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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.  

2. 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.

3. All the private respondents have been convicted by the Court  

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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.  

4. 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.

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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.”

5. 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  

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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”

6. 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  

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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,—

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

(ii) 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)

7. 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.”

8. The State has filed an affidavit on 24.04.2014. Paragraph 5 of  

the affidavit reads as follows:

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“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)

9. 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)

10.  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  

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prosecutor  having  appeared  in  the  matter  and  opposed  the  

application  for  bail,  the  statutory  requirement  of  opportunity  to  

show cause has been satisfied.  

11. 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.”

12. 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.

13. 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  

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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—

(a) 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;

(b) 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)

14. 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  

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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.

15. 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  

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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.  

16. 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.

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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.

17. 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  

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consider  afresh  their  applications  for  bail,  after  following  the  

procedure  as  per  proviso  to  Section  389  (1)  Cr.PC  as  explained  

above, expeditiously.  

18. The appeals are allowed as above.

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

                                                    ……….………...…J.        (KURIAN JOSEPH)

New Delhi; July 22, 2014.

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