The appellate court has exclusive jurisdiction to decide on suspension of sentence once an appeal is filed, as per the provisions of Cr.P.C. and BNSS.

ORAL ORDER

1. Mr. Chirag H.Parekh, learned advocate for the applicants states that a very strange order has been passed by the learned Additional Sessions Judge, Dhari Amreli on 30.08.2024. Mr. Parekh stated that without any order for suspension of sentence, the accused were ordered to be presented before the trial Court for execution of sentence. Advocate Mr. Parekh submitted that immediately on their presence before the learned trial Court, they were sent to jail for serving the sentence.

2. Advocate Mr. Parekh submitted that by Exh.62, the learned Magistrate has suspended the sentence on 09.07.2024 for 30 days, and, thus the order of suspension of sentence would remain in force till 09.08.2024, and prior to that Criminal Appeal No.9 of 2024 was filed on 18.07.2024 along with suspension of sentence application.

3. Advocate Mr. Parekh further submitted that learned appellate Court itself has noted that when the matter was fixed for hearing on 03.08.2024 of Exh.5 application, the Court was on training, and on the date of order i.e. on 30.08.2024, the appellants advocate had preferred application before the appellate Court to take the matter on Board along with appellants-accused remained present before the appellate Court.

4. Advocate Mr. Parekh stated that the learned appellate Court was required to follow the provisions of Code of Criminal Procedure, 1973 (hereinafter referred to ‘Cr.P.C.’ for short), as laid down under Section 389 Cr.P.C., but on the date of order the provisions of Bhartiya Nagrik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’ for short) was to be considered for the procedural aspect, and the corresponding provision of section 430(3) of BNSS lays down that when the convicted person satisfies the trial Court by which he has been convicted that he intends to present an appeal, and in such a case, when the sentence is for a term not exceeding three years for the offence for which such person has been convicted is a bailable and he is on bail, then would order the convicted person to be released on bail, unless there are special reasons for refusing bail, for such a period as would afford him sufficient time to present an appeal and obtain the order 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.

5. Advocate Mr. Parekh submitted that as per section 389(3) of Cr.P.C., the trial Court had already granted suspension of 30 days, and within that period Criminal Appeal No.9 of 2024 was filed. Mr. Parekh submitted that as soon as an appeal is filed, the trial Court would loose its jurisdiction and it is the appellate Court who has to decide on the suspension of sentence.

6. Ms. Jyoti Bhatt, learned APP, submitted that the learned Judge has noted that after 09.08.2024, the appellants have failed to secure any order of stay against execution of sentence from the Magistrate of the trial Court, and therefore, had remained absconded for 21 days and not surrendered, and, thus stated that the order so passed is just and proper.

7. On 30.08.2024, the procedural Code would be BNSS, 2023. Section 430 of BNSS is corresponding to section 389 of Cr.P.C. It is quite saddening to note that when the matter was for hearing on 03.08.2024, the Court was on leave because of the training, the in-charge Judge has not considered the hearing of the matter, which had led to condition that the matter was not listed on the Board of the appellate Court. The appellants-accused were constrained to move an application before the appellate Court to get the matter listed on Board.

7.1 The learned appellate Court Judge under erroneous belief has rejected the application directing the appellants to prese