The appropriate Government has the power to commute the sentence, and the High Court, in exceptional circumstances, can use its inherent powers to suspend or keep in abeyance a sentence of imprisonment for the purpose of enabling a convicted person to make an application for commutation of sentence.

I.A. Ansari, J.

1. The Petitioners herein were tried, in Special Case No. 05/96, on accusation of having committed offences under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955, for contravening the provisions of Clause (3) of the Assam Trade Articles (Licensing and Control) Order, 1982. The trial ended in their conviction and the learned Sessions Judge, Kamrup, sentenced the Petitioners to undergo, rigorous imprisonment for three years and pay fine of Rs. 5,000/- each and, in default of payment of fine, suffer rigorous imprisonment for a further period of six months, the case of the prosecution being, in brief, is that the Petitioners were found to have kept stored for sale 45 quintals of Tata iodised salt without having licence therefor. An appeal preferred by the Petitioners against their conviction and the sentence passed against them gave rise to Criminal Appeal No 164/98. By judgment and order dated 08.05.2006, passed by this Court, conviction of the accused Appellants was maintained, but the sentence was reduced to simple imprisonment for a period of one year with fine of Rs. 1,000/- and, in default of payment of fine, suffer simple imprisonment for a period of one month.

2. After the appeal stood disposed of, the Petitioners have made this application, under Sub-section (3) of Section 389 of the Code of Criminal Procedure praying for suspending or keeping in abeyance the operation of the judgment and order, dated 08.05.2006, passed by this Court in Criminal Appeal No. 164/98 aforementioned, their case being that they have applied, under Section 433(d) Code of Criminal Procedure, to the Government of Assam for commutation of the sentence of simple imprisonment passed against them, into fine.

3. I have heard Mr. SP Roy, learned Counsel, appearing on behalf of the Petitioners, and Mr. B. Sinha, learned Addl. Public Prosecutor, Assam.

4. For the purpose of appreciating the question as to whether the Petitioners' application made under Section 389(3) Code of Criminal Procedure is maintainable or not, appropriate it is to take note of Section 389 Code of Criminal Procedure, which, I may point out, reads as follows:

389. Suspension of sentence pending the appeal; release of Appellant on bail (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he ii in confinement, that he be released on bail, or on his own bond.

(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the court shall:

(i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or-

(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person he released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under Sub-section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

(4) When the Appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.

5. From a bare reading of Sub-section (3) of Section 389 Code of Criminal Procedure, it clearly transpires that under the provisions of Sub-section (3) of Section 389 Code of Criminal Procedure, the sentence can be suspended by the Court, which has convicted the accused, and, secondly, the sentence can be suspended, under Section 389(3) Code of Criminal Procedure, only when the Court, which has