A convict with a sentence under three years is entitled to seek bail pending appeal under specific provisions of the Criminal Procedure Code.

1The applicant original accused No. 1 has prayed for bail pending hearing and final disposal of the Criminal Appeal filed against the order of conviction and sentence passed by the learned Special Judge, Fast Track Court, Kheda at Nadiad in Special (ACB) Case No. 15 of 1999. The applicant is original accused No. 1 and accused No. 2 has been acquitted by the learned trial Judge. However, the learned trial Judge has found that the applicant accused No. 1 is guilty of the charge of offence punishable under S.12 and under S.13(1)(d) read with S.13(2) of the Prevention of Corruption Act .

2. The accused was on bail pending trial and learned Judge after recording conviction has convicted the present applicant for the offence punishable under S.13(1)(d) and 13(2) of the Prevention of Corruption Act and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2,000/- (Rupees Two Thousand Only), in default of payment of fine to undergo six months simple imprisonment. No separate sentence has been awarded for the offence punishable under S.7 of the .
Rule. Mr. Desai, learned A.P.P. for the respondent State waives service of notice of rule.

3. I have heard Mr. Pathan, learned Counsel appearing for the applicant appellant and Mr. Desai, learned A.P.P. for the respondent State. It is clear from the documents that on the date of order of conviction and sentence, the applicant preferred the bail application under the scheme of sub-s.(3) of S.389 of the Code of Criminal Procedure and prayed for bail, i.e. the day on which he has been found guilty and asked to undergo imprisonment for two years. However, the learned trial Judge rejected the said application condemning the act of the applicant accused mainly relying on one decision of the Hon'ble Apex Court, reported in 2004 CriLJ 919 in case of State of Maharashtra v. Gajanand .

4. A plain reading of the bail application preferred by the applicant before the Trial Court does not speak anything about the prayer for suspension of conviction. However, for the reasons best known to the learned trial Judge placing reliance on the decision of the Apex Court referred herein above, rejected the bail plea. In reality the above referred decision cited by the learned trial Judge speaks about stay of conviction ordered by the High Court. The Apex Court has observed that keeping the conviction in abeyance would facilitate the accused public servant to continue to hold civic post. The learned trial Judge was supposed to consider whether the applicant should be enlarged on bail by placing substantive sentence under suspension so that he can prefer the appeal and pray for bail before the appellate Court.

5. It is not a privilege or right of accused to get bail in non bailable / cognizable offences. However, it is the privilege of the accused to pray for bail pending the trial under the scheme of S.437 and / or 439 of the Code of Criminal Procedure . In a given case the applicant accused can get anticipatory bail under the scheme of S.438 of the Code of Criminal Procedure . When the accused was held entitled to get the bail pending the trial under the scheme of S.437 of the Code and when the quantum of punishment is undisputedly less than three years then, there is very little scope to reject the bail plea on conviction. The learned Trial Court can ascertain whether the amount of fine has been paid by the applicant accused and can ultimately refuse to grant bail to the accused but the learned trial Judge has not taken care even to state that the amount of fine has been paid or not while exercising discretionary jurisdiction vested with the Trial Court under sub-s.(3) of the