# In Re- Procedure To Be Followed In Hearing Of Criminal Appeals v. State of U.P

- **Citation:** (2025) 1 ILRA 811
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-22
- **Case number:** Criminal Reference No. 1 of 2024
- **Bench:** Mrs. Sangeeta Chandra, Pankaj Bhatia, Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/in-re-procedure-to-be-followed-in-hearing-of-criminal-appeals-v-state-of-u-p-53100
- **Pages:** 63

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 70, 71, 72, 73, 74,
75, 76, 77, 78, 79, 81, 86, 341, 349, 372,
374, 377, 378, 390 & 446 - Allahabad High
Court Rules, 1952 - Rule 18, 22 & 41 -
Criminal Reference - in an appeal against
acquittal while summoning the accused person
under Section 390 Cr.P.C. coercive process even
of the nature of bailable warrant or non-bailable
warrant may be issued against the appellant
having regard to the peculiar facts and
circumstances of each case but it may not be
construed to mean that in each and every
appeal against acquittal the accused person
must be summoned in variably by issuing
bailable or non-bailable warrants and in an
appropriate case summons may also be issued
and in appeal against conviction wherein an
812 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant has already been released on bail and
his counsel is not appearing for arguing the
appeal no warrant of arrest could be issued
straightaway against him and only bailable
warrant be issued at the first instance to ensure
his representation.
(Para - 119)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 70, 71, 72, 73, 74,
75, 76, 77, 78, 79, 81, 86, 341, 349, 372,
374, 377, 378, 390 & 446 - Allahabad High
Court Rules, 1952- Rule 18, 22 & 41 -
Criminal
Reference
-
where
non-bailable
warrants issued against an appellant - in appeal
against conviction or against acquittal - and - as
to whether such accused person or appellant
against whom non-bailable warrants have been
issued by High court, may be released on bail by
the District Court or the Chief Judicial Magistrate
concerned
without
any
such
stipulation
occurring in the order of the High Court - held,
they have no jurisdiction to release such person
on bail - thus, observation & directions as
contained in order dated 18.01.2024 passed in
Government Appeal No. 454/2022 and the
directions dated 19.01.2024 in Government
Appeal No. 2552/1981 cannot be said to be a
correct appreciation of law.
(Para - 120, 155)

(C) Criminal Law - Criminal Procedure
Code, 1973 - Sections 70, 71, 72, 73, 74,
75, 76, 77, 78, 79, 81, 86, 341, 349, 372,
374, 377, 378, 390 & 446 - Allahabad High
Court Rules, 1952- Rule 18, 22 & 41 -
Criminal Reference - Whether an appeal, either
against acquittal or conviction, can be heard by
appointing an Amicus Curiae for the accusedrespondent or the convicted-appellant - an
appellant who is avoiding his presence before
the court and is not cooperating with hearing of
the appeal may not be allowed to do-so - held,
if the appellate court is satisfied that delaying
tactics are being adopted by such an accused or
appellant/convict, it may act in accordance with
the law laid down by the Hon'ble Supreme Court
in case of 'Bani Singh & ors.Vs St. of U.P.', Surya
Baksh Singh Vs St. of UP, and 'K.S. Panduranga
Vs St. of Karn.' and in 'Anokhilal Vs St. of MP' -
answered accordingly.
(Para - 155)

Disposed of. (E-11)

List of Cases cited:

## Text

_Characters 0–39,987 of 214,816. This is a partial read: ask again with offset=39987 for what follows._

1 All. In Re- Procedure To Be Followed In Hearing Of Criminal Appeals Vs. State of U.P.
811
petitioner as a contractual worker
was not made under the Dying-in-Harness
Rules, 1974. Consequently the petitioner
cannot be treated as a regularly appointed
employee and is not entitled to benefits
claimed by him. Further, the petitioner
cannot set up a claim for appointment on
compassionate ground at this belated stage
under the Dying-in-Harness Rules, 1974.

