Cheque bounce - Stop payment - civil disputes - No offence in the absence of proof of hand loan - Hand loan - No calculations for arriving for total sum for which the cheque was issued - Non- enquiry about the sufficient funds in the account of accused - complainant is a worker - accused is a employee - suppression of actual deal - Trial court dismissed the case - High court reversed it - Apex court held that when the actual saving of complainant for annum is of Rs.10,000/- only and when is a worker under the complainant , it not believable that he gave hand loan about 4 years back to the employer by borrowing amount from Bank - in absence of rebuttal in cross examination of DW 2 mediator - clearly shows the cheque was stopped due to civil disputes = CRIMINAL APPEAL NO. 1522 OF 2014 ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 278 OF 2013 RAMDAS S/O KHELUNAIK … APPELLANT VERSUS KRISHNANAND S/O VISHNU NAIK … RESPONDENT = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41784

Cheque bounce - Stop payment - civil disputes - No offence in the absence of proof of hand loan -  Hand loan - No calculations for arriving for total sum for which the cheque was issued - Non- enquiry about the sufficient funds in the account of accused - complainant is a worker - accused is a employee - suppression of actual deal - Trial court dismissed the case - High court reversed it - Apex court held that when the actual saving of complainant for annum is of Rs.10,000/- only and when is a worker under the complainant , it not believable that he gave hand loan about 4 years back to the employer by borrowing amount from Bank - in absence of rebuttal in cross examination  of DW 2  mediator - clearly shows the cheque was stopped due to civil disputes =

whereby the High

Court set aside the Judgment and Order of the J.M.F.C. (II-Court),

Karwar acquitting the appellant herein of the offence punishable

under Section 138 of the Negotiable Instruments Act, 1881 (for short

‘the Act’). =

The case of the complainant

was that he had given a hand loan of Rs.1,50,000/- to the accused-

appellant and three and half years thereafter he had again given

Rs.25,000/- as hand loan, thus in all, the accused-appellant owed him

Rs. 1,75,000/- and to discharge this liability the cheque for

Rs.5,00,000/- was drawn, but the same stood dishonoured at the

instructions of the accused-appellant. =

Cheque for Rs.5,00,000/- issued by the appellant in favour of the

respondent was dishonoured by the Bank when it was presented for

realization by the respondent, as the appellant had instructed the

Bank to stop the payment. 

After receiving such information from the

Bank, the respondent served a legal notice calling upon the appellant

to pay the Cheque amount. 

Upon failure of the respondent to obey

the legal notice warranting him to pay the Cheque amount of

Rs.5,00,000/-, the respondent filed Complaint Case against the

appellant for the offence punishable under Section 138 of the Act=

Whereas, the case of the

appellant before the Trial Court was that he had entered into an

agreement with the complainant to purchase 3 acres of land

belonging to the complainant for a total consideration of

Rs.10,00,000/- and for that purpose, an advance of Rs.30,000/- in

cash was paid and the Cheque in question for Rs.5,00,000/- was

handed over to the complainant in presence of B.S. Pai (DW 2).

When the complainant failed to execute the sale agreement and not

even willing to return the advance amount of Rs.30,000/- and the

Cheque of Rs.5,00,000/-, he had to instruct the Bank to stop payment

against the said Cheque. =
Apex court held that

We find from the record that 
admittedly, the accused appellant

deals with sale and purchase of landed properties and 
the

respondent-complainant works as a Lorry Driver under him with a

salary of Rs.2,500/- p.m. and Rs.20/- per day towards miscellaneous

expenses (bhatta).
Admittedly, the Cheque in question was for

Rs.5,00,000/- and all the way the stand of the complainant was that

he had given a hand loan of Rs.1,75,000/- to the accused-appellant.

