ALI AHMAD versus THE STATE OF BIHAR & ANR. on 12 November 2021

O R D E R

K. M. JOSEPH, J.

(1) Leave granted.E

(2) In both these appeals, the appellant is the complainant. Hetakes exception to the order passed by the High Court which purports tobe under Section 389 of the Code of Criminal Procedure, 1973 (Cr.P.C.)

(3) By the impugned order, the second respondent in both theappeals have been released on bail. The second respondent in both theseFappeals stood trial for offences including Section 302 Indian Penal Code,1860 (IPC). They stand convicted by the trial Court and sentenced tolife. It is challenging the said conviction that the criminal appeals cameto be filed in the year 2019, before the High Court of Judicature atPatna. It is in the applications filed under Section 389 Cr.P.C. that theGimpugned orders have been passed.

(4) We have heard Shri M. Shoeb Alam, learned counsel for theappellant and Shri Gaurav Agrawal, learned counsel appearing on behalfof the second respondent in both the cases and Shri Manish Kumar,learned counsel for the State.

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(5) Learned counsel for the appellant would draw our attention toSection 389 Cr.P.C. He would point out that it is the mandate of the firstproviso that an opportunity must be afforded to the public prosecutor incase an application is moved to state his objections in writing. In thisregard, he drew our attention to the judgment of this Court in AtulTripathiv. State of Uttar Pradesh and Others (2014) 9 SCC 177 whereinthis Court has laid down inter alia as follows:

14. Service of a copy of the appeal and application for bail on thePublic Prosecutor by the appellant will not satisfy the requirementof the first proviso to Section 389(1) CrPC. The appellate courtmay even without hearing the Public Prosecutor, decline to grantbail. However, in case the appellate court is inclined to considerthe release of the convict on bail, the Public Prosecutor shall begranted an opportunity to show cause in writing as to why theappellant be not released on bail. Such a stringent provision isintroduced only to ensure that the court is apprised of all the relevantfactors so that the court may consider whether it is an appropriatecase for release having regard to the manner in which the crimeis committed, gravity of the offence, age, criminal antecedents ofthe convict, impact on public confidence in the justice-deliverysystem, etc. Despite such an opportunity being granted to thePublic Prosecutor, in case no cause is shown in writing, theappellate court shall record that the State has not filed any objectionin writing. This procedure is intended to ensure transparency, toensure that there is no allegation of collusion and to ensure thatthe court is properly assisted by the State with true and correctfacts with regard to the relevant considerations for grant of bail inrespect of serious offences, at the post conviction stage.

15. To sum up the legal position:

15.1. The appellate court, if inclined to consider therelease of a convict sentenced to punishment for death orimprisonment for life or for a period of ten years or more, shallfirst give an opportunity to the Public Prosecutor to show cause inwriting against such release.

15.2. On such opportunity being given, the State isrequired to file its objections, if any, in writing.

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A15.3. In case the Public Prosecutor does not file theobjections in writing, the appellate court shall, in its order, specifythat no objection had been filed despite the opportunity granted bythe court.

15.4. The court shall judiciously consider all the relevantBfactors whether specified in the objections or not, like gravity ofoffence, nature of the crime, age, criminal antecedents of theconvict, impact on public confidence in court, etc. before passingan order for release.”

He would point out that while it may be true that the orders showCthat public prosecutor was heard, the procedure contemplated in thefirst proviso and as referred to by this Court in the aforesaid decisionhas not been followed.

He further drew our attention to the fact that an application underSection 439 Cr.P.C. stands on a different footing from an application forDsuspension of sentence post conviction in a case which involves section302 IPC which is the offence with which we are concerned in thesecases. In other words, he drew our attention to the principle which hasbeen enunciated by this Court in the judgment reported in KashmiraSingh v. State of Punjab AIR 1977 SC 2147. He would point out that thisprinciple has been followed in later judgments as well. He would pointEout that the order does not disclose any reasoning as to justify grant ofbail in a case where the trial Court has after consideration of the evidenceconvicted the second respondent in both the cases of the offences underSection 302 included.

