1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISCELLANEOUS APPLICATION NO. 302/2008. IN CRIMINAL REVISION APPLICATION NO.77 OF 2008. Shri Dhondu Raghoba Govekar, R/o H. 543, Guddem, Siolim, Bardez, Goa. .... Applicant. Versus State Through the Public Prosecutor High Court, Panaji. ..... Respondent. Mr. V. A. Lawande, Advocate for the Applicant. Ms. W. Coutinho and Mr. C. A. Ferreira, Public Prosecutor for the respondent. Mr. S.G. Bhobe, Amicus Curiae. CORAM :- A. P. LAVANDE, J. Date of reserving the order : 8 th December, 2008. Date of pronouncing the order : 18 th December, 2008. ORDER : 1. By this application, the applicant seeks suspension of sentence and bail during pendency of the revision application, preferred by him against the judgment and order dated 24.10.2008 passed by the learned Session Judge, North Goa, Panaji in Criminal Appeal 2 No.34/2007. 2. The applicant along with two others were prosecuted for having committed the offences under Sections 324, 307 and 504 read with Section 34 of Indian Penal Code. The Ad hoc Assistant Session Judge, Mapusa by the judgment and order dated 30.04.2007 passed in Sessions Case No.34/2005, convicted all the three accused for the offence punishable under Section 324 read with Section 34 of Indian Penal Code and sentenced the applicant to undergo simple imprisonment for a period of 45 days and to pay fine of Rs.200/- and in default of payment of fine, to undergo further simple imprisonment for a period of 4 days. Against the judgment and order, the applicant and another accused, preferred Criminal Appeal No.34/2007 and the third accused preferred Criminal Appeal No.50/2007. The learned Session Judge, North Goa, Panaji by common judgment and order dated 24.10.2008, dismissed both the appeals thereby maintaining the conviction and sentence imposed by the Trial Court. The learned Session Judge directed all the accused to surrender before the Trial Magistrate to comply with the sentences imposed upon them within a period of one month from the date of passing the order. 3. When the revision application filed against the judgment and order of conviction and sentence passed by the learned Session 3 Judge and the application for suspension of sentence and grant of bail, were taken up, the learned Counsel for the applicant, was called upon to satisfy this Court as to under which provision of law, the learned Session could have been granted time of one month to surrender before the Trial Court. The learned Counsel for the applicant sought time which was granted. 4. I have come across a number of Criminal appeals disposed of by the Session Judges / Additional Session Judges in the State of Goa in which the learned Judges, while maintaining the conviction of sentence of imprisonment, have granted time to the accused to surrender before the Magistrate after maintaining the conviction and sentence passed by the learned Magistrate. Since the orders granting time to surrender, after maintaining the conviction and sentence of imprisonment, appeared to me to be without any authority of law and as such without jurisdiction, I deemed it appropriate to appoint Advocate S. G. Bhobe as Amicus Curiae so that the issue is decided finally. 5. I have heard Mr. V. A. Lawande, learned Counsel for the applicant, Ms. W. Coutinho and Mr. C. A. Ferreira, learned Public Prosecutors for the State of Goa and Mr. S. G. Bhobe, learned Amicus Curiae. 4 6. Mr. Lawande, learned Counsel appearing for the applicant submitted that the Lower Appellate Court, after maintaining the judgment and order of conviction and sentence of imprisonment, has no power to take the accused into custody. The learned judge, necessarily should direct the Trial Magistrate to execute the sentence of imprisonment imposed on the accused. According to the learned Counsel, the accused is not required to surrender before the High Court before the revision is taken up for hearing or before passing an order of suspending substantive sentence of imprisonment. The learned Counsel placed reliance upon the following judgments : i) Bihari Prasad Singh Versus State of Bihar and another reported in (2000) 10 SCC 346. ii) Easwaramurthy Versus N. Krishnaswamy reported in 2006 CRI. L.J. 4105. 7. Ms. Coutinho, learned Public Prosecutor submitted that there is no provision in the Criminal Procedure Code which gives power to the Lower Appellate Court to suspend the sentence of imprisonment or to grant time to the accused after conviction and sentence of imprisonment, is maintained. According to learned Public Prosecutor, the order passed by the learned Session Judges granting time to the applicant to surrender, is patently without jurisdiction. 5 8. Mr. Ferreira,learned Public Prosecutor submitted that once the Lower Appellate Court maintains the judgment and order of conviction and sentence of imprisonment, the Lower Appellate Court has no jurisdiction to grant time to surrender and granting of time, in fact, amounts to suspension of sentence, which power, the Lower Appellate Court, does not possess. According to the learned Public Prosecutor, the Lower Appellate Court is obliged to take the accused in the custody, once the sentence of imprisonment, is maintained in terms of Section 418 of Criminal Procedure Code. 9. Mr. Bhobe, learned Amicus Curiae submitted that the Lower Appellate Court has no jurisdiction to grant time to surrender after the judgment and order of conviction and sentence, is maintained or modified. However, it is not necessary for the Lower Appellate Court, in all cases, to direct the accused to remain present at the time of judgment in as much as there may be cases in which the findings given by the Magistrate while convicting the accused, are absolutely perverse and, therefore, it would be unjust for the Lower Appellate Court to insist upon the physical presence of the accused even when the Appellate Court acquits the accused