Power of the Court to suspend the sentence or order appealed against
Section 389 of the Code specifically refers to a convicted person and the power of the Court to suspend the sentence or order appealed against and also direct release of the convict on bail, if he is in confinement. Section 389 of the Code has not been amended so as to include the limited right given by Section 436-A to a person under investigation or inquiry or facing trial. The other indicator is that Section 436-A has been inserted in Chapter- XXXIII containing provisions as to bail and bonds.
The provisions contained in this Chapter, deal with bail and bonds and the principles applicable to them in relation to a person accused of or suspected of commission of an offence. These provisions do not by themselves enable a convict to secure bail, and he has to take recourse to Section 389 of the Code, which makes possibility of getting bail for a convict a reality, subject to appellate court suspending his sentence. In other words the provision does not make the event of grant of bail as independent of the satisfaction of the Court as regards the need for suspending the sentence or order appealed against, till final disposal of the appeal and it is only upon recording Judgment necessary satisfaction that a convict would succeed in getting bail. So, in a pending appeal there is no right of bail for a convict which is alive and available for him to be taken advantage of at any point of time desired by him. The right remains eclipsed by the requirement of suspension of sentence and becomes clearly visible when the eclipse is removed. Even after the right becomes available, it’s realization depends on the discretion of the Court.
But that is a different matter. The point here is of the exercise of right being dependent on suspension of sentence by the Court. That would show that the right of bail in Section 389 of the Code is consequential to suspension of the sentence and unless the first requirement is fulfilled, the consequence of bail of convict would not happen. If the legislature had intended that the benefit under Section 436-A of the Code should be given even to a convict before an Appellate Court, it would have amended suitably Section 389 of the Code. The legislature did not do it. It would show that the legislative policy was limited to extending benefit only to an undertrial prisoner and not to convicts whose appeal is pending before the Appellate Court under Section 374 of the Code.
Section 436-A of the Code were not applicable to appeals and they would apply only during trials. Supreme Court was of the view that while deprivation of personal liberty guaranteed under Article 21 for some period may not be unavoidable, deprivation of the same pending trial/appeal could not be unduly long.
Section 436-A of the Code can be used by an appellate court while considering application of a convict filed under Section 389 of the Code seeking suspension of sentence and bail, as constituting one of the relevant criteria for exercise of its discretion and of course not as a matter of any right or course.