[BAIL] Questions & Answers By Justice V. Ramkumar- Post Sentence Bail [Part-I]

Q.1 The accused is charge sheeted by the police for an offence punishable under Section 326 IPC. He is on bail during the trial of the case. The Magistrate, after trial, convicts the accused and sentences him to rigorous imprisonment for 3 years. The convict satisfies the Magistrate that he intends to file an appeal and applies for bail under Section 389 (3) Cr.P.C. Is the Magistrate obliged to grant bail and which is the provision of law that is attracted?

Ans. The Magistrate is bound to grant bail in view of the employment of the word “shall” in Section 389 (3) Cr.P.C. The case falls under Section 389 (3) (i) Cr.P.C.

Q.2 In the above case, after convicting the accused and sentencing him to imprisonment for 3 years, the Magistrate granted bail to him under Section 389 (3) (i) Cr.P.C. for 2 months. The accused files an appeal before the Sessions Court under Section 374 (3) Cr.P.C and obtains an order under Section 389 (1) Cr.P.C suspending the sentence and releasing him on bail. Subsequently, the Sessions Judge confirms the conviction entered and sentence passed by the Magistrate. The accused files an application before the Sessions Court for bail under Section 389 (3) Cr.P.C after satisfying the Sessions Court that he intends to file an appeal before the High Court. Is not the Sessions Judge bound to grant bail?

Ans. No. The Sessions Court is not the Court by which the accused is convicted. Moreover, the right of appeal to the High Court available to the accused under Section 374 (2) Cr.P.C is only against a conviction on a trial held by the Sessions Judge. Here the trial was held by the Magistrate and the accused already availed of the right of appeal to the Sessions Court under Section 374 (3) Cr.P.C. If the accused has no right of appeal, he cannot file a petition under Section 389 (3) Cr.P.C and the Sessions Judge also cannot grant bail under Section 389 (3) Cr.P.C. (Vide Mammootty and Others v. Food Inspector and Others AIR 1986 Kerala 270 = 1986 KLT 113 = 1986 KHC 37 (Kerala - FB) - U. L. Bhat, Radhakrishna Menon, John Mathew - JJ.)

Q.3 In the above case, if the Magistrate, instead of convicting the accused, passes an order of acquittal which is challenged by the Public Prosecutor on behalf of the State by filing an appeal before the Court of Session under Section 378 (1) (a) Cr.P.C. The Sessions Court reverses the acquittal and convicts the accused and passes a sentence of rigorous imprisonment for 3 years. Is not the accused entitled to file a petition for bail under Section 389 (3) (i) Cr.P.C. and is not the Sessions Court “the Court by which the accused was convicted” within the meaning of Section 389 (3) (i) Cr.P.C. ?

Ans. No. Even though the Sessions Court can be said to be the Court by which the accused was convicted within the meaning of Section 389 (3) (i) Cr.P.C., a person who has been convicted by the Sessions Court in appeal against the acquittal passed by the trial Court, cannot be said to be “a person convicted on a trial held by a Sessions Judge” within the meaning of Section 374 (2) Cr.P.C. so as to maintain an appeal before the High Court. If he has no right of appeal to the High Court, there is no question of the convict satisfying the Sessions Court that he intends to file an appeal and seeking bail under Section 389 (3) (i) Cr.P.C. from the Sessions Court. (Vide Mammootty and Others v. Food Inspector and Others AIR 1986 Kerala 270 = 1986 KLT 113 = 1986 KHC 37 (Kerala FB) - U. L. Bhat, Radhakrishna Menon, John Mathew - JJ.)

(Consequent on the amendment of the Cr.P.C. providing for an appeal to the Court of Session against an acquittal by the Magistrate, Section 374 Cr.P.C. ought to have been amended to provide for an appeal to the High Court not only against conviction on a trial by the Sessions Court but also against conviction in an appeal by the Sessions Court)

Q.4 Will it make any difference if in the above case the accused was not on bail at the time of passing the sentence by the Magistrate?

Ans. Yes. In that case he will not be entitled to seek bail under Section 389 (3) (i) Cr.P.C. He may have to move the appellate Court under Section 389 (1) Cr.P.C for suspension of the sentence.

Q.5 Is there any distinction between the words “being on bail” occurring in clause (i) of Section 389 (3) Cr.P.C and the words “he is on bail” occurring in clause (ii) of Section 389 (3) Cr.P.C?

Ans. Yes. Clause (i) obviously applies only in the case of trial for a non-bailable offence in which case the accused may be or may not be on bail when the sentence is pronounced. Hence that clause will be applicable only in cases where the accused “being on bail is sentenced to imprisonment”. In other words, in order to bring the case under clause (i), at the time when the sentence is passed, the accused should be on bail. Clause (ii) of Section 389 (3) applies only to bailable offences and except in rare cases where the bail bond of the accused has been cancelled under Section 446-A Cr.P.C, he will invariably be on bail.