of the offence/ offences for which he has been convicted by the learned Magistrate. Mr. Bhobe, therefore, submitted that the Lower Appellate Court should insist upon the physical presence of the accused, if he maintains or modifies the sentence of imprisonment 6 and in such a eventuality, the Lower Appellate Court is obliged to take the accused into custody and send him to prison to suffer imprisonment imposed by the learned Magistrate, confirmed or modified by the Lower Appellate Court. Mr. Bhobe submitted that in terms of Section 387 of the Code although the provisions of rules contained in Chapter 27 as to the judgment of Criminal Courts, are applicable to the judgment in appeal rendered by the Court of Sessions in terms of the proviso to the said Section, the accused is not bound to appear before the Appellate Court to hear the judgment delivered unless otherwise directed by the Appellate Court. He, therefore, submitted that the Lower Appellate Court has to ensure the presence of the accused / appellant at the time of the judgment only in case the sentence of imprisonment, is maintained or modified. 10. In support of his submissions, Mr. Bhobe relied upon the judgment of this Court reported in Moinoddin S/o Khodboddin Versus State of Maharashtra reported in (2003) 2 IILLJ 1040 Bom. and another judgment of this Court in Dilip Ramchadra Umare Versus State of Maharashtra reported in 1996 Cri.L.J. 721. 11. I have considered the submissions made by the learned Counsel for the applicant, learned Public Prosecutors and the learned Amicus Curiae. I have also perused the judgments relied upon. 7 12. In view of the above submissions, the question which arises for consideration of this Court, is whether the Lower Appellate Court, after maintaining the conviction and sentence of imprisonment or modifying the same, has power to grant time to the accused to surrender before the Magistrate to suffer the sentence imposed on him and if not, what procedure is to be followed by the Lower Appellate Court in the event, the Lower Appellate Court maintains the order of sentence of imprisonment or modifies the same. 13. The issue as to whether the Lower Appellate Court has power to suspend the sentence after the conviction and sentence imposed on him by the learned Magistrate, is confirmed or modified is concerned, the same is no more res integra. The learned Single Judge of this Court, in Dilip Umare's case (supra), after observing that in number of cases, the Session Judges, the Additional Session Judges and Associate Session Judges, as the case may be, were suspending the sentence, even after dismissal of the appeal against the conviction and sentence, to enable the accused to prefer revision before the High Court and obtain appropriate orders, held that the Lower Appellate Court did not have any such power. The leaned Judge held that once the Lower Appellate Court hears and decides the appeal against the conviction and sentence passed by the Trial Court, it becomes functus officio and 8 ceases to have any power to suspend the sentence or grant bail, even temporarily, to enable the accused to approach the High Court by filing revision application and to obtain appropriate orders from the High Court. The learned Judge recorded this finding after considering the powers of the Appellate Court under Section 386 and 389 of the Code of Criminal Procedure. I am in respectful agreement with the view taken by the learned Judge in the said case. 14. In Moinoddin's case (supra), the learned Single Judge of this Court, after placing reliance upon the judgment in the case of Dilip Umare's case (supra), and considering Section 387, 353(5) and 353(6) of the Code of Criminal Procedure as well as instructions issued by this Court in Criminal Manual for the guidance of Criminal Courts and officers subordinate to it, made observations regarding the same in paragraph Nos. 13 to 15 of the judgment. In would be appropriate to quote paragraph Nos. 13 to 15 of the judgment in Moinoddin's case (supra), which read thus : 13. In this context, a reference may be made to a judgment of this Court (Coram R.M.Lodha, J.) in Dilip V. State of Maharashtra 1996 Cri.L.J.721, and more particularly contents in paras. 5 and 7 of the judgment. It is evident that lower appellate Court after confirming the conviction, has no power to suspend the sentence, even if 9 appellant may express his desire to prefer revision against the said conviction. The order directing the appellant accused to surrender after a week, in effect, resulted into suspension of sentence, by granting him some time to surrender. 14. Reading proviso to Section 387 of the Criminal Procedure Code, it may be argued that, it is not mandatory upon the appellate Court to direct the accused to be brought up or required to attend, to hear the judgment delivered because of the words “shall not” incorporated in the proviso. However, this proviso is required to be read in the light of Section 387 read with Sections 353(5) and 353(6). Provisions regarding the judgment, as contained in Chapter XXVII of the Criminal Procedure Code are applicable to the judgment of subordinate appellate Court and in Section 387 also the words used are “shall apply”. The proviso to Section 387, therefore, shall stand controlled by the provisions contained in Sections 353(5) and 353(6) and, therefore, the subordinate appellate Court will be obliged to secure the presence of accused/appellant before it for pronouncement of judgment except in the cases wherein the judgment is of acquittal or one of fine only. Once the presence of appellant-accused is secured or the purpose of pronouncement of judgment confirming the conviction with substantive sentence, as observed in the matter of Dilip V.State of Maharashtra (supra) the Subordinate Appellate Court would become functus officio and cannot suspend the sentence or grant bail in order to enable the accused to prefer revision before the High Court. The only course available, therefore, would be to execute the order of 10 conviction confirmed by it, leaving the accused to obtain suspension of sentence and bail from the High Court by preferring appropriate revision. 