We find no material on record in support of the claim of the

complainant giving hand loan to the accused-appellant. 
There was

also no calculation of account or stipulation of any interest on the

alleged loan amount to show as to how the amount of Rs.5,00,000/-

was figured, in return of a hand loan of Rs.1,75,000/-, if at all taken by

the appellant from the complainant.  
It is also not on record whether

there was sufficient balance amount or not in the bank account of the

accused when the Cheque was dishonoured by the Bank.
The

complainant himself stated in the cross-examination that after the

Cheque was returned without payment, he has not made any enquiry

with the Bank as to whether sufficient funds were available or not in

the account of the accused.  
In the absence of any authenticated and

supporting evidence, we can not believe that the complainant-respondent
who is employed under the appellant -accused, has raised an amount of Rs.
1,75,000/- that too by obtaining loan of Rs.1,50,000/-  from Bank, only to give
a hand loan to his employer.
As the complaint himself admitted that his net savings
in a year comes to about  Rs.10,000/- ,it is not trustworthy that he was in a position to
extend hand loan of such big amount to the appellant
10. Whereas, the evidence of Mr. B.S. Pai (D.W. 2)
fully
corroborates the version of the appellant. 
He deposed that the talks
of sale/purchase of 3 acres of land were held between the parties in
his presence.
The appellant agreed to purchase 3 acres of land
belonging to the complainant and the appellant had paid an amount
of Rs.30,000/- as advance and handed over a Cheque for
Rs.5,00,000/- . 
It is also noteworthy that the complainant has not
rebutted the evidence of D.W. 2 in the cross examination. 
Further, the
firm and unshaken evidence of Mr. D.R. Bhat,
a member of the
Karwar Bar Association (D.W. 6) also corroborates the sale purchase
deal between the parties.
 It is evident from the record that DW 6 has
clearly and categorically deposed that the appellant stated to him
about four years back that he had entered into an agreement with the
complainant in presence of B.S. Pai (DW 2) to purchase 3 acres of
land belonging to the complainant and also paid Rs.30,000/- in cash
as advance money and issued a Cheque for Rs.5,00,000/-.
Looking
at the corroborative evidence adduced by the defence witnesses and
more particularly, in the absence of any material evidence in support
of the claim of the respondent-complainant, we cannot uphold the
impugned judgment.
11. For all the aforesaid reasons, the appeal deserves to be
allowed and is accordingly allowed. 

2014 July. Part – http://judis.nic.in/supremecourt/filename=41784

RANJANA PRAKASH DESAI, N.V. RAMANA
Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1522 OF 2014
ARISING OUT OF
SPECIAL LEAVE PETITION (CRL.) NO. 278 OF 2013
RAMDAS S/O KHELUNAIK … APPELLANT
VERSUS
KRISHNANAND S/O VISHNU NAIK … RESPONDENT
JUDGMENT
N.V. RAMANA, J.
Leave granted.
2. This appeal by special leave arises out of Judgment dated 22nd
August, 2012 passed by the High Court of Karnataka, Circuit Bench
at Dharwad, in Criminal Appeal No. 832 of 2007 whereby the High
Court set aside the Judgment and Order of the J.M.F.C. (II-Court),
Karwar acquitting the appellant herein of the offence punishable
under Section 138 of the Negotiable Instruments Act, 1881 (for short
‘the Act’).
3. The facts leading to this appeal, in a nutshell, are that a
Cheque for Rs.5,00,000/- issued by the appellant in favour of the
respondent was dishonoured by the Bank when it was presented for
realization by the respondent, as the appellant had instructed the
Bank to stop the payment. After receiving such information from the
Bank, the respondent served a legal notice calling upon the appellant
to pay the Cheque amount. Upon failure of the respondent to obey
the legal notice warranting him to pay the Cheque amount of
Rs.5,00,000/-, the respondent filed Complaint Case against the
appellant for the offence punishable under Section 138 of the Act.
The Judicial Magistrate (First Class), Karwar took cognizance of the
offence, recorded statement of the complainant under oath,
registered the case and summoned the accused-appellant. The
appellant pleaded not guilty and claimed trial.
4. Before the Trial Court, the complainant-respondent solely led
his own evidence as P.W. 1., whereas the appellant-accused in his
defence led evidence of six witnesses. The case of the complainant
was that he had given a hand loan of Rs.1,50,000/- to the accused-

appellant and three and half years thereafter he had again given

Rs.25,000/- as hand loan, thus in all, the accused-appellant owed him

Rs. 1,75,000/- and to discharge this liability the cheque for

Rs.5,00,000/- was drawn, but the same stood dishonoured at the

instructions of the accused-appellant. Whereas, the case of the

appellant before the Trial Court was that he had entered into an

agreement with the complainant to purchase 3 acres of land

belonging to the complainant for a total consideration of

Rs.10,00,000/- and for that purpose, an advance of Rs.30,000/- in

cash was paid and the Cheque in question for Rs.5,00,000/- was

handed over to the complainant in presence of B.S. Pai (DW 2).

When the complainant failed to execute the sale agreement and not

even willing to return the advance amount of Rs.30,000/- and the

Cheque of Rs.5,00,000/-, he had to instruct the Bank to stop payment

against the said Cheque.

5. The Trial Court, taking note of financial condition of the

complainant who was working under the accused, observed that the

complainant has failed to lead any evidence to corroborate his

version that the Cheque issued by the appellant was to discharge the

liability towards the complainant. Keeping in mind the corroborative

and unshaken defence version, the Trial Court found fault with the

complainant-respondent and observed that instead of executing an

agreement to sell and instead of repaying the advance money and

returning the Cheque, a false complaint was filed by the complainant/respondent

against the accused/appellant. The trial court, therefore, dismissed the complaint

and acquitted the accused/appellant of the offence. 

