The lower appellate court does not have the power to suspend the sentence after the decision of the appeal.

JUDGMENT - Lodha R.M., J.:—Heard Smt. K.V. Sirpurkar, learned Counsel for the applicant. Rule returnable forthwith. Shri K. S. Dhote, Additional Public Prosecutor, waives service on behalf of the State. At the request of both the learned Counsel, this revision application is heard and disposed of at this stage finally.

2. The first and foremost point which requires to be considered before I advert to the arguments advanced by the learned Counsel for the applicant, is whether the lower Appellate Court under the Code of Criminal Procedure, 1973 has power to suspend the sentence or grant bail to enable the accused to prefer Revision Application before High Court after the appeal against the conviction and sentence has been decided. In large number of cases, it has been found that the Sessions Judge, Additional Sessions Judge, the Joint Sessions Judge, or the lower Appellate Court as the case may be, suspends the sentence for some time even after disposal of appeal against the conviction and sentence to enable the accused to prefer Revision Application before High Court and obtain appropriate orders. The Code of Criminal Procedure does not confer any inherent jurisdiction on the lower Appellate Court to directly or indirectly suspend the sentence after decision of the appeal. Nor there is any specific power conferred on the lower Appellate Court under the Code of Criminal Procedure to suspend the sentence on decision of appeal against the Judgment of conviction and sentence. Obviously, the power of suspension of sentence can only be exercised if the Code of Criminal Procedure so permits and not otherwise. There is neither any power of suspension of sentence nor grant of bail implicit in the lower Appellate Court after decision of the appeal against the Judgment of conviction and sentence, nor such power is inherent. 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 ceases to have any power in the matter to suspend the sentence or grant bail even temporarily to enable the accused to approach High Court by filing revision application and to obtain appropriate orders from High Court.

3. Smt. Sirpurkar, the learned Counsel for the applicant, however, submits that such power is vested in the lower Appellate Court and even after the appeal against the conviction and sentence is decided by the lower Appellate Court and the sentence is maintained or modified, the lower Appellate Court has power to suspend the sentence, and in that connection she relies upon the provisions of sections 386(e) and 389(3) of the Code of Criminal Procedure, 1973. Shri Dhote, the learned Additional Public Prosecutor, on the other hand, submits that the lower Appellate Court does not have any power to suspend the sentence after the decision in the appeal, and exercise of such power by the lower Appellate Court is without any jurisdiction and does not flow from any of the provisions of the Code of Criminal Procedure.

4. Section 386 of the Code of Criminal Procedure deals with the powers of the Appellate Court and sub-section (e) thereof, referred to by the learned Counsel for the applicant, reads as under:

“386. Powers of the Appellate Court.—After perusing such record and hearing the appellant or his pleader, if he appears and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may –

(a) … … …

(b) … … …

(c) … … …

(d) … … …

(e) make any amendment or any consequential or incidental order that may be just or proper :

Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:

Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused h

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