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Friday, August 1, 2014

Sec.389 of Cr.P.C. - Granting bail at appellant stage in post conviction stage in sever offences - whether the public prosecutor has to file his objections in writing - if not filed it can be treated as No Objection and should be endorsed in the order - Apex court held that a. The appellate court, if inclined to consider the release of a convict sentenced to punishment for death or imprisonment for life or for a period of ten years or more, shall first give an opportunity to the public prosecutor to show cause in writing against such release. b. On such opportunity being given, the State is required to file its objections, if any, in writing. c. In case the public prosecutor does not file the objections in writing, the appellate court shall, in its order, specify that no objection had been filed despite the opportunity granted by the court. d. The court shall judiciously consider all the relevant factors whether specified in the objections or not, like gravity of offence, nature of the crime, age, criminal antecedents of the convict, impact on public confidence in court, etc. before passing an order for release. Admittedly, no such opportunity was granted to the State as contemplated under the first proviso of Section 389 Cr.PC in these appeals. Therefore, the impugned orders to the extent of release of the private respondents on bail are set aside. The High Court shall consider the matters afresh.= CRIMINAL APPEAL NO. 1516 OF 2014 [Arising out of S.L.P. (Criminal) No. 261 of 2013] Atul Tripathi … Appellant (s) Versus State of U.P. and another … Respondent (s) = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41781

 Sec.389 of Cr.P.C. - Granting bail at appellant stage in post conviction stage in sever offences  - whether the public prosecutor has to file his objections in writing - if not filed it can be treated as No Objection and should be endorsed in the order - 
Apex court held that
a.    The appellate court, if inclined to consider the release of a  convict sentenced to punishment for death or imprisonment for life or for  a  period of ten years or  more,  shall  first  give  an  opportunity  to  the  public prosecutor to show cause in writing against such release.
b.    On such opportunity being given, the State is  required  to  file  its objections, if any, in writing.
c.    In case  the  public  prosecutor  does  not  file  the  objections  in writing, the appellate court shall, in its order, specify that no  objection had been filed despite the opportunity granted by the court.
d.    The court shall judiciously consider all the relevant factors  whether specified in the objections or not, like gravity of offence, nature  of  the crime,  age,  criminal  antecedents  of  the  convict,  impact   on   public confidence in court, etc. before passing an order for release.
Admittedly, no such opportunity was granted to  the  State  as  contemplated under the first proviso of Section 389 Cr.PC in  these  appeals.  Therefore, the impugned orders to the extent of release of the private  respondents  on bail are set aside. The  High  Court  shall  consider  the  matters  afresh.=

whether  the   appellate   court,   while
considering the release of the convict on bail, should give  an  opportunity
to the public prosecutor for showing cause in writing against  such  release

where the conviction is on an offence punishable with death or  imprisonment
for life or for a term not less than ten years, is  the  issue  falling  for
consideration in these appeals.  =

High court bail orders
 “Heard Sri Rajeev Mishra, learned counsel for the  appellant  as  also
Sri A.N. Mulla, learned AGA for the State.  We have also  heard  Sri  Viresh
Mishra, learned Senior  Counsel  assisted  by  Sri  Rahul  Mishra,  Advocate
appearing on behalf of the informant.

      This appeal shall be heard.

      Call for lower court record of Sessions Trials No.435 of 2006, 436  of
2006 and 437 of 2006 from the court  of  Additional  Sessions  Judge,  Court
No.2, Azamgarh, which must be made available in a  maximum  period  of  four
weeks.

      As regards the prayer for bail, the submission  is  that  the  present
appellant Shyam Narain Pandey along with  the  other  convict  Laxmi  Narain
Pandey were alleged in the FIR as  also  in  the  evidence  that  they  were
sitting in a vehicle and were remonstrating from there, the shots  whereupon
were fired by three others.