6.Against the judgment of the Trial Court dismissing the

Complaint and acquitting the accused, the complainant preferred

Criminal Appeal before the High Court. The High Court while allowing

the appeal, set aside the judgment of the Trial Court and sentenced

the appellant-accused to pay a fine of Rs.8,50,000/- within a period of

eight weeks, failing which, to suffer simple imprisonment for a period

of six months. Aggrieved by the reversal of his acquittal, the

appellant-accused filed the present appeal.

7. Learned counsel for the appellant-accused contended that the

Cheque in question was in fact issued as part payment of the agreed

sale/purchase of 3 acres of land belonging to the complainant for a

total consideration of Rs.10,00,000/-, out of which an initial amount of

Rs.30,000/- was also paid by the appellant in cash and the

complainant was supposed to execute a written sale agreement. As

the complainant had not come forward for giving finality to the

commitment by execution of written Sale Agreement and even denied

to return the advance payment of Rs.30,000/- and the Cheque in

question, the appellant had no option but to request his banker to not

honour the Cheque. The complainant mischievously cooked up the

story of giving hand loan to the appellant which the Trial Court had

rightly disbelieved and dismissed the complaint. Although the

complainant-respondent miserably failed to establish the fabricated

story of giving hand loan to the appellant with any reliable evidence,

the High Court took an erroneous view and wrongly set aside the

judgment of the Trial Court and sentenced the appellant under

Section 138 of the Act. Learned counsel, therefore, submitted that the

impugned order is not justified and the same deserves to be set

aside.
8. On the other hand ,  learned counsel for the respondent-complainant
submitted that there is no error in the impugned judgment and
the High Court has rightly allowed the appeal of the complainant.
The complainant had raised a sum of Rs.1,50,000/- by
obtaining loan from Akshya Bank to extend hand loan to the accused-
appellant and 3½ years thereafter, a further sum of Rs.25,000/- was

also given and the Cheque for Rs.5,00,000/- was meant for the total
repayment of the advanced amount of Rs.1,75,000/-. He further
submitted that there was no transaction of sale/purchase of land
between the parties and the accused wanted to avoid repayment of
the hand loan, in the process of which he instructed the banker not to
pass the Cheque. The High Court has, therefore, correctly dealt with
the matter and rightly sentenced the accused who, knowing fully the
eventuality of the offence, committed the same deliberately. Hence
the learned counsel prayed that the appeal lacks merit and the same
deserves to be dismissed

9. We have heard rival contentions of the learned counsel at

length. We find from the record that admittedly, the accused appellant

deals with sale and purchase of landed properties and the

respondent-complainant works as a Lorry Driver under him with a

salary of Rs.2,500/- p.m. and Rs.20/- per day towards miscellaneous

expenses (bhatta). Admittedly, the Cheque in question was for

Rs.5,00,000/- and all the way the stand of the complainant was that

he had given a hand loan of Rs.1,75,000/- to the accused-appellant.

