A, an accused is convicted by a Magistrate B while the accused A was already in jail. A, after conviction, files an application for bail under Section 389. The same is rejected by the B. Thus, A could not come out of jail and take help from his friends or relatives to engage a lawyer to prefer an appeal. Can A prefer an appeal from jail?

Question: A, an accused is convicted by a Magistrate B while the accused A was already in jail. A, after conviction, files an application for bail under Section 389. The same is rejected by the B. Thus, A could not come out of jail and take help from his friends or relatives to engage a lawyer to prefer an appeal. Can A prefer an appeal from jail? State with reasons.

Find the answer only on Legal Bites. [A, an accused is convicted by a Magistrate B while the accused A was already in jail. A, after conviction, files an application for bail under Section 389. The same is rejected by the B. Thus, A could not come out of jail and take help from his friends or relatives to engage a lawyer to prefer an appeal. Can A prefer an appeal from jail?]

Answer

Usually, the right to appeal is a very constricted right and it has to be implemented within the legislative framework as provided under the Code of Criminal Procedure, 1973. As per the situational problem Yes here, A can prefer an appeal from jail by virtue of Section 374 of the CrPC which lays down the provision for Appeals from convictions. Section 374(3) provides that:

“Save as otherwise provided in Sub-Section (2), any person,-

1. convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class or of the second class, or

2. sentenced under section 325, or

3. in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session.”

Moreover, Section 389 in the Code of Criminal Procedure, 1973 clearly provides the provision for Suspension of sentence pending the appeal; release of the appellant on bail. The sub-section (1) states that:

“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 own bond.”

The Supreme Court has observed in K.C. Sareen v. CBI, (2001) 6 SCC 584 that though the power to suspend an order of conviction, apart from the order of sentence is not alien to section 389(1) of the Code, its exercise should be limited to very exceptional cases. Merely because the convicted person files an appeal to challenge his conviction, the Court should not suspend the operation of the order of conviction. The Court has a duty to look at all the aspects including the ramification of keeping such convictions in abeyance.

In State of Rajasthan v. Salman Salim Khan, AIR 2015 SC 2443, the Supreme Court held that the power of suspension of conviction shall be used only in exceptional circumstances where failure to stay conviction would lead to injustice and irreversible consequences and thus of some foreign country is not granting permission to visit said country on the ground that accused has been convicted of an offence and has been sentenced under Indian Law, said order cannot be a ground to stay order of conviction.

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