30. Reliance placed on the
judgement rendered by this Court in
Umesh Kumar v. State of U.P.11 is
misconceived.
The
judgement
is
distinguishable on facts. In the case of
Umesh Kumar (supra) this Court has
specifically observed that the respondents
had not taken a stand that more than five
years had elapsed from the date of death of
his father. In the instant case the petitioner
has been non suited on the solely footing
that there was a delay of more than five
years in making the application for
appointment and that the delay has not been
condoned by the competent authority.
Furthermore, the judgement in Umesh
Kumar (supra) was rendered in the
context of a ban purportedly imposed on
appointments on compassionate ground by
the Government Order dated 11.07.2003.
The ban is not an issue in the instant case.

31. In the facts of this case,
contractual employment of the said nature
cannot be converted into an appointment
under the Dying-in-Harness Rules, 1974. If
this course is made permissible it will
become a novel device to breach specific
statutory provisions.

32. The Managing Director of the
UPSRTC shall cause an enquiry to be
conducted as to how appointments of this
nature are being made only as a device to
overreach and violate the provisions of the
Dying-in-Harness Rules, 1974. Appropriate
action will be taken thereafter as per law.

33. The writ petition is dismissed.
----------
(2025) 1 ILRA 811
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.01.2025

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.
THE HON'BLE PANKAJ BHATIA, J.
THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Reference No. 1 of 2024

In Re- Procedure To Be Followed In
Hearing Of Criminal Appeals ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Suo Moto, Apoorva Tewari, Ayush Tandon,
Alok Mishra, Nadeem Murtaza, Naved Ali,
Rajat Gangwar, S M Singh Royekwar, Vikas
Vikram Singh

Counsel for the Respondent:
G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 70, 71, 72, 73, 74,
75, 76, 77, 78, 79, 81, 86, 341, 349, 372,
374, 377, 378, 390 & 446 - Allahabad High
Court Rules, 1952 - Rule 18, 22 & 41 -
Criminal Reference - in an appeal against
acquittal while summoning the accused person
under Section 390 Cr.P.C. coercive process even
of the nature of bailable warrant or non-bailable
warrant may be issued against the appellant
having regard to the peculiar facts and
circumstances of each case but it may not be
construed to mean that in each and every
appeal against acquittal the accused person
must be summoned in variably by issuing
bailable or non-bailable warrants and in an
appropriate case summons may also be issued
and in appeal against conviction wherein an
812 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant has already been released on bail and
his counsel is not appearing for arguing the
appeal no warrant of arrest could be issued
straightaway against him and only bailable
warrant be issued at the first instance to ensure
his representation.
(Para - 119)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 70, 71, 72, 73, 74,
75, 76, 77, 78, 79, 81, 86, 341, 349, 372,
374, 377, 378, 390 & 446 - Allahabad High
Court Rules, 1952- Rule 18, 22 & 41 -
Criminal
Reference
-
where
non-bailable
warrants issued against an appellant - in appeal
against conviction or against acquittal - and - as
to whether such accused person or appellant
against whom non-bailable warrants have been
issued by High court, may be released on bail by
the District Court or the Chief Judicial Magistrate
concerned
without
any
such
stipulation
occurring in the order of the High Court - held,
they have no jurisdiction to release such person
on bail - thus, observation & directions as
contained in order dated 18.01.2024 passed in
Government Appeal No. 454/2022 and the
directions dated 19.01.2024 in Government
Appeal No. 2552/1981 cannot be said to be a
correct appreciation of law.
(Para - 120, 155)

(C) Criminal Law - Criminal Procedure
Code, 1973 - Sections 70, 71, 72, 73, 74,
75, 76, 77, 78, 79, 81, 86, 341, 349, 372,
374, 377, 378, 390 & 446 - Allahabad High
Court Rules, 1952- Rule 18, 22 & 41 -
Criminal Reference - Whether an appeal, either
against acquittal or conviction, can be heard by
appointing an Amicus Curiae for the accusedrespondent or the convicted-appellant - an
appellant who is avoiding his presence before
the court and is not cooperating with hearing of
the appeal may not be allowed to do-so - held,
if the appellate court is satisfied that delaying
tactics are being adopted by such an accused or
appellant/convict, it may act in accordance with
the law laid down by the Hon'ble Supreme Court
in case of 'Bani Singh & ors.Vs St. of U.P.', Surya
Baksh Singh Vs St. of UP, and 'K.S. Panduranga
Vs St. of Karn.' and in 'Anokhilal Vs St. of MP' -
answered accordingly.
(Para - 155)

