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

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.

Q.6 The accused in a bailable offence punishable under Section 474 IPC is on bail during the trial of the case. He is convicted and sentenced to imprisonment for 5 years by the Chief Judicial Magistrate. He applies for bail under Section 389 (3) Cr.P.C. Is the Magistrate obliged to grant bail?

Ans. Yes. The case falls under Section 389 (3) Clause (ii) as per which there is no limit fixed for the sentence unlike in the case of clause (i) where the limit fixed is “not exceeding 3 years”.

Q.7 The accused is prosecuted for an offence punishable under Section 326 IPC by means of a private complaint. The accused is on bail. The Magistrate after trial acquits the accused. The complainant victim files an appeal before the Sessions Court under the proviso to Section 372 Cr.P.C. The Sessions Court reverses the finding of the trial Court and convicts the accused and passes a sentence of rigorous imprisonment for 3 years. The accused satisfies the Sessions Court that he intends to file an appeal and files an application for bail under Section 389 (3) (i) Cr.P.C. Is not the Sessions Judge bound to grant bail ?

Ans. No. The accused who is convicted in an appeal filed under the proviso to Section 372 Cr.P.C., has no right of appeal provided under the Cr.P.C. His remedy, if any, may be a revision.                                          

(Consequent on the incorporation of the proviso to Section 372 Cr.P.C. providing for an appeal by the victim against an order of acquittal by the Magistrate, Section 374 Cr.P.C. ought to have been suitably amended so as to provide for an appeal to the High Court against conviction by the Sessions Judge in appeal.)

Q.8 A person is found guilty by the High Court of “criminal contempt” as defined under Section 2 (c) of the Contempt of Courts Act, 1971 and sentenced to simple imprisonment for 6 months under Section 12 of the said Act. The contemnor applies under Section 389 (3) Cr.P.C. for suspension of sentence by showing that he intends to file an appeal to the Supreme Court. He contends that by virtue of Section 4 (2) Cr.P.C. Section 389 (3) squarely applies in the case of a sentence passed under the Contempt of Courts Act. Can the High Court refuse his request ?

Ans. As per Section 4 (2) Cr.P.C., the provisions in the Cr.P.C. will apply to a special law only subject to such special law. Under section 19 (3) of the Contempt of Courts Act, 1971 the power of suspension given to the High Court with regard to the punishment imposed by the High Court, is only discretionary due to the employment of the word “may” as against the word “shall” employed in Section 389 (3) Cr.P.C. indicating thereby that every sentence for a term not exceeding 3 years should be mandatorily suspended if the convicted person satisfies the Court that he intends to file an appeal against the conviction and sentence. Hence, to that extent, the provision in Section 19 (3) of the Contempt of Courts Act will prevail over Section 389 (3) Cr.P.C. That is the reason why the sentence passed against Mr. M. V. Jayarajan, a former MLA who was convicted for criminal contempt, was not suspended by the Kerala High Court.