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.
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.
-----------------------
REPORTABLE
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.
-----------------------
REPORTABLE
