases where the accused is sentenced to imprisonment for 10 years or for a lesser period. Clause 389 of the Bill as drafted provides that where the High Court sentenced a person to imprisonment for life in an appeal against his acquittal, an appeal should lie to the Supreme Court. As recommended by the Joint Select Committee, an amendment was made to bring it in line with the provisions of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.
8. However, the Apex Court in the case of Podda Narayana and Ors. v State of Andhra Pradesh, observed that since the High Court had awarded the sentence of life imprisonment after reversing the order of acquittal passed by the Additional Sessions Judge, appeal to the Supreme Court lies even on facts and as a matter of right under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. In the case of Ram Kamar Panda v State of Madhya Pradesh,
the Apex Court held that no certificate of the High Court is required for
such an appeal where an acquittal has been converted into a conviction under Section 302 read with Section 34 of the IPC and a sentence of life imprisonment imposed upon an accused person. The appeal in such a case, lies as a matter of right to the Supreme Court under the Act of 1970. Similar view is also expressed by the Apex Court in a catena of decisions. In the cases of Chandra Mohan Tiwari and Anr. v State of Madhya Pradesh, and in Makwana Takhat Singh Ratan Singh v State of Gujarat,
the Apex Court held that under Section 379 which is in line with Article 134(1)(a) and (b) of the Constitution, an appeal lies as of right to the Supreme Court in a case where the High Court has on appeal reversed an order of acquittal and has convicted and sentenced the accused either to death or imprisonment for life or imprisonment for a term of 10 years or more. Therefore, the position of law that where the High Court reverses an order of acquittal passed by the Session Judge and convicted an accused and passed sentence of imprisonment of death or sentence of life imprisonment of 10 years or more, is appealable as of right either under Section 379 or under Article 134(1)(a) and (b) of the Constitution of India, is the settled position. Therefore, this question is no longer in dispute. The controversy is in respect of the remedy or relief provided to an accused person whose acquittal by the Trial Court is reversed by the High Court and sentenced for a period of less than 3 years in which case whether an accused who suffered this sentence of less than 3 years is entitled for suspension of sentence pending appeal and for bail under Section 389(1) and (3) of the Cr. P.C.
Section 389 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 sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail or 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 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”.
There is no dispute that there is a distinction between bail and suspension of sentence. Clause (1) of Section 389 enables the Appellate Court before which an appeal is pending filed by a convicted person to order suspension of sentence appealed against and if he is in confinement be released on bail or on his own bond. Clause (3) specifically provides that 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 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”.
The interpretation sought to be given to these provisions enshrined in Section 389(1) and (3) of the Cr. P.C. is that the Court which convicts an accused person by reversing an order of acquittal has power to suspend the sentence and release the convicted accused on bail provided the convicted person satisfies the Court by which he is convicted that he intends to present an appeal. The scope of this phraseology ‘intends to present an appeal has been the subject of controversy before a Division Bench of this Court in B. Subbaiah’s case, supra, and the Full Bench of the Kerala High Court in Mammooty’s case, supra, B. Subbaiah’s case, is decided by the Division Bench of this Court without reference to the judgment of the Full Bench of the Kerala High Court in Mammooty’s case, supra. In B. Subbaiah’s case, supra, the High Court confirmed the judgment of conviction passed against the accused-appellant. Immediately after the pronouncement of the order, the learned Counsel for the accused made another application under Article 134A of the Constitution of India praying for grant of certificate of fitness to appeal to the Supreme Court of India. A written application was also made praying for suspension of sentence on the ground that the accused-appellant was desirous of preferring an appeal to the Supreme Court. After considering the submissions made by the learned Counsel, the Bench was of the view that that was not a case for grant of certificate of fitness to appeal to the Supreme Court under Article 134A of the Constitution of India and rejected the application. After rejection of the oral application, the
learned Counsel pressed another application for suspending the sentence fora period of six weeks under Section 389(3) of the Cr, P.C. It was argued on behalf of the State that Section 389(3) of the Code is not at all attracted to this case. Section 389(3) gets attracted only where the accused has got right of appeal and the sentence imposed does not exceed three years, then for reasons recorded the Court refused to suspend the sentence and grant bail. The Court has suspended the sentence and granted bail so as to enable the accused to present an appeal and seek appropriate order in the Appellate Court. Since the High Court has rejected the oral application under Article 134A of the Constitution of India, he has no right of appeal. Therefore, Section 389(3) is not attracted. However, the learned Counsel for the accused-appellant sought to repel this submission contending that he intends to file an application under Article 136 of the Constitution of India before the Hon’ble Supreme Court and seek leave to appeal to the Supreme Court and therefore Section 389(3) of the Code gets attracted. It was further submitted on behalf of the State by the learned State Public Prosecutor that Article 134 confers no right of appeal, but only a provision to seek leave to appeal to the Supreme Court and only when leave is granted, the accused can prefer an appeal before the Hon’ble Supreme Court. On consideration of these rival contentions, the Bench held at para 6 as follows:
“We are entirely in agreement with the submission made by the learned State Public Prosecutor that Section 389(3) applies only to the case where there is a right of appeal and that Article confers no right of appeal and therefore, the accused cannot invoke Section 389(3) of the Code”.