We find no material on record in support of the claim of the

complainant giving hand loan to the accused-appellant. There was

also no calculation of account or stipulation of any interest on the

alleged loan amount to show as to how the amount of Rs.5,00,000/-

was figured, in return of a hand loan of Rs.1,75,000/-, if at all taken by

the appellant from the complainant.  It is also not on record whether

there was sufficient balance amount or not in the bank account of the

accused when the Cheque was dishonoured by the Bank.The

complainant himself stated in the cross-examination that after the

Cheque was returned without payment, he has not made any enquiry

with the Bank as to whether sufficient funds were available or not in

the account of the accused.  In the absence of any authenticated and

supporting evidence, we can not believe that the complainant-respondent
who is employed under the appellant -accused, has raised an amount of Rs.
1,75,000/- that too by obtaining loan of Rs.1,50,000/-  from Bank, only to give 
a hand loan to his employer. As the complaint himself admitted that his net savings
in a year comes to about  Rs.10,000/- ,it is not trustworthy that he was in a position to
extend hand loan of such big amount to the appellant
10. Whereas, the evidence of Mr. B.S. Pai (D.W. 2) fully
corroborates the version of the appellant. He deposed that the talks
of sale/purchase of 3 acres of land were held between the parties in
his presence. The appellant agreed to purchase 3 acres of land
belonging to the complainant and the appellant had paid an amount
of Rs.30,000/- as advance and handed over a Cheque for
Rs.5,00,000/- . It is also noteworthy that the complainant has not
rebutted the evidence of D.W. 2 in the cross examination. Further, the
firm and unshaken evidence of Mr. D.R. Bhat, a member of the
Karwar Bar Association (D.W. 6) also corroborates the sale purchase
deal between the parties. It is evident from the record that DW 6 has
clearly and categorically deposed that the appellant stated to him
about four years back that he had entered into an agreement with the
complainant in presence of B.S. Pai (DW 2) to purchase 3 acres of
land belonging to the complainant and also paid Rs.30,000/- in cash
as advance money and issued a Cheque for Rs.5,00,000/-. Looking
at the corroborative evidence adduced by the defence witnesses and
more particularly, in the absence of any material evidence in support
of the claim of the respondent-complainant, we cannot uphold the
impugned judgment. 
11. For all the aforesaid reasons, the appeal deserves to be
allowed and is accordingly allowed. The impugned judgment of the
8Page 9
High Court is set aside and the judgment of the Trial Court is
restored. The appellant is at liberty to withdraw the amount of
Rs.1,75,000/- with accrued interest if any, deposited by him before
the Trial Court in accordance with this Court’s order dated 30th
November, 2012.
….……………………………….J.
(RANJANA PRAKASH DESAI)
.....………………………………J.
 (N.V. RAMANA)
NEW DELHI
JULY 23, 2014

Sec. 420 - compoundable - Apex court held that Offence under Section 420 of the IPC is compoundable with the permission of the court by the person who is cheated. Since the parties are related to each other and they have decided to accord a quietus to their disputes and live peacefully, we permit them to compound the offence. Hence, the offence under Section 420 of the IPC for which the appellant was convicted is compounded because it is compoundable with the permission of the court. The appellant is acquitted of the said charge.=CRIMINAL APPEAL NO.1165 OF 2014 Deva Ram … Appellant Vs. The State of Rajasthan & Anr. … Respondents = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41783

 Sec. 420 - compoundable -Apex court held that Offence under Section 420 of the IPC  is compoundable with the permission of the court by the person who is  cheated.  Since the parties are related to  each  other  and  they  have  decided  to accord a quietus to their disputes and live peacefully, we  permit  them  to compound the offence.  Hence, the offence under Section 420 of the  IPC  for which the appellant was convicted is compounded because it  is  compoundable with the permission of the court.  The appellant is acquitted  of  the  said charge.=

 An application has been filed in this Court by the  appellant  praying
that in view of the settlement, offence may be permitted to  be  compounded.
It is stated that the original  complainant  and  the  appellant  are  close
relatives.
It  is  stated  that  the  original  complainant   expired   on
30/05/1994.  
Thereafter,  the  son  of  the  complainant  is  not  keen  on
prosecuting the proceedings.
The appellant is a senior citizen who  suffers from various ailments.
 It is further stated that  due  to  intervention  of
the elders of the village, dispute between the  parties  is  resolved.  
The
appellant has agreed to pay settlement amount to Arjun Ram.
It  is  further
stated in the application that the  appellant  has  paid  the  fine  amount.
Affidavit has also been filed by Jagdish Prasad, Power  of  Attorney  holder
of the appellant   confirming that the matter is  settled.
 Arjun  Ram  has
also  filed  affidavit  confirming  that  the  matter  is  settled  and  the
appellant has paid the agreed  amount  to  him.  
 Arjun  Ram,  respondent  2
herein  has  filed  another  affidavit  dated  17/7/2014  stating  that  his
brothers viz. (1) Hanuman Ram, (2) Hajari  Ram,  (3)  Narayan  Ram  and  (4)
Ghirdhari Ram have issued Power of Attorney dated 12/06/2014 in  his  favour
thereby nominating, constituting and appointing  him  for  taking  steps  in
connection with the present appeal.
 Paragraph  2  of  the  said  affidavit
reads thus:

“2.   It is submitted that my brothers namely: (1) Hanuman Ram,  (2)  Hajari
Ram, (3) Narayan Ram, (4) Ghirdhari Ram, all sons and legal  heirs  of  Late
Shri Hardeva Ram (the original complainant) have issued a power of  attorney
dated 12.06.2014, thereby nominating, constituting and appointing  me  i.e.,
Arjun Ram s/o. Late Hardeva Ram for doing or executing all  or  any  of  the
acts or things in connection with  the  Criminal  Appeal  No.1165  of  2014,
which is annexed herewith and marked as ANNEXURE-A1 at pages 90 to 91”.



We must note that copy of Deed of Compromise dated 25/2/2014 is  also  filed
in the court.  Learned counsel for  the  parties  have  confirmed  that  the
matter is settled.

