Ali Ahmad v. the State of Bihar & Anr.

567 (5) Learned counsel for the appellant would draw our attention to Section 389 Cr.P.C. He would point out that it is the mandate of the first proviso that an opportunity must be afforded to the public prosecutor in case an application is moved to state his objections in wr iting. In this regard, he drew our attention to the judgment of this Court in Atul Tripathiv. State of Uttar Pradesh and Others (2014) 9 SCC 177 wherein this Court has laid down inter alia as follows: 14. Service of a copy of the appeal and application for bail on the Public Prosecutor by the appellant will not satisfy the requirement of the first proviso to Section 389(1) CrPC. The appellate c ourt 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 provis ion 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-de livery system, etc. Despite such an opportunity being granted to the Public Prosecutor, in case no cause is shown in writi ng, 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. 15. To sum up the legal position: 15.1. The appellate court, if inclined to consider the release of a convict sentenced to punishment for de ath 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. 15.2. On such opportunity being given, the State is required to file its objections, if any, in writing. ALI AHMAD v. THE STATE OF BIHAR & ANR. [K. M. JOSEPH, J.] 15.3. 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. 15.4. 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.” He would point out that while it may be true that the orders show that public prosecutor was heard, the procedure contemplate d in the first proviso and as referred to by this Court in the af oresaid decision has not been followed. He further drew our attention to the fact that an application under Section 439 Cr.P.C. stands on a different footing from an application for suspension of sentence post conviction in a case which involves section 302 IPC which is the offence with which we are concerned in t hese cases. In other words, he drew our attention to the principle which has been enunciated by this Court in the judgment reported in Kashmira Singh v. State of Punjab AIR 1977 SC 2147. He would point out that this principle has been followed in later judgments as well. He would point out that the order does not disclose any reasoning as to justify grant of bail in a case where the trial Court has after consideration of the evidence convicted the second respondent in both the cases of the offences under Section 302 included. (6) Per contra, Shri Gaurav Agrawal, learned counsel appearing on behalf of the second respondent, would point out that the pu blic prosecutor has a right to invoke the second proviso in Section 389 which he has not done. It is not as if he questions the locus of the appellant to impugn the order but he would submit that on the facts, no case is made out for interference. He further points out that pursuant to the impugned orders, the second respondent in both the cases, have been out on bail for nearly two years. The appellant joins issue with the second respondent on the last contention which is that the second respondents have b een out on bail by pointing out that the appellant has followed up the matter as expeditiously as he could. Letter was circulated by the second respondent. The case was thereafter adjourned and the case could be taken up only today and it is not the fault of the appellant. It is further 569 pointed out that the appellant cannot be blamed and this is a case where the impugned orders do not show any reasoning besides being afflicted with legal flaw which has been referred to viz., not f ollowing the procedure provided for in the first proviso. (7) We have also heard the learned counsel for the State as already noted. (8) It is indeed true that with the introduction of the first proviso to section 389 the law giver has stipulated a particular pr ocedure to be followed in a matter of releasing a person who stands convicted of serious offences 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 this Court in judgment reported in Atul Tripathi (supra). It is despite this that, in the impugned orders, it appears that the mandate of the first proviso has not been followed. Grant of bail post conviction clearly stands on a different footing from grant of bail to an undertrial prisoner under Section 439. The argument of the learned counsel for the second respondent that resort could be made to the second proviso in Sec tion 389 is misplaced. What the second proviso speaks about is that when a person is released on bail under Section 389, it is open to the public prosecutor to seek cancellation of bail. Cancellation of bail apparently is intended to deal with cases of transgression of conditions based on the conduct of the appellant(applicant for bail) after the grant of bail essentially. The mandate of the first proviso must be observed in its own right. (9) We are therefore of the view that in these cases, the impugned orders do not conform to the requirement of the law. We must observe that the High Court must be requested to consider the applications filed by the second respondents again. However, we notice that the sec ond respondent in both the cases have been out on bail based on the impugned orders for quite some time. We, however, cannot be totally oblivious of the fact that criminal appeals are not taken up with the expedition with which they are to be taken up having regard to the docket explosion with which the Courts are plagued. We must be mindful of the submi ssion that a careful consideration of these aspects is required when applications for suspension / bail are considered based on the merits of each individual case. (10) We are inclined, therefore, to allow the appeals and request the High Court to take up the applications filed by the second respondent and to follow the procedure laid down in the Section 389. The appeals ALI AHMAD v. THE STATE OF BIHAR & ANR. [K. M. JOSEPH, J.] are allowed. The impugned orders are set aside. The High C ourt will take up the applications bearing in mind the mandate of Se ction 389 including the first proviso. Further, we would direct that the s econd respondent in both the cases need not surrender during the consideration of the applications. However, their fate will depend on the consideration of the applications. We also make it clear that we have not expressed on the merits of the matter. Having regard to the orders passed, we request the High Court to take up the applications and dispose of the same within a period of six weeks from the date a copy of this order is produced before it. CRIMINAL APPEAL NO. 1376 OF 2021 (Arising out of SLP (Crl.) No.2665 of 2021 (II-A) (11) Leave granted. (12) The appellant stands convicted under Section 302 included of the IPC. He filed an application under Section 389. The im pugned order reads as follows: “List this appeal under the same heading after disposal of Special Leave Petition (Criminal) Diary No(s).9485 of 2020, in which the Hon’ble Supreme Court has directed for issuance of notice to the respondents against the order dated 08.01.2020 pass ed in Cr.Appeal (DB) No. 599 of 2019 by this Court, whereby the prayer for bail of co-convict Brij Mohan Pandey was allowed.” (13) Today we have disposed of the case which has b een mentioned therein. Further, we need to indicate that the High Court ought not to have kept the matter pending based on the fact that an SLP has been filed in regard to the application filed for suspension by a co-convict. The application for suspension of sentence and bail of the appellant ought to have been considered on its individual merit. (14) However, having regard also to fact that we have alread y disposed of other cases, we see no reason as to why application filed by the appellant under Section 389 for suspension of sentence and bail should not be considered in its own right. Accordingly, we dispose of the appeal by requesting the High Court to consider the application filed by the appellant at the earliest and preferably, within a period of six weeks from the date of the production of the copy of this judgment. Devika Gujral Appeals allowed.