Sessions Court Cannot Suspend Accused's Sentence Solely To Enable Filing Of Revision Plea: Gujarat High Court

The Gujarat High Court has said that there is no provision in the CrPC/BNSS which empowers the first appellate court to suspend the sentence or release an accused solely on the ground of enabling him to file a revision plea challenging conviction before Higher Courts.

The court observed that the legislature did not intend to confer power to the appellate Court to stay or suspend the sentence or to extend the time granted to the accused to surrender so as to enable him to file revision application. 

The high court was considering whether sessions court after pronouncement of order of conviction and sentence, can stay its own sentence order and release the accused on bail to approach Higher Courts, despite the accused remaining absent and not surrendering before the first appellate Court at the time of pronouncement.

The court was hearing pleas moved by the petitioners challenging sessions court's (first appellate court) order confirming the trial court's conviction for offences under IPC Section 342(wrongful confinement), 114(Abettor present when offence is committed) and 34(common intention). The petitioners were sentenced to undergo 3 months imprisonment.

Before the sessions court the petitioners had filed applications seeking benefit under Probation of Offenders Act and to stay the sentence for 15 days. The sessions court had dismissed the applications for extending benefit under Probation of Offenders Act. It had however allowed the plea seeking stay of sentence, so that petitioners can move revision petitions before the high court. 

Justice RT Vachhani in his order observed:

"The sum and substance as amalgamated from the above discussions while equating with the proposition of law laid down by the Hon'ble Apex Court makes it crystal clear that so far as the release of accused on bail or to extend the time to surrender for filing revision application is concerned, there is no provision anywhere in the Code, which may enable the Court of appeal to suspend the sentence or to release the applicant – accused on bail solely on the ground that he intends to file a revision application before Higher Courts".

"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," the court added.

The court also note that once accused is  convicted and sentenced by the trial Court which is affirmed by the first appellate Court, then in view of Section 418 CrPC/Section 458 BNSS which relates for execution of sentence of imprisonment, the accused has to be sent to jail for execution of sentence. 

Thus, the high court, the first appellate Court becomes "functus officio" (no longer having official authority/holding office) after pronouncement of the order of sentence. 

It observed that Section 418(2) CrPC clearly 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 the jail.

In the present case, the court noted that the petitioners (accused) were not present before the appellate court at the time of pronouncement of sentence. Thereafter they 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.

While the first appellate Court rejected the application to grant benefit under the Probation of Offenders Act, it however allowed the application seeking stay against the order of sentence for a period of 15 days, thereby releasing petitioners on bail, the court noted.

"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," the high court said. 

The high court said that the petitioners not remaining present at the time of pronouncement of judgment but sought exemption as well as suspension of sentence later on for 15 days, "speaks volume about the conduct and demeanor on the part of the petitioner – accused by marching over the legal process of the Court".

"Resultantly, the reliefs granted by the learned first appellate Court does not have any legs to stand in the eyes of law as after disposing the appeal, the learned first appellate Court becomes functus officio and seized with any power to exercise post disposal of the appeal. However, by doing so as in the present case, the learned Sessions Judge concerned has indirectly tantamount by suspending the sentence and releasing the convicted accused on bail," the court said. 

The high court also noticed that it had come across on a number of occasions instances where the first appellate Court in absence of any powers under the law had extended the time to surrender to the accused or grant time to the accused to file revision application after pronouncement of order of sentence.

The high court said that such directions cannot be issued by the first appellate Court. It said that after pronouncement of sentence order and in absence of any legal immunity, the only recourse available with the first appellate Court is to forthwith relegate the case-papers to the Court concerned for execution of the sentence of imprisonment as per Section 418 CrPC.

The court thus directed its Registry, after obtaining the necessary orders from the Chief Justice on administrative side, to circulate the high court's order through Electronic Mode amongst the Presiding Officer/s of the Court/s across the State and to bring to their notice this aspect. 

The court dismissed the revision petitions.

Case title: GIRISH HARSUKHRAY VASAVADA & ANR v/s SHANKARLAL GOVINDJI JOSHI & ANR.

R/CRA(AGAINST CONVICTION) 1856 of 2025 and related petitions

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