Disposed of. (E-11)

List of Cases cited:

1. St. of U.P. Vs Geeta Devi & anr.- order dated
18.01.2024 - Govt Appeal No. 454 of 2022,

2. St. of U.P. Vs Shamsuddin Khan & ors. - order
dated 19.01.2024 - Govt Appeal No. 2552 of
1981,

3. Raj Narayan, Criminal Appeal No.1817 of
2003, decided on 23.06.2023,

4. Rajoo @ Ramakant Vs St. of M.P., 2012 (8)
SCC 553,

5. Raghuvansh Dewan Chand Bhasin Vs St. of
Mah. & ors., 2012 (9) SCC 791,

6. Inder Mohan Goswami Vs St. of Uttaranchal,
2007 (12) SCC 1,

7. Dhananjay Rai @ Guddu Rai Vs St. of Bihar
2022 (14) SCC 95,

8. K. Muruganandam & ors. Vs St., 2021 (20)
SCC 642,

9. Hussainara Khatoon Vs Home Secretary, St.
of Bihar, Patna, 1981 SC 928 (4),

10. Anokhi Lal Vs St. of M.P., 2019 (20) SCC
196,

11. Zahira Habibullah Sheikh & anr.Vs St. of
Guj., 2004 (4) SCC 158,

12. Mohammad Hussain Vs St. 2012 (9) SCC
408,

13. Niraj Devnarayan Shukla & ors. Vs St. of
Gujarat, 2015 SCC OnLine Gujarat 6269,

14. Bani Singh Vs St. of U.P., 1996 (4) SCC
720,

15. Surya Baksh Singh Vs St. of U.P., 2014 (14)
SCC 222,

16. K.S. Panduranga Vs St. of Karn., 2013 (3)
SCC 721,
1 All. In Re- Procedure To Be Followed In Hearing Of Criminal Appeals Vs. State of U.P.
813
17. Dilip S Dahanukar Vs Kotak Mahindra Comp.
Ltd., 2007 (6) SCC 528,

18. Satyendra Kumar Antil Vs C.B.I. 2022 (10)
SCC 51,

19.
Sarah
Matthew
Vs
Institute
of
Cardiovascular Diseases, 2014 (2) SCC 62,

20. Dhanna Lal Vs Kalavati Bai, 2002 (6) SCC 16,

21. Dayal Singh Vs St. of Uttaranchal, 2012 (3)
SCC 263,

22. Mohammed Firoz Vs St. of M.P., 2022 (7)
SCC 443,

23. St. (NCT of Delhi) Vs Shiv Kumar Yadav,
2016 (2) SCC 402,

24. Somesh Chaurasia Vs St. of M.P., 2022 (19)
SCC 480,

25. Abdul Basit Vs Mohammed Abdul Qadir
Chaudhary, 2014 (10) SCC 754,

26. Purshottam Vs St. of T.N., 2023 SCC OnLine
SC 1410,

27. Ashish Chaddha Vs Asha Kumari & anr., 2012
(1) SCC 680,

28. Madan Mohan Vs St. of Raj. & ors., 2018
(12) SCC 30,

29. Smt. Maya Dixit Vs St. of U.P., 2010 (83)
ALR 664,

30. St. of U.P. & ors. Vs Anil Kumar Sharma &
anr., 2015 (6) SCC 716,

31. Praneeta Prakash Navage Vs St. of Mah. &
ors., 2012 SCC OnLine Bombay 1085,

32. Popular Muthaiah Vs St. represented by
Inspector of Police, 2006 (7) SCC 296,

33. Sanjay Dubey Vs St. of M.P., 2023 SCC
OnLine Supreme Court 610,

34. St. of U.P. Vs Poosu & anr., 1976 (3) SCC 1
31 Kabira Vs St. of U.P., 1982 SCC (Criminal)
144,
35. Mohammad Sukur Ali Vs St. of Assam 2011
(4) SCC 729,