9. Long prior to this decision of the Karnataka High Court, the Full Bench of the Kerala High Court in Mammooty’s case, supra, took a similar view after elaborate discussion of this question. This very question came up before the Full Bench of the Kerala High Court in Mammooty’s case, supra, when the two Division Benches of the Kerala High Court differed in their opinion on this question. This common question came up before the Full Bench of the Kerala High Court in some of the criminal appeals disposed of by the Division Benches. Some of the offences involved were bailable while others were non-bailable. But the sentence of imprisonment imposed in this case was over a period of less than 3 years. It was noticed that the petitioners had no “right of appeal” to the Supreme Court under any provision of the Constitution or Code. An oral application for certificate of leave under Article 134A was made in one criminal appeal which was rejected. However, the petitioners-accused before the Full Bench submitted that they intend to file special leave petitions before the Supreme Court under Article 136 and as such they are persons who intended to present an appeal before the Appellate Court as contemplated under Section 389(3) of the Code. They also sought an order of bail under Section 389(3) or alternatively in exercise of inherent power of the High Court under Section 482 of the Code. The Full Bench considered the provisions of Section 6 of the Code which enumerates Criminal Courts under the Codes besides the High Court. 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. 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 Full Bench of Kerala High Court observed that the provisions under Article 134(1)(c) is an extraordinary provision for which there is no parallel in the Code. Thus, it is observed that the petitioners had no right of appeal under the provisions of the Constitution or the Code and could only seek certificate from the High Court under Article 134A or seek special leave of the Supreme Court under Article 136 of the Constitution.
What exactly is the nature of an appeal by special leave is considered by the Apex Court in Durga Shankar Mehta v Raghuraj Singh and Ors.,
Speaking for the five Judges Bench, B.K. Mukherjea, J. (as he then was), has 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. While considering the scope and extent to which the provisions of Section 389(3) of the Code is applicable, the Full Bench of the Kerala
High Court at para 19 discussed the provisions with reference to Section 426 of the old Code. After considering various provisions of the Code in the Constitution of India, the Full Bench of the Kerala High Court held 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 (High Court) in reversal of the acquittal, though conviction is in regard to bailable offence or sentence is for a term not exceeding 3 years. This view is also stated by the Division Bench of the Karnataka High Court in B. Subbaiah’s case, supra. The views are expressed by both the High Courts after elaborate consideration of the rival contentions and upon elaborate consideration of the scope of Sub-section (3) of Section 389 of the Code. We have also given our careful consideration to the submissions at the bar and the views expressed by the Division Bench of the Karnataka High Court and the Full Bench of the Kerala High Court. We are in respectful agreement with the views expressed by them. Therefore, we find no merit in the contentions canvassed in this behalf by the learned Counsel appearing for the accused.
