RUP LAL Vs. STATE OF HIMACHAL PRADESH
LAWS(HPH)-1979-4-3
HIGH COURT OF HIMACHAL PRADESH
Decided on April 02,1979

RUP LAL Appellant
VERSUS
STATE OF HIMACHAL PRADESH Respondents

JUDGEMENT

T.U.MEHTA,C.J. - (1.) In this case the petitioners have prayed for bail under section 389 (3) of the Code of Criminal Procedure. The petitioners have been convicted by this Court for the offence under section 363, I. P. C. and sentenced to rigorous imprisonment for a period of one month and to the payment of fine of Rs. 100. The petitioners now contended that they should be enlarged on bail under section 389 (3) of the Code of Criminal Procedure as they intend to present an appeal to the Supreme Court. This application is resisted by the learned Advocate General.
(2.) Section 389 (3) of the Code of Criminal Procedure is in the following terms: - "(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 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. It is obvious that this section applies to the cases wherein the convicted person satisfies the Court that he "intends to present an appeal". The expression "intends to present an appeal" necessarily presumes that the convicted person should have a right of appeal in the matter. So far as this case is concerned, the petitioners have got no right of filing an appeal to the Supreme Court for the simple reason that the case is not covered either by section 379 of the Code of Criminal Procedure, or by Article 134 of the Constitution of India. The only remedy with the petitioners appears to be under Article 136 of the Constitution under the Supreme Court may in its discretion grant special leave to appeal from the order of conviction and sentence passed by this Court. The right of petitioners to move the Supreme Court for special leave under Article 136 cannot be construed as a right of appeal. In our opinion, order of bail under sub -section (3) of section 389 can be passed only in cases in which the convicted person has got a right to prefer an appeal, because only then it can be said that he has an intention "to present an appeal" to the Appellate Court. We, therefore, find that section 389 (3) of the Code of Criminal Procedure has no application to the facts of the present case.
(3.) The learned Advocate of the petitioners made an oral application for a certificate of fitness contemplated by clause (c) of Article 134 (1) of the Constitution. On perusal of the judgment recorded by this Court we find that it is passed purely on appreciation of facts, and therefore, we are of the opinion that this case cannot be considered as a fit one for appeal to the Supreme Court. This oral request is, therefore, rejected.;


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