36. A.S. Mohammed Rafi Vs St. of T.N.& ors.,
AIR 2011 SC 308,

37. Man Singh & anr.Vs St. of M.P. 2008 (9) SCC
542,

38. Bapu Limbaji Kamble Vs St. of Mah., 2005
(11) SC 412,

39. Balakrishna Mahadev Lad Vs St. of Mah.,
2012 SCC OnLine Bombay 1490,

40. St. of Punjab Vs Davinder Pal Singh Bhullar
& ors., 2011 (14) SCC 770,

41. Laxman Das Vs Resham Chand Kalia & anr.,
2018 (3) SCC 187,

42. St. of Mah. Vs Mahesh Kariman Tirky & ors.,
2023 (1) SCC (Criminal) 137,

43. Laxman Das Chagan Lal Bhatia & ors. Vs St.
by the High Court of Bombay, AIR 1968 Bombay
400,

44. Imtiyaz Raza Khan Vs St. of Mah., 2018 (9)
SCC 160,

45. Khatri & ors. Vs St. of Bihar & ors., (1981) 1
SCC 627,

46. Suk Das Vs UT of Arunachal Pradesh, (1986)
2 SCC 401,

47. Shyam Deo Pandey Vs St. of Bihar, (1971) 1
SCC 855,

48. Ram Naresh Yadav Vs St. of Bihar, AIR 1987
SC 1500,

49. Dharam Pal & ors. Vs St. of U.P., (2008) 17
SCC 337,

50. Christopher Raj Vs K. Vijayakumar, (2019) 7
SCC 398.

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J. & Hon'ble Pankaj Bhatia, J. &
Hon'ble Mohd. Faiz Alam Khan, J.)
814 INDIAN LAW REPORTS ALLAHABAD SERIES

1. We have heard Shri Apoorva
Tiwari, Shri Nadeem Murtaza, assisted by
S/Shri Wali Nawaz Khan, Harsh Vardhan
Kedia and Ms. Smigdha Singh, Shri S.M.
Singh Royekwar, assisted by Shri Sumeet
Tahilramani, Sri Vikas Vikram Singh, Sri
Naved Ali, Sri Rajat Gangwar, Sri Alok
Mishra, assisted by Shri Ajeet Kumar
Mishra,
Sri
Ayush
Tandon,
learned
Advocates, as also Dr. V.K. Singh, learned
Government Advocate, Sri Umesh Chandra
Verma, learned Additional Government
Advocate-I, Shri Pawan Kumar Mishra,
learned Additional Government Advocate,
Sri Shivendra Shivam Singh Rathore,
learned counsel for the State, Shri Bhavesh
Chandel and Shri Shivang Tiwari, learned
counsel at length.

2. This Reference has arisen out of
order dated 12.03.2024 passed in Criminal
Appeal No.465 of 1999: Surendra Prasad
Misra and another Vs. State of U.P. and
others,
wherein
a
Division
Bench
(hereinafter referred to as 'the Bench at
Lucknow') while hearing the Appeal was
apprised of two orders of Coordinate Bench
(hereinafter referred to as 'the Bench at
Allahabad'), dated 18.01.2024 passed in
Govt Appeal No.454 of 2022: State of U.P.
Vs. Geeta Devi and another; and the order
dated 19.01.2024 passed in Govt Appeal
No.2552 of 1981: State of U.P. Vs.
Shamsuddin Khan and others.

3. The order dated 18.01.2024
passed by the Division Bench at Allahabad
in Government Appeal No. 454 of 2022 is
being reproduced as under:-

"1.
Heard
learned
AGA
appearing for the State and learned
counsel for the respondents.