5.    We are informed that out of two years imprisonment the  appellant  has
undergone six months imprisonment.  Offence under Section 420 of the IPC  is
compoundable with the permission of the court by the person who is  cheated.
 Since the parties are related to  each  other  and  they  have  decided  to
accord a quietus to their disputes and live peacefully, we  permit  them  to
compound the offence.  Hence, the offence under Section 420 of the  IPC  for
which the appellant was convicted is compounded because it  is  compoundable
with the permission of the court.  The appellant is acquitted  of  the  said
charge.

6.    The appellant is on bail.  His bail bond stands discharged. Appeal  is
disposed of.

2014 July. Part – http://judis.nic.in/supremecourt/filename=41783

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1165 OF 2014


 Deva Ram                               …    Appellant

Vs.

 The State of Rajasthan & Anr.               …     Respondents



                               J U D G M E N T


(SMT.) RANJANA PRAKASH DESAI, J.

1.    The appellant was tried  by  the  Judicial  Magistrate,  First  Class,
Didwana for offence punishable under Section 420  of  the  IPC  in  Criminal
Case No. 41/89.

2.     Deceased  Hardeva  Ram  filed  complaint  against  the  appellant  on
9/8/1988 stating that since the appellant used to send  persons  abroad  for
employment, he also arranged passport for his son Arjun Ram.  The  appellant
told him that if he wants to send his son abroad, he will have  to  pay  him
Rs.15,000/- and hand over his passport to him.   The  complainant  gave  him
Rs.8,300/- but the appellant did not send his son abroad.   The  complainant
asked for his money but the appellant refused to  return  the  same.   After
investigation charge sheet was filed under Sections 406 and 420 of the  IPC.
 The learned Magistrate framed charge under Section 420  of  the  IPC.   The
appellant denied the charge.  Upon conclusion  of  the  trial,  the  learned
Magistrate by his order  dated  13/07/1992  convicted  the  appellant  under
Section 420 of the IPC and sentenced him to suffer simple imprisonment   for
2 years and to pay a fine of  Rs.1,000/-,  in  default,  to  undergo  simple
imprisonment for two months.  Appeal filed by the  appellant  was  dismissed
by the  Sessions  Court  on  12/9/1996.   The  appellant  filed  a  criminal
revision application in the Rajasthan High  Court  which  was  dismissed  on
23/1/2014.  Being aggrieved by the said order the present appeal is filed.

3.    It appears that original complainant expired  on  30/05/1994.   During
the pendency of the present appeal, Arjun Ram,  the  heir  of  the  original
complainant and the appellant have entered into  a  compromise.  Application
for impleadment was filed by Arjun Ram in which it is confirmed that he  and
the appellant  have  compromised  the  matter.   The  said  application  was
granted by this Court.  This Court was informed that the appellant  and  the
heir of the complainant i.e. the newly  added  respondent  had  settled  all
their disputes and an amount of Rs.8,000/- has  already  been  paid  to  the
newly added respondent.  A  statement  was  made  by  the  counsel  for  the
appellant that further amount of Rs.12,000/-  will  be  paid  to  the  newly
added respondent within a period of two weeks.  This statement was  recorded
and the matter was adjourned.

4.    An application has been filed in this Court by the  appellant  praying
that in view of the settlement, offence may be permitted to  be  compounded.
It is stated that the original  complainant  and  the  appellant  are  close
relatives.   It  is  stated  that  the  original  complainant   expired   on
30/05/1994.   Thereafter,  the  son  of  the  complainant  is  not  keen  on
prosecuting the proceedings.  The appellant is a senior citizen who  suffers
from various ailments.  It is further stated that  due  to  intervention  of
the elders of the village, dispute between the  parties  is  resolved.   The
appellant has agreed to pay settlement amount to Arjun Ram.  It  is  further
stated in the application that the  appellant  has  paid  the  fine  amount.
Affidavit has also been filed by Jagdish Prasad, Power  of  Attorney  holder
of the appellant   confirming that the matter is  settled.   Arjun  Ram  has
also  filed  affidavit  confirming  that  the  matter  is  settled  and  the
appellant has paid the agreed  amount  to  him.   Arjun  Ram,  respondent  2
herein  has  filed  another  affidavit  dated  17/7/2014  stating  that  his
brothers viz. (1) Hanuman Ram, (2) Hajari  Ram,  (3)  Narayan  Ram  and  (4)
Ghirdhari Ram have issued Power of Attorney dated 12/06/2014 in  his  favour
thereby nominating, constituting and appointing  him  for  taking  steps  in
connection with the present appeal.   Paragraph  2  of  the  said  affidavit
reads thus:

“2.   It is submitted that my brothers namely: (1) Hanuman Ram,  (2)  Hajari
Ram, (3) Narayan Ram, (4) Ghirdhari Ram, all sons and legal  heirs  of  Late
Shri Hardeva Ram (the original complainant) have issued a power of  attorney
dated 12.06.2014, thereby nominating, constituting and appointing  me  i.e.,
Arjun Ram s/o. Late Hardeva Ram for doing or executing all  or  any  of  the
acts or things in connection with  the  Criminal  Appeal  No.1165  of  2014,
which is annexed herewith and marked as ANNEXURE-A1 at pages 90 to 91”.



