No Provision In CrPC Empowering Appellate Court To Release Accused On Bail Or Suspend Sentence So As To Enable Him To File Revision Application: Gujarat High Court

The High Court was considering the applications filed by the petitioners – accused seeking exemption from surrender in connection with the sentence imposed upon them by the Trial Court, and further during pendency and till final hearing to extend the stay granted by the first Appellate Court. The Petitioners-accused also sought suspension of sentence imposed upon the them and release of the petitioners – accused on bail pending the hearing of the revision applications.

The Single Bench of Justice R. T. Vachhani held, “The legislature has made specific provision as per sub-section (3) of Section 389 of the Code to release the accused on bail when he intends to prefer an appeal and as such there is no provision at all anywhere in the Code empowering the Court to release the accused on bail or suspend the sentence in case, he intends to file revision application the Court convicting the accused. Thus, in view of the aforesaid, it can be sum up that the legislature did not intend to confer any such power in such circumstances to the appellate Court to stay and / or suspend and to keep the order in abeyance or to extend the time to surrender to the accused so as to enable the accused to file revision application.”

Senior Advocate Mihir Joshi represented the Appellant while Additional Advocate General Mitesh Amin represented the Respondent.

Factual Background

The petitioners – accused, after the pronouncement of the judgment and order by the first appellate Court confirming the conviction and sentence, moved two different applications before the first appellate Court seeking to extend the benefit of the Probation of Offenders Act and to stay the order of serving the sentence for a period of fifteen days. The first appellate Court had dismissed the applications seeking to extend the benefit under the Probation of Offenders Act; whilst allowing the application seeking a stay against the order of sentence passed by the trial Court for a period of 15 days’ with a view to obtaining the appropriate orders by way of filing revision applications from the Gujarat High Court.

Reasoning

The Bench explained that once accused having convicted and sentenced by the Trial Court which has been affirmed by the first appellate Court, in view of provisions of Section 418 of the Code of Criminal Procedure, 1973 (Section 458 of the BNSS) which relates for execution of sentence of imprisonment, the accused concerned is required to be sent jail for execution of the sentence and thus the first appellate Court becomes functus officio after pronouncement of the order of sentence. Reference was made to Sub-section (2) of Section 418 of the Code, which provides that if the accused is not present in the Court when he is sentenced to such imprisonment as mentioned in sub-section (1), the Court shall issue a warrant for his arrest for the purpose of forwarding him to jail.

Coming to the facts of the case, the Bench noted that the petitioners – accused were not present before the first appellate Court at the time of pronouncement of the sentence and thereafter, moved two different applications seeking to extend the benefit under the Probation of Offenders Act and further to stay the order of serving the sentence for a period of fifteen days. The first appellate Court rejected the application to grant the benefit under the Probation of Offenders Act and allowed the application seeking a stay against the order of sentence for a period of 15 days while releasing the petitioners–accused on bail. “Thus, the learned Sessions Judge concerned in absence of any statutory powers conferred upon him committed serious error of law and has not followed the mandate of Section 418(2) of the Code”, it held.

The Bench asserted, “Since this Court has been dealing with similar such cases like the present one and have come across number of occasions where the learned first appellate Court in absence of any powers available under the law has extended the time to surrender to the accused concerned or to grant the time to file revision application after pronouncement of order of sentence, this Court feels that such directions cannot be issued by the learned first appellate Court; after pronouncement of order of sentence in absence of any legal immunity and the only recourse available with the learned first appellate Court is to forthwith relegate the case-papers to the Court concerned for execution of the sentence of imprisonment as per the provisions of Section 418 of the Code of Criminal Procedure, 1973…”

Thus, rejecting the application, the Bench directed the Registry to obtain necessary orders from the Chief Justice on the administrative side and circulate the order through Electronic Mode amongst the Presiding Officer/s of the Court/s across the State of Gujarat and to bring to their notice the said aspect while passing such order.

Cause Title: Girish Harsukhray Vasavada v. Shankarlal Govindji Joshi (Case No.:R/Criminal Revision Application (Against Conviction) No. 1856 of 2025)

Appearance

Petitioner:Senior Advocates Mihir Joshi, I. H. Syed, Advocate Rahul Sharma

Respondent: Additional Advocate General Mitesh Amin, Public Prosecutor Hardik Dave, Advocate K. J. Panchal

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