      Regard being had to be submissions, let appellant Shyam Narain  Pandey
be released on bail, during pendency of appeal,  on  furnishing  a  bond  of
Rs.20,000/- with two sureties of the like amount each  to  the  satisfaction
of  the  learned  Additional  Sessions  Judge,  Court  No.2,   Azamgarh   in
connection with the Sessions Trial No.435 of 2006, 436 of 2006  and  437  of
2006.

      As regard sentence of fine imposed upon  the  above  noted  appellant,
realization thereof shall remain stayed.

Order Date: 29.8.2012

                                                     Sd/- Dharnidhar Jha, J.

                                                   Sd/- Ashok Pal Singh, J.”



Subsequently, in  order  dated  05.09.2012,  it  was  clarified  that  Laxmi
Narayan Pandey is also to be covered by the  said  order.  In  the  case  of
Umesh Kumar Pandey and Ramesh Kumar Pandey, following is the order:
          “This appeal shall be heard along with criminal appeal no.3239  of
2012 in which we also send for the record of learned trial court.

            Heard Sri Satish Trivedi, learned Senior Counsel  appearing  for
the appellants and Sri Rahul  Sharma,  learned  counsel  appearing  for  the
informant as also learned AGA for the State.

            As regards the prayer for bail, the submission is that the  case
of Laxmi Narain Pandey – appellant No.1 was same and similar to that of  co-
convict Shyam Narain Pandey.   As  regards  the  remaining  two  appellants,
namely, Umesh Kumar Pandey and Ramesh Kumar Pandey,  the submission is  that
except that they had also alighted  with  other  accused  persons  from  the
Bolero vehicle, there were no further allegation against them.

            Regard being had  to  the  submission  and  evidence,  which  is
discussed in the impugned judgment, we direct the release of the  appellants
namely, Umesh Kumar Pandey and Ramesh Kumar Pandey on bail, during  pendency
of appeal, on furnishing a bond of Rs.20,000/- each  with  two  sureties  of
the like amount each to the satisfaction of the learned Additional  Sessions
Judge, Court No.2, Azamgarh in connection with the  Sessions  Trials  No.435
of 2006, 436 of 2006 and 437 of 2006.

            As  regard  sentence  of  fine  imposed  upon  the  above  noted
appellant, realization thereof shall remain stayed till further orders.

Order Date: 05.09.2012”=

It may be seen that there is a marked difference between the  procedure  for
consideration of bail under Section 439, which is pre conviction  stage  and
Section 389 Cr.PC, which is post conviction stage.
 In case of  Section  439,
the  Code  provides  that  only  notice  to  the  public  prosecutor  unless
impractical be given before granting bail to a person who is accused  of  an
offence which is triable exclusively by the Court of Sessions or  where  the
punishment for the offence is imprisonment for life; whereas in the case  of
post conviction bail under  Section  389  Cr.PC,  where  the  conviction  in
respect  of  a  serious  offence  having  punishment  with  death  or   life
imprisonment or imprisonment for a term not  less  than  ten  years,  it  is
mandatory that the appellate  court  gives  an  opportunity  to  the  public
prosecutor for showing cause in writing against such release.

Service of a copy of the appeal and  application  for  bail  on  the  public
prosecutor by the appellant  will  not  satisfy  the  requirement  of  first
proviso to Section 389 Cr.PC

Apex court held that

To sum up the legal position,

a.    The appellate court, if inclined to consider the release of a  convict
sentenced to punishment for death or imprisonment for life or for  a  period
of ten years or  more,  shall  first  give  an  opportunity  to  the  public
prosecutor to show cause in writing against such release.

b.    On such opportunity being given, the State is  required  to  file  its
objections, if any, in writing.

c.    In case  the  public  prosecutor  does  not  file  the  objections  in
writing, the appellate court shall, in its order, specify that no  objection
had been filed despite the opportunity granted by the court.

d.    The court shall judiciously consider all the relevant factors  whether
specified in the objections or not, like gravity of offence, nature  of  the
crime,  age,  criminal  antecedents  of  the  convict,  impact   on   public
confidence in court, etc. before passing an order for release.