10. The second question which needs consideration is whether the High Court has inherent power under Section 482 of the Code to grant bail where bail is refused to convicted (accused) by the Court in exercise of its power under Section 389(3) of the Code.
11. In B. Subbaiah’s case, supra, the Division Bench was persuaded by the learned Counsel for the accused-appellant to grant bail in exercise of its inherent power under Section 482 of the Code and for suspension of sentence though the learned State Public Prosecutor opposed this submission on the ground that suspension of sentence pending appeal is covered by specific provisions of law in Section 389(3) of the Code and the power under Section 482 of the Code is not available. However, having regard to the fact that the appellant-accused has been on bail throughout and is stated to be suffering from serious ailment and has been admitted to a Nursing Home and is desirous of approaching the Supreme Court under Article 136 of the Constitution of India, that application was treated as having made under Section 482 of the Code and suspended the sentence of imprisonment for a period of six weeks and enlarged him on bail.
12. Whether bail can be granted in exercise of inherent power was considered by the Privy Council in Lala Jairam Das and Ors. v Emperor, AlR 1945 PC 94
The Privy Council held that Section 5G1-A of the Code confers no powers; it merely safeguards the existing inherent powers possessed by the High Court. Following the said decision and other cases, the Allahabad High Court in Gore Lal and Ors. v. Slate,
, held that the High Court has no statutory or inherent power to grant bail to, or suspend the execution of the sentence of, a person whose conviction and sentence it
has maintained, except where that person has been granted special leave to appeal under Article 136 of the Constitution, and in no other case. The extent to which this inherent powers can he used provided in SectJon 482 of the Cr. P.C. is settled by the Apex Court in the case of Janata Dal v H.S. Chowdhary and Ors.,
The Apex Court held that:
“Section 482 which corresponds to Section 561-A of the old Code and to Section 151 of the Civil Procedure Code proceeds on the same principle and deals with the inherent powers of the High Court. The rule of inherent powers has its source in the maxim “Quadolex aliquid alicui concedit, concedere videtur id sine quo ipsa, ess non potest” which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist.
The Criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.
The inherent power under this section can be exercised by the High Court (1) to give effect to any order passed under the Code; or (2) to prevent abuse of the process of any Court; or (3) otherwise to secure the ends of justice. The power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party. It should not be exercised as against the express bar of law engrafted in any other provision of the Code. The power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to the cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage”.
13. The same question also came up for consideration before the Full
Bench of the Kerala High Court in Mammooty’s case, supra. On this
question, the Full Bench of the Kerala High Court in Mammooty’s case,
supra, at para 23 of the judgment observed as follows:
“Alternatively it is contended that in case Section 389(3) of the Code is found inapplicable, the inherent power recognised 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”.
This view is expressed by the Kerala High Court in Mammooty’s case, supra, relying upon the authority of the Privy Council, Janata Dal’s case cited supra and also the observations made by the Division Bench of the same Court in K. Renganadha Reddiar v State of Kerala, 1.
. In this context we would like to emphasize the observation made by the Supreme Court in Janata Dal’s case, supra, that the power is not to be resorted to if there is a specific provision in the Code for the redressal of the grievance of the aggrieved party. It should not be exercised as against express bar of law engrafted in any other provision of the Code.
14. In view of the law declared by the Apex Court in Janata Dal’s case, supra, we find no difficulty at all to pronounce our opinion that the High Court has no inherent jurisdiction to grant bail in exercise of its power under Section 482 of the Cr. P.C. specially where the appellant is not entitled for suspension of sentence and bail under the provisions of Section 389(3) of the Cr. P.C. We also hold that the law laid down by the Division Bench of the Karnataka High Court in B. Subbaiah’s case cited supra on the question of exercising inherent power under Section 482 of the Cr. P.C. is not correct law. We answer this reference as follows:
(a) Unless a person (accused) has a right of appeal in law under the Code of Criminal Procedure or the Constitution of India, he is not entitled for suspension of sentence or bail;
(b) Where the Court has no power to suspend sentence and grant bail under Section 389(3) of the Code, it has no inherent power to grant bail in exercise of its power under Section 482 of the Code.