15. On reference to criminal manual of instructions issued by the High Court of Judicature, Appellate Side, Bombay, for the guidance of criminal Courts and officers subordinate to it, the same contains Form XV regarding “warrant to jailor, in the case of a prisoner at first released on bail pending the disposal of appeal to the Appellate Court, but subsequently rearrested in Court on the dismissal of the appeal or reduction or alteration of sentence, and forwarded to jail to undergo the remaining portion of the sentence.” The contents of the warrant clearly indicate that the warrant is to be issued by the Court confirming the conviction and accused appellant cannot be directed to surrender to the trial Court for issuance of conviction warrant. 15. In Moinoddin's case (supra), after considering Section 387, 353(5) and 353(6) has held that the proviso to Section 387, is controlled by the provisions contained in Sections 353(5) and 353(6) and, therefore, the subordinate appellate Court is obliged to secure the presence of the accused / appellant before it, for pronouncement of judgment except in the case where the judgment is of acquittal or where fine only is imposed.. The learned Judge, after placing reliance upon the judgment of Dilip Umare's case (supra), has held that once the subordinate Appellate Court passes the judgment of conviction and 11 sentence of imprisonment, it would be functus officio and cannot suspend the sentence or grant bail and only course available, would be to execute the order of conviction and sentence, confirmed by it leaving it on the accused to obtain sentence suspended from the High Court by preferring the revision application. The learned Judge, after referring to Form XV of Criminal Manual and instructions issued by this Court, held that the said Form clearly indicates that the warrant has to be issued by the Court confirming the conviction and sentence and the accused cannot be directed to surrender before the Trial Court. I am in agreement with the view taken by the learned Single Judge in Moinoddin's case (supra). 16. Mr. Ferreira, learned Public Prosecutor is justified in placing reliance upon Section 418 of Criminal Procedure Code. In terms of Section 418 of the Code, the Lower Appellate Court is bound to forward the appellant / accused to jail in case substantive sentence of imprisonment, imposed on the accused, is maintained or modified, except in a case where the accused is sentenced to imprisonment till rising of the Court. 17. In view of the above judgments and considering the relevant provisions of Criminal Procedure Code referred to above, what emerges is that the Lower Appellate Court does not have power to 12 suspend the sentence or to grant time to the accused to surrender after the judgment of conviction and sentence of imprisonment, is maintained or modified. In such case, the Lower Appellate Court cannot grant time to the accused to surrender before the Magistrate. No such power is vested in the Lower Appellate Court. 18. When an appeal is preferred by the accused against the judgment and order of conviction and sentence of imprisonment, the Lower Appellate Court ought to ensure that the accused remains present at the time of judgment when the sentence of imprisonment imposed by the Magistrate, is confirmed or modified. This can be achieved by passing appropriate orders at the time of suspension of sentence or at the conclusion of final arguments in the appeal, in case the judgment is reserved. In case, the Lower Appellate Court decides to maintain or modify the sentence of imprisonment imposed on the accused, the Lower Appellate Court ought to direct the accused to remain present at the time of the judgment. However, in case the accused / appellant in spite of such directions, chooses not to remain present, the Lower Appellate Court need not postpone the pronouncement of judgment. The Lower Appellate Court is entitled to pronounce the judgment and invoke the powers under subsection (2) of Section 418 of the Code and issue warrant for his arrest for the purpose of forwarding him to the jail to suffer the sentence imposed on him. Upon harmonious reading of 13 the provisions of the Code of Criminal Procedure and more particularly Sections 386, 389, 353(5), 353(6), 387 and 418 of the Code of Criminal Procedure, the only conclusion that can be drawn, is that the Lower Appellate Court is obliged to follow the procedure as mentioned above. 19. I do not deem it necessary to refer to the judgments relied upon by Mr. Lawande since they are not relevant for deciding the issue involved in the present application. 20. This Court by order dated 24.11.2008 has suspended the substantive sentence by granting ad interim relief and pursuant to the said order, the applicant has been released on bail. During pendency of the revision application, the said order is confirmed. 21. The Session Judges, Additional Session Judges and Assistant Session Judges in the State of Goa shall follow the directions given above while dealing with the appeals against the judgment and order of conviction and sentence of imprisonment imposed upon the accused. The Registrar shall circulate the copies of this order to the learned Session Judges, who shall circulate the copies of the same to all other Lower Appellate Courts dealing with the Criminal appeals. 22. I would like to place on record a word of appreciation to 14 Advocate S. G. Bhobe, learned Amicus Curiae for valuable assistance rendered by him in deciding the issue dealt with in this application. The application stands disposed of in the aforesaid terms. A. P. LAVANDE, J. SMA