Admittedly, no such opportunity was granted to  the  State  as  contemplated
under the first proviso of Section 389 Cr.PC in  these  appeals.  
Therefore,
the impugned orders to the extent of release of the private  respondents  on
bail are set aside. The  High  Court  shall  consider  the  matters  afresh.
Needless to say  that  Shyam  Narayan  Pandey–respondent  no.2  in  Criminal
Appeal No. __________ of 2014 @ S.L.P. (Criminal) No.261 of 2013  and  Laxmi
Narayan Pandey- respondent no.2,  Umesh  Kumar  Pandey-respondent  no.3  and
Ramesh Kumar Pandey-respondent no.4 in Criminal Appeal Nos.  ___________  of
2014 @ S.L.P. (Criminal) Nos. 262-263 of 2013  shall  surrender  before  the
trial court within three weeks  and,  if  not,  they  shall  be  taken  into
custody.   Thereafter,  the  High  Court   shall   consider   afresh   their
applications for bail, after following  the  procedure  as  per  proviso  to
Section 389 (1) Cr.PC as explained above, expeditiously.

The appeals are allowed as above.

2014 July. Part – http://judis.nic.in/supremecourt/filename=41781


           IN THE SUPREME COURT OF INDIA

                      CRIMINAL  APPELLATE  JURISDICTION


                     CRIMINAL APPEAL NO.  1516   OF 2014
             [Arising out of S.L.P. (Criminal) No. 261 of 2013]

Atul Tripathi                                     … Appellant (s)

                                   Versus

State of U.P. and another                         … Respondent (s)

                                    WITH

                 CRIMINAL APPEAL NOS.    1517-1518   OF 2014
           [Arising out of S.L.P. (Criminal) Nos. 262-263 of 2013]


                               J U D G M E N T

KURIAN, J.:

Leave granted.

At  the  post  conviction  stage,  whether  the   appellate   court,   while
considering the release of the convict on bail, should give  an  opportunity
to the public prosecutor for showing cause in writing against  such  release
where the conviction is on an offence punishable with death or  imprisonment
for life or for a term not less than ten years, is  the  issue  falling  for
consideration in these appeals.

All the private respondents have been convicted by the Court  of  Additional
Sessions Judge, Azamgarh under Sections 147, 148,  149  read  with  Sections
302, 120B of the Indian Penal Code (45 of 1860) (hereinafter referred to  as
‘IPC’) and Section 7 of Criminal Law (Amendment) Act,  2013  and  they  have
been awarded sentence of imprisonment for life with fine.  Altogether  seven
accused have been convicted; however bail is granted only to four.

The main contention of the appellant  is  that  the  procedure  contemplated
under Section 389 proviso has not been complied with  while  releasing  them
on bail and, hence, the order passed by the High Court is liable to  be  set
aside. For the purpose of ready reference, we  shall  extract  the  impugned
order dated 29.08.2012 passed by the High Court, which reads as follows:
      “Heard Sri Rajeev Mishra, learned counsel for the  appellant  as  also
Sri A.N. Mulla, learned AGA for the State.  We have also  heard  Sri  Viresh
Mishra, learned Senior  Counsel  assisted  by  Sri  Rahul  Mishra,  Advocate
appearing on behalf of the informant.

      This appeal shall be heard.

      Call for lower court record of Sessions Trials No.435 of 2006, 436  of
2006 and 437 of 2006 from the court  of  Additional  Sessions  Judge,  Court
No.2, Azamgarh, which must be made available in a  maximum  period  of  four
weeks.

      As regards the prayer for bail, the submission  is  that  the  present
appellant Shyam Narain Pandey along with  the  other  convict  Laxmi  Narain
Pandey were alleged in the FIR as  also  in  the  evidence  that  they  were
sitting in a vehicle and were remonstrating from there, the shots  whereupon
were fired by three others.

      Regard being had to be submissions, let appellant Shyam Narain  Pandey
be released on bail, during pendency of appeal,  on  furnishing  a  bond  of
Rs.20,000/- with two sureties of the like amount each  to  the  satisfaction
of  the  learned  Additional  Sessions  Judge,  Court  No.2,   Azamgarh   in
connection with the Sessions Trial No.435 of 2006, 436 of 2006  and  437  of
2006.

