Rajudas vs State of Chhattisgarh

R.S. Garg, J.—Heard.

It appears that in Sessions Trial No. 243 of 1995 the applicant was convicted and being aggrieved by the said judgment he preferred Criminal Appeal No. 2148 of 1997. On 14-2-2000 the High Court directed that the matter be remitted to the trial Court so that the present applicant may further cross-examine the witnesses. As the witnesses were not turning after remittance of the matter the applicant filed an application before the trial Court for his release u/s 439, Cr.P.C. The trial Court had rejected the application. Being aggrieved by the said order the applicant has come to this Court.

True it is that the learned trial Court has rejected the application on the ground that the facts were such under which the applicant was not entitled to bail but in the opinion of this Court, the trial Court, in fact, had no jurisdiction to entertain an application u/s 439, Cr.P.C. The provisions of Section 439, Cr.P.C. apply to a situation where the accused is under trial prisoner and the final verdict is yet to come. In a case where the accused is convicted then the appellate Court would have jurisdiction to suspend the execution of the sentence u/s 389, Cr.P.C. The Court awarding the sentence has limited jurisdiction to suspend execution of the sentence if during the course of the trial the accused was on bail and the award of the jail sentence is less than three years. Even in such a case, the trial Court would grant bail to the accused for a limited period enabling him to obtain an order from the appellate Court. In the present case, the judgment and conviction delivered/recorded by the trial Court are still in force. As the applicant stands convicted, the provisions of Section 439, Cr.P.C. would not be applicable.

The application is dismissed as not maintainable. The applicant is free to make an appropriate application in the pending criminal appeal.

Let a copy of this order be sent to the Vth Additional Sessions Judge, Bilaspur for information.