We must note that copy of Deed of Compromise dated 25/2/2014 is  also  filed
in the court.  Learned counsel for  the  parties  have  confirmed  that  the
matter is settled.

5.    We are informed that out of two years imprisonment the  appellant  has
undergone six months imprisonment.  Offence under Section 420 of the IPC  is
compoundable with the permission of the court by the person who is  cheated.
 Since the parties are related to  each  other  and  they  have  decided  to
accord a quietus to their disputes and live peacefully, we  permit  them  to
compound the offence.  Hence, the offence under Section 420 of the  IPC  for
which the appellant was convicted is compounded because it  is  compoundable
with the permission of the court.  The appellant is acquitted  of  the  said
charge.

6.    The appellant is on bail.  His bail bond stands discharged. Appeal  is
disposed of.

                                                              ………………………………J.
                                                     (Ranjana Prakash Desai)


                                                              ………………………………J.
                                                               (N.V. Ramana)
New Delhi;
July 23, 2014.




-----------------------
6

Sec.389 of Cr.P.C. - Stay of Sentence convicted under Sections 147, 148, 302/144 IPC read with Section - Grounds for granting - Apex court held that He has been working as a Principal and if the conviction is not stayed, he will lose his job, will be denied of his livelihood and he would not be in a position to participate in subsequent selection procedures conducted by the U.P. Secondary Education Services Selection Board, Allahabad.are not the grounds for granting stay as he was convicted under sec.302 I.P.C. and sentenced to undergo for life imprisonment = CRIMINAL APPEAL NO. 1515 OF 2014 [Arising out of S.L.P. (Criminal) No.5654 of 2014 CRLMP No. 8191 of 2014] Shyam Narain Pandey … Appellant (s) Versus State of U.P. … Respondent (s) = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41782

Sec.389 of Cr.P.C. - Stay of Sentence convicted under Sections 147, 148, 302/144 IPC  read  with  Section - Grounds for gratning - Apex court held that He has been working as a Principal and if the  conviction  is  not stayed, he will lose his job, will be denied of his livelihood and he  would not be in a position  to  participate  in  subsequent  selection  procedures conducted  by  the  U.P.  Secondary  Education  Services  Selection   Board, Allahabad are not the grounds for granting stay as he was convicted under sec.302 I.P.C. and sentenced to undergo for life imprisonment = 

It
is the contention of the learned  counsel  for  the  appellant  that  he  is
innocent.
He has been working as a Principal and if the  conviction  is  not
stayed, he will lose his job, will be denied of his livelihood and he  would
not be in a position  to  participate  in  subsequent  selection  procedures
conducted  by  the  U.P.  Secondary  Education  Services  Selection   Board,
Allahabad.

 We are afraid none of these contentions can be appreciated.  The  appellant
has been convicted under Sections 147, 148, 302/144 IPC  read  with  Section
120B IPC and is sentenced to undergo life imprisonment.

‘Convict’ means declared to be guilty of criminal offence by the verdict  of
court of law. That declaration is made after the court finds him  guilty  of
the charges which have been proved against him.  Thus,  in  effect,  if  one
prays for stay of conviction, he is asking for  stay  of  operation  of  the
effects of the declaration of being guilty. =

It  has  been  consistently  held  by  this  Court  that  unless  there  are
exceptional  circumstances,  the  appellate  court  shall   not   stay   the
conviction, though the sentence may be suspended.
There is no hard and  fast
rule or guidelines as to what are those exceptional circumstances.
However,
there are certain indications  in  the  Code  of  Criminal  Procedure,  1973
itself as to which are those situations and a few indications are  available
in the judgments of this Court as to what are those circumstances.