      As regard sentence of fine imposed upon  the  above  noted  appellant,
realization thereof shall remain stayed.

Order Date: 29.8.2012

                                                     Sd/- Dharnidhar Jha, J.

                                                   Sd/- Ashok Pal Singh, J.”



Subsequently, in  order  dated  05.09.2012,  it  was  clarified  that  Laxmi
Narayan Pandey is also to be covered by the  said  order.  In  the  case  of
Umesh Kumar Pandey and Ramesh Kumar Pandey, following is the order:
          “This appeal shall be heard along with criminal appeal no.3239  of
2012 in which we also send for the record of learned trial court.

            Heard Sri Satish Trivedi, learned Senior Counsel  appearing  for
the appellants and Sri Rahul  Sharma,  learned  counsel  appearing  for  the
informant as also learned AGA for the State.

            As regards the prayer for bail, the submission is that the  case
of Laxmi Narain Pandey – appellant No.1 was same and similar to that of  co-
convict Shyam Narain Pandey.   As  regards  the  remaining  two  appellants,
namely, Umesh Kumar Pandey and Ramesh Kumar Pandey,  the submission is  that
except that they had also alighted  with  other  accused  persons  from  the
Bolero vehicle, there were no further allegation against them.

            Regard being had  to  the  submission  and  evidence,  which  is
discussed in the impugned judgment, we direct the release of the  appellants
namely, Umesh Kumar Pandey and Ramesh Kumar Pandey on bail, during  pendency
of appeal, on furnishing a bond of Rs.20,000/- each  with  two  sureties  of
the like amount each to the satisfaction of the learned Additional  Sessions
Judge, Court No.2, Azamgarh in connection with the  Sessions  Trials  No.435
of 2006, 436 of 2006 and 437 of 2006.

            As  regard  sentence  of  fine  imposed  upon  the  above  noted
appellant, realization thereof shall remain stayed till further orders.

Order Date: 05.09.2012”


Section 389 of the Code of Criminal Procedure,  1973  (hereinafter  referred
to as ‘Cr.PC’) reads as follows:
“S.389.   Suspension of sentence pending the appeal;  release  of  appellant
on bail.—(1) 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.

[Provided that the Appellate Court shall, before releasing  on  bail  or  on
his own bond a convicted person who is convicted of  an  offence  punishable
with death or imprisonment for life or imprisonment for a term of  not  less
than ten years, shall give opportunity to the Public Prosecutor for  showing
cause in writing against such release:

      Provided further that in cases where a convicted  person  is  released
on bail it shall be open to the Public Prosecutor  to  file  an  application
for the cancellation of the bail.]

(2) The power conferred by  this  section  on  an  Appellate  Court  may  be
exercised also by the High Court in the case of an  appeal  by  a  convicted
person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is  convicted
that he intends to present an appeal, the Court shall,—

where such person, being on bail, is sentenced to imprisonment  for  a  term
not exceeding three years, or

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.

(4) When the appellant is ultimately sentenced to imprisonment  for  a  term
or to imprisonment for life, the time during which he is so  released  shall
be excluded in computing the term for which he is so sentenced.”
                                                         (Emphasis supplied)



Since the argument is on the faulty procedure adopted by the High  Court  on
24.03.2004, this Court directed the respondents to state on affidavit:
“… as to whether the first proviso to Section  389  Cr.P.C.  for  giving  an
opportunity to the Public Prosecutor for showing cause  in  writing  against
the proposed released of the convicted person  on  bail  was  complied  with
before the impugned bail order was passed by the High Court.”



