The High Court does not have the power to grant bail under S.389(3) of the Code to persons acquitted by the trial court and convicted by the High Court in reversal of the acquittal, or to persons convicted and sentenced by the trial court where the conviction and sentence have been affirmed by the High Court. The Supreme Court, exercising discretionary power under Art.136 of the Constitution, is not an Appellate Court as contemplated in sub-section (1) of S.389 of the Code, and therefore the petitioners are not entitled to the benefit of sub-section (3) of S.389.

1. These are petitions filed under S.389 (alternatively under S.482) of the Code of Criminal Procedure (for short, 'the Code'), seeking release of the petitioners on bail to afford them time to "present appeal" and obtain orders from the Supreme Court. The learned single judge before whom the petitions came up for consideration noticed the conflicting views expressed by two Division Benches of this Court regarding power of this Court to grant bail viz.. Abdulla Haji v. Food 1nspector (1985 KLT. 754) and Salim v. State of Kerala (1985 KLT. 711) and referred the petitions for consideration by a Division Bench. Crl. M. P. 1145/85 came up before a Division Bench and the Bench referred the petition to a Full Bench and accordingly this Full Bench has been constituted. The other Crl. M.Ps. have also been placed before us.

2. Crl. M. P. 1115/85 arises in Crl. R. P. 80/82. The other petitions arise in Crl. Appeals. 1n Crl. R. P. 80/82, this Court declined to interfere with the conviction and sentence entered against petitioner under the provisions of the Prevention of Food Adulteration Act by the trial court and confirmed in appeal by the Sessions Court. The Crl. Appeals were filed challenging the acquittal of the appellants therein by the courts of first instance. Crl. Appeals 153/82,129/82, 292/82 and 293/82 relate to offences under the Prevention of Food Adulteration Act. Crl. Appeal 32/82 relates to offences under the Prevention of Corruption Act and Indian Penal Code. Crl. Appeal 157/82 relates to offences under Kerala Forest Act. Crl. Appeal 374/82 relates to offences under S.420. 468, 471 and 477A I.P.C. Crl. Appeal 188/82 relates to offences under S.450,394 and 316 I.P.C. Some of the offences involved are bailable while others are non-bailable. However, sentence of imprisonment imposed in these cases is for a period of less than three years. There is no dispute that the petitioners have no "right of appeal" to the Supreme Court under any provision of the Constitution or the Code. Oral application for certificate of leave under Art.134A made in Crl. Appeal 153/82 was rejected. No such application was made in any other case. However, petitioners submit that they intend to file special leave petition before the Supreme Court under Art.136 and as such they are persons who "intend to present appeal before the appellate court" as contemplated in S.389(3) of the Code. They seek order of bail under S.389(3) (or alternatively, in exercise of the inherent power of this Court under S.482) of the Code. Learned counsel for the respondents and the learned Public Prosecutor submitted that neither of these provisions would enable this Court to grant bail at this stage.

3. S.389 of the Code 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 is in confinement, that he be released on bail, or on his 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 a convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfied the Court by which he is convicted that be 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 be 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 ultima