It may be noticed that even for the suspension of the  sentence,  the  court
has to record the reasons in writing under Section 389(1) Cr.PC.
Couple  of
provisos  were  added  under  Section   389(1)   Cr.PC   pursuant   to   the
recommendations made by the Law Commission  of  India  and  observations  of
this Court in various judgments, as per Act 25 of  2005.
 It  was  regarding
the release on bail of a convict where the sentence  is  of  death  or  life
imprisonment or of a period not less than ten years.
If the appellate  court
is inclined to consider release of a convict of such  offences,  the  public
prosecutor has to be given an  opportunity  for  showing  cause  in  writing
against such release.
This is also an indication as to  the  seriousness  of
such offences and circumspection which the court should have  while  passing
the order  on  stay  of  conviction.  Similar  is  the  case  with  offences
involving moral turpitude. If the convict is involved in  crimes  which  are
so outrageous and yet beyond suspension of sentence, if the conviction  also
is stayed, it would have serious impact on  the  public  perception  on  the
integrity  institution.  Such  orders  definitely  will  shake  the   public
confidence in judiciary.
That is why, it has been cautioned time  and  again
that the court should be very wary in staying the conviction  especially  in
the types of cases referred to above and it shall be done only in very  rare
and exceptional  cases  of  irreparable  injury  coupled  with  irreversible
consequences resulting in injustice.=

In the light of  the  principles  stated  above,  the  contention  that  the
appellant will be deprived of his source of livelihood if the conviction  is
not stayed cannot be appreciated.
For the  appellant,  it  is  a  matter  of
deprivation of livelihood but he is convicted for  deprivation  of  life  of
another person.
Until he is  otherwise  declared  innocent  in  appeal,  the
stain stands.  The High Court has discussed in detail the background of  the
appellant, the nature of the crime, manner in which it was  committed,  etc.
and has rightly held that it is not a very rare  and  exceptional  case  for
staying the conviction.

We do not, thus, find any merit in the appeal and the  same  is  accordingly
dismissed. However, we make it clear that the observations in this  judgment
are only for the purpose of this order and they shall have no bearing  while
hearing the appeal.

 2014 July. Part – http://judis.nic.in/supremecourt/filename=41782

                        IN THE SUPREME COURT OF INDIA

                      CRIMINAL  APPELLATE  JURISDICTION


                      CRIMINAL APPEAL NO. 1515 OF 2014
  [Arising out of S.L.P. (Criminal) No.5654 of 2014 CRLMP No. 8191 of 2014]

Shyam Narain Pandey                               … Appellant (s)

                                   Versus

State of U.P.                                     … Respondent (s)


                               J U D G M E N T

KURIAN, J.:


Delay condoned.

Leave granted.

Scope of stay of conviction under Section 389(1) of  the  Code  of  Criminal
Procedure, 1973 (hereinafter referred to as ‘Cr.PC’), is the subject  matter
of this appeal.

Appellant was tried along  with  six  others  by  the  Court  of  Additional
Sessions Judge, Azamgarh, Uttar Pradesh. He  was  convicted  under  Sections
147, 148, 302/144 of  the  Indian  Penal  Code  (45  of  1860)  (hereinafter
referred to as ‘IPC’) read with Section 120B IPC with life imprisonment  and
fine. He was granted bail by order dated 29.08.2012 by  the  High  Court  of
Judicature at Allahabad. Thereafter, the appellant filed an application  for
staying the judgment of conviction  which  was  dismissed  by  the  impugned
order dated 07.08.2013.

By a separate order, we have cancelled the bail granted to the appellant  in
view of non-compliance of first proviso to  Section  389(1)  Cr.PC  and  the
matter has been remitted to the High Court for fresh consideration. Be  that
as it may, the High Court has considered in detail the application  made  by
the petitioner for staying the conviction and has declined  the  relief.  It
is the contention of the learned  counsel  for  the  appellant  that  he  is
innocent. He has been working as a Principal and if the  conviction  is  not
stayed, he will lose his job, will be denied of his livelihood and he  would
not be in a position  to  participate  in  subsequent  selection  procedures
conducted  by  the  U.P.  Secondary  Education  Services  Selection   Board,
Allahabad.

 We are afraid none of these contentions can be appreciated.  The  appellant
has been convicted under Sections 147, 148, 302/144 IPC  read  with  Section
120B IPC and is sentenced to undergo life imprisonment.

‘Convict’ means declared to be guilty of criminal offence by the verdict  of
court of law. That declaration is made after the court finds him  guilty  of
the charges which have been proved against him.  Thus,  in  effect,  if  one
prays for stay of conviction, he is asking for  stay  of  operation  of  the
effects of the declaration of being guilty.

It  has  been  consistently  held  by  this  Court  that  unless  there  are
exceptional  circumstances,  the  appellate  court  shall   not   stay   the
conviction, though the sentence may be suspended. There is no hard and  fast
rule or guidelines as to what are those exceptional circumstances.  However,
there are certain indications  in  the  Code  of  Criminal  Procedure,  1973
itself as to which are those situations and a few indications are  available
in the judgments of this Court as to what are those circumstances.