The State  has  filed  an  affidavit  on  24.04.2014.  Paragraph  5  of  the
affidavit reads as follows:
“That in this regard, it is respectfully submitted, that as per  information
received, no opportunity for showing cause in writing was  provided  to  the
State counsel though the State counsel appeared on the said date.”
                                                         (Emphasis supplied)



On behalf  of  the  second  respondent,  an  affidavit  has  been  filed  on
12.04.2014 wherein it is stated at paragraphs 2 and 3 as follows:

“2.   … In this context it may be stated that respondent  no.  2  to  4  for
challenging the judgment and order  of  conviction  recorded  by  the  trial
court gave notice of the appeal to the  State  Counsel  on  31.08.2012.  The
notice consisted of the memo of appeal and the application for bail.  There-
upon appeal alongwith bail application were filed. Giving of earlier  notice
to the State Counsel was in  compliance  with  the  requirement  of  law  as
provided in Section 389 Cr.P.C. to enable the  State  to  have  its  say  in
writing on the prayer for bail.

3.    That  the  appeal  (Criminal  Appeal  No.  3404/2012)  alongwith  bail
application were listed on 05.09.2014. The  counsel  representing  State  as
well as of the  complainant,  petitioner  here-in,  entered  appearance  and
objected to the respondent’s prayer for bail. Upon hearing  the  counsel  of
respondent no. 2 to 4, State and the complainant, Hon’ble High Court  passed
the impugned order(s). …”
                                                         (Emphasis supplied)



 Learned counsel for the private respondents contends  that  the  appellants
had given copies of the appeal  and  the  bail  application  to  the  public
prosecutor and since the public prosecutor having  been  heard  on  the  day
when the appeal came up for admission, there  is  compliance  of  the  first
proviso under Section 389 Cr.PC. The public prosecutor  having  appeared  in
the matter and opposed the application for bail, the  statutory  requirement
of opportunity to show cause has been satisfied.

The provisos to Section 389 were introduced mainly  pursuant  to  the  154th
Report of the Law Commission of India  submitted  in  1996.  The  amendments
were introduced by Act 25 of 2005  and  they  have  come  into  effect  from
23.06.2006. The Law Commission recommended for  addition  of  two  provisos.
The recommendation reads as follows:

      “47. Two provisos to sub-section (1) of section 389  of  the  Code  be
added to the effect that the  Appellate  Court  would  give  notice  to  the
prosecution  before  releasing  a  convicted  person  on  bail,  if  he  was
convicted of an offence punishable with  death,  imprisonment  for  life  or
imprisonment for a term of not less than ten years and also  to  enable  the
prosecution to move an application for cancellation of such bail granted  by
the Appellate Court.”



However, in the Bill, a further modification was  suggested  to  the  effect
that the public prosecutor be given an opportunity to show cause in  writing
against the release and, thus, the provisos have found place  under  Section
389(1) Cr.PC.

Section 389 comes under Chapter XXIX of Cr.PC dealing with appeals.  Section
439 Cr.PC coming under Chapter XXXIII Cr.PC provides for special  powers  to
High Court or Court of Sessions  regarding  bail  for  an  accused.  Section
439(1) also has a proviso. Section 439 reads as follows:


“S.439.   Special powers  of  High  Court  or  Court  of  Session  regarding
bail.—(1) A High Court or Court of Session may direct—

that any person accused of an offence and in custody, be released  on  bail,
and if the offence is of the nature specified in sub-section (3) of  section
437, may impose any condition which it considers necessary for the  purposes
mentioned in that sub-section;

that any condition imposed by a Magistrate  when  releasing  any  person  on
bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before  granting
bail to a person who is accused of an offence which is  triable  exclusively
by the Court of Session or which, though not so triable, is punishable  with
imprisonment for life, give notice  of  the  application  for  bail  to  the
Public Prosecutor unless it is, for reasons to be recorded  in  writing,  of
opinion that it is not practicable to give such notice.