(6) Per contra, Shri Gaurav Agrawal, learned counsel appearingFon behalf of the second respondent, would point out that the publicprosecutor has a right to invoke the second proviso in Section 389 whichhe has not done. It is not as if he questions the locus of the appellant toimpugn the order but he would submit that on the facts, no case is madeout for interference. He further points out that pursuant to the impugnedGorders, the second respondent in both the cases, have been out on bailfor nearly two years. The appellant joins issue with the second respondenton the last contention which is that the second respondents have beenout on bail by pointing out that the appellant has followed up the matteras expeditiously as he could. Letter was circulated by the secondrespondent. The case was thereafter adjourned and the case could beHtaken up only today and it is not the fault of the appellant. It is further pointed out that the appellant cannot be blamed and this is a case wherethe impugned orders do not show any reasoning besides being afflictedwith legal flaw which has been referred to viz., not following theprocedure provided for in the first proviso.

(7) We have also heard the learned counsel for the State as alreadynoted.

(8) It is indeed true that with the introduction of the first proviso tosection 389 the law giver has stipulated a particular procedure to befollowed in a matter of releasing a person who stands convicted of seriousoffences as are indicated thereunder. Every law is intended to be followed.The fact that it is intended to be followed has been taken note of by thisCourt in judgment reported in Atul Tripathi (supra). It is despite this that,in the impugned orders, it appears that the mandate of the first provisohas not been followed. Grant of bail post conviction clearly stands on adifferent footing from grant of bail to an undertrial prisoner under Section439. The argument of the learned counsel for the second respondentthat resort could be made to the second proviso in Section 389 ismisplaced. What the second proviso speaks about is that when a personis released on bail under Section 389, it is open to the public prosecutorto seek cancellation of bail. Cancellation of bail apparently is intended todeal with cases of transgression of conditions based on the conduct ofthe appellant(applicant for bail) after the grant of bail essentially. Themandate of the first proviso must be observed in its own right.

(9) We are therefore of the view that in these cases, the impugnedorders do not conform to the requirement of the law. We must observethat the High Court must be requested to consider the applications filedby the second respondents again. However, we notice that the secondrespondent in both the cases have been out on bail based on the impugnedorders for quite some time. We, however, cannot be totally oblivious ofthe fact that criminal appeals are not taken up with the expedition withwhich they are to be taken up having regard to the docket explosion withwhich the Courts are plagued. We must be mindful of the submissionthat a careful consideration of these aspects is required when applicationsfor suspension / bail are considered based on the merits of each individualcase.

(10) We are inclined, therefore, to allow the appeals and requestthe High Court to take up the applications filed by the second respondentand to follow the procedure laid down in the Section 389. The appeals A

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Aare allowed. The impugned orders are set aside. The High Court willtake up the applications bearing in mind the mandate of Section 389including the first proviso. Further, we would direct that the secondrespondent in both the cases need not surrender during the considerationof the applications. However, their fate will depend on the considerationof the applications. We also make it clear that we have not expressed onBthe merits of the matter. Having regard to the orders passed, we requestthe High Court to take up the applications and dispose of the same withina period of six weeks from the date a copy of this order is producedbefore it.

CRIMINAL APPEAL NO. 1376 OF 2021C(Arising out of SLP (Crl.) No.2665 of 2021 (II-A)

(11) Leave granted.

(12) The appellant stands convicted under Section 302 includedof the IPC. He filed an application under Section 389. The impugnedorder reads as follows:D“List this appeal under the same heading after disposal of SpecialLeave Petition (Criminal) Diary No(s).9485 of 2020, in which theHon’ble Supreme Court has directed for issuance of notice to therespondents against the order dated 08.01.2020 passed inCr.Appeal (DB) No. 599 of 2019 by this Court, whereby the prayerEfor bail of co-convict Brij Mohan Pandey was allowed.”

(13) Today we have disposed of the case which has beenmentioned therein. Further, we need to indicate that the High Court oughtnot to have kept the matter pending based on the fact that an SLP hasbeen filed in regard to the application filed for suspension by a co-convict.FThe application for suspension of sentence and bail of the appellant oughtto have been considered on its individual merit.

(14) However, having regard also to fact that we have alreadydisposed of other cases, we see no reason as to why application filed bythe appellant under Section 389 for suspension of sentence and bail shouldnot be considered in its own right. Accordingly, we dispose of the appealGby requesting the High Court to consider the application filed by theappellant at the earliest and preferably, within a period of six weeksfrom the date of the production of the copy of this judgment.

Devika GujralH