It may be noticed that even for the suspension of the  sentence,  the  court
has to record the reasons in writing under Section 389(1) Cr.PC.  Couple  of
provisos  were  added  under  Section   389(1)   Cr.PC   pursuant   to   the
recommendations made by the Law Commission  of  India  and  observations  of
this Court in various judgments, as per Act 25 of  2005.  It  was  regarding
the release on bail of a convict where the sentence  is  of  death  or  life
imprisonment or of a period not less than ten years. If the appellate  court
is inclined to consider release of a convict of such  offences,  the  public
prosecutor has to be given an  opportunity  for  showing  cause  in  writing
against such release. This is also an indication as to  the  seriousness  of
such offences and circumspection which the court should have  while  passing
the order  on  stay  of  conviction.  Similar  is  the  case  with  offences
involving moral turpitude. If the convict is involved in  crimes  which  are
so outrageous and yet beyond suspension of sentence, if the conviction  also
is stayed, it would have serious impact on  the  public  perception  on  the
integrity  institution.  Such  orders  definitely  will  shake  the   public
confidence in judiciary. That is why, it has been cautioned time  and  again
that the court should be very wary in staying the conviction  especially  in
the types of cases referred to above and it shall be done only in very  rare
and exceptional  cases  of  irreparable  injury  coupled  with  irreversible
consequences resulting in injustice.

In Ravikant S. Patil v. Sarvabhabhouma S. Bagali[1], a three-Judge Bench  of
this Court has held that the power to  stay  the  conviction  …  “should  be
exercised only in  exceptional  circumstances  where  failure  to  stay  the
conviction would  lead  to  injustice  and  irreversible  consequences”.  In
Navjot Singh Sidhu v. State of Punjab and  another[2],   following  Ravikant
S. Patil case (supra), at paragraph-6, this Court held as follows:

“6. The legal position is, therefore, clear  that  an  appellate  court  can
suspend or grant stay of order of conviction. But the  person  seeking  stay
of conviction should specifically draw the attention of the appellate  court
to the consequences that may arise if the conviction is not  stayed.  Unless
the attention of the court is drawn to the specific consequences that  would
follow [pic]on account  of  the  conviction,  the  person  convicted  cannot
obtain an order of stay of conviction. Further, grant of stay of  conviction
can be resorted to in rare cases depending upon the  special  facts  of  the
case.”


In State of Maharashtra through  CBI,  Anti  Corruption  Branch,  Mumbai  v.
Balakrishna  Dattatrya  Kumbhar[3],  referring            also  to  the  two
decisions cited above, it has been held at paragraph-15 that:
“15. …the appellate court in an exceptional case, may put the conviction  in
abeyance along with the sentence, but such  power  must  be  exercised  with
great circumspection and caution, for the purpose of  which,  the  applicant
must satisfy the court as regards the evil that is likely to befall him,  if
the said conviction is not suspended. The court  has  to  consider  all  the
facts as are pleaded by the applicant, in a  judicious  manner  and  examine
whether the facts and circumstances involved in  the  case  are  such,  that
they warrant such a course of action by it.  The  court  additionally,  must
record in writing, its reasons for granting such relief. Relief  of  staying
the order of conviction cannot  be  granted  only  on  the  ground  that  an
employee may lose his job, if the same is not done.”


In State of Maharashtra v. Gajanan and another[4], and  Union  of  India  v.
Atar Singh and another[5], cases under the  Prevention  of  Corruption  Act,
1988, this court had to deal with specific situation of loss of job  and  it
has been held that it is not  one  of  exceptional  cases  for  staying  the
conviction.

In the light of  the  principles  stated  above,  the  contention  that  the
appellant will be deprived of his source of livelihood if the conviction  is
not stayed cannot be appreciated. For the  appellant,  it  is  a  matter  of
deprivation of livelihood but he is convicted for  deprivation  of  life  of
another person. Until he is  otherwise  declared  innocent  in  appeal,  the
stain stands.  The High Court has discussed in detail the background of  the
appellant, the nature of the crime, manner in which it was  committed,  etc.
and has rightly held that it is not a very rare  and  exceptional  case  for
staying the conviction.

We do not, thus, find any merit in the appeal and the  same  is  accordingly
dismissed. However, we make it clear that the observations in this  judgment
are only for the purpose of this order and they shall have no bearing  while
hearing the appeal.

                                                               ..………….……….J.
                                                 (M.Y. EQBAL)
                                                               ……….………...…J.
                                                             (KURIAN JOSEPH)
New Delhi;
July 22, 2014.
-----------------------
[1]    (2007) 1 SCC 673
[2]    (2007) 2 SCC 574
[3]    2012(12) SCC 384
[4]    (2003) 12 SCC 432
[5]    (2003) 12 SCC 434

-----------------------
                                                                  REPORTABLE

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