(2) A High Court or Court of Session may direct  that  any  person  who  has
been released on bail under this Chapter  be  arrested  and  commit  him  to
custody.”
                                                         (Emphasis supplied)




It may be seen that there is a marked difference between the  procedure  for
consideration of bail under Section 439, which is pre conviction  stage  and
Section 389 Cr.PC, which is post conviction stage. In case of  Section  439,
the  Code  provides  that  only  notice  to  the  public  prosecutor  unless
impractical be given before granting bail to a person who is accused  of  an
offence which is triable exclusively by the Court of Sessions or  where  the
punishment for the offence is imprisonment for life; whereas in the case  of
post conviction bail under  Section  389  Cr.PC,  where  the  conviction  in
respect  of  a  serious  offence  having  punishment  with  death  or   life
imprisonment or imprisonment for a term not  less  than  ten  years,  it  is
mandatory that the appellate  court  gives  an  opportunity  to  the  public
prosecutor for showing cause in writing against such release.



Service of a copy of the appeal and  application  for  bail  on  the  public
prosecutor by the appellant  will  not  satisfy  the  requirement  of  first
proviso to Section 389 Cr.PC. The appellate court may even  without  hearing
the  public  prosecutor,  decline  to  grant  bail.  However,  in  case  the
appellate court is inclined to consider the release of the convict on  bail,
the public prosecutor shall be granted  an  opportunity  to  show  cause  in
writing as to why the appellant be not released on bail.  Such  a  stringent
provision is introduced only to ensure that the court  is  apprised  of  all
the relevant factors so that  the  court  may  consider  whether  it  is  an
appropriate case for release having regard to the manner in which the  crime
is committed, gravity of the  offence,  age,  criminal  antecedents  of  the
convict, impact on public confidence in the justice  delivery  system,  etc.
Despite such an opportunity being granted to the public prosecutor, in  case
no cause is shown in writing, the appellate  court  shall  record  that  the
State has not filed any objection in writing. This procedure is intended  to
ensure transparency, to ensure that there is no allegation of collusion  and
to ensure that the court is properly assisted by the  State  with  true  and
correct facts with regard to the relevant considerations for grant  of  bail
in respect of serious offences, at the post conviction stage.



To sum up the legal position,

a.    The appellate court, if inclined to consider the release of a  convict
sentenced to punishment for death or imprisonment for life or for  a  period
of ten years or  more,  shall  first  give  an  opportunity  to  the  public
prosecutor to show cause in writing against such release.

b.    On such opportunity being given, the State is  required  to  file  its
objections, if any, in writing.

c.    In case  the  public  prosecutor  does  not  file  the  objections  in
writing, the appellate court shall, in its order, specify that no  objection
had been filed despite the opportunity granted by the court.

d.    The court shall judiciously consider all the relevant factors  whether
specified in the objections or not, like gravity of offence, nature  of  the
crime,  age,  criminal  antecedents  of  the  convict,  impact   on   public
confidence in court, etc. before passing an order for release.

Admittedly, no such opportunity was granted to  the  State  as  contemplated
under the first proviso of Section 389 Cr.PC in  these  appeals.  Therefore,
the impugned orders to the extent of release of the private  respondents  on
bail are set aside. The  High  Court  shall  consider  the  matters  afresh.
Needless to say  that  Shyam  Narayan  Pandey–respondent  no.2  in  Criminal
Appeal No. __________ of 2014 @ S.L.P. (Criminal) No.261 of 2013  and  Laxmi
Narayan Pandey- respondent no.2,  Umesh  Kumar  Pandey-respondent  no.3  and
Ramesh Kumar Pandey-respondent no.4 in Criminal Appeal Nos.  ___________  of
2014 @ S.L.P. (Criminal) Nos. 262-263 of 2013  shall  surrender  before  the
trial court within three weeks  and,  if  not,  they  shall  be  taken  into
custody.   Thereafter,  the  High  Court   shall   consider   afresh   their
applications for bail, after following  the  procedure  as  per  proviso  to
Section 389 (1) Cr.PC as explained above, expeditiously.

The appeals are allowed as above.




                                                                …………….……….J.
                                                  (M.Y. EQBAL)


                                                               ……….………...…J.
                                                             (KURIAN JOSEPH)
New Delhi;
July 22, 2014.
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                                                                  REPORTABLE


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