2.
The
present
Government
Appeal has been filed by the State against
the order of acquittal dated 7.6.2018
passed by the Additional Sessions Judge /
FTC No. 3, Muzaffar Nagar in ST No. 299
of 2007, under Sections 302, 201, 364,
120B IPC (State Vs. Brajpal and others).

3. We have gone through the
order dated 9.9.2022 of this Court which
was passed on the appeal filed by the State
against the judgment of acquittal dated
7.6.2018. By the order dated 9.9.2022, the
respondents were directed to furnish
personal bond with two sureties in the like
amount to the satisfaction of the learned
CJM. However, it appears that they could
not be served and thereafter Non bailable
warrants were issued and they were
arrested.

4. Learned counsel submits that
both the respondents are in custody since
27.11.2022 i.e for a period of one year and
three months.

5. Though the Bench is not in
agreement with the procedure followed by the
Court that in a State appeal challenging the
judgment of acquittal, the issuance of Non
Bailable Warrants would interpretate that
police authority will execute the same and
produce the concerned person before the
High Court so that some effective order be
passed with regard to their bail. However, in
the instant case despite acquittal, the
respondents are in judicial custody for more
than one year and three months because
bailable warrants were not executed. It is
worth noticing to reproduce Section 390 of
Cr.P.C. which read a under :

"Section 390: Arrest of accused
in appeal from acquittal:- When an appeal
is presented under section 378, the High
Court may issue a warrant directing that
the accused be arrested and brought before
it or any subordinate Court, and the Court
before which he is brought may commit him
to prison pending the disposal of the appeal
or admit him to bail."
1 All. In Re- Procedure To Be Followed In Hearing Of Criminal Appeals Vs. State of U.P.
815
6. Similarity, in order to
procure the presence of accused persons,
the Court has an alternative option to order
for attachment of property of person
absconding under Section 83 Cr.P.C..
Further, Section 80 of Cr.P.C. provides for
arrest of person against whom warrant is
issued and it provides for taking security
under Section 71 of Cr.P.C for production
before the Court, such person may be
released under Section 81 Cr.P.C.

7. A perusal of Section 390
Cr.P.C. clearly gives power to the Court
before whom a accused is brought, either
to send him to prison or admit him to bail.
It is also worth noticing that repeatedly
such type of cases are coming where in
appeal in pursuance of the Non Bailable
Warrant issued by the High Court to the
accused who were acquitted from the trial
court re languishing in jail for more than
one year because they were either not
served with the warrant or could not
engage Advocate in the High Court. It is
held by a full Bench of Bombay High Court
while interpretating provisions of Section
390 Cr.P.C. that the very purpose of this
Section is to ensure presence of an accused
before the Court. In view of the above, we
deem it appropriate to issue a direction to
the
Director,
Judicial
Training
and
Research Institute, Lucknow to take online
seminar
of
all
the
Chief
Judicial
Magistrates as well as Secretary, District
Legal Services Authority and inform that :

(a) As and when Non Bailable
Warrants are issued in appeal from
acquittal and accused is brought before the
CJM / Ilaka Magistrate, he will be admitted
bail subject to furnishing bail bonds to
their satisfaction and on undertaking that
they will appear before the High Court on
particular date as per the order of the
Court.

(b) Even in cases where appeal
against conviction is pending before the
High Court and sentence is suspended and
either he or his counsel could not appear
before the High Court and Non Bailable
Warrants are issued on and produced
before the CJM, they will be released on
bail to the satisfaction of the court
concerned with an undertaking that they
will appear before the High Court.

(c) The Director of the Judicial
Training and Research Institute, Lucknow
will conduct a survey in the State of U.P. to
find out where in terms of issuance of Non
Bailable Warrant either in case of bail
against acquittal or in case where accused
sentence is suspended, but subsequently he
failed to appear, is in jail (prison) for
considerable long time, they will be
released on bail in same terms as
mentioned in above sub para (a) and (b).

(d) Since keeping a person in
judicial custody for long time without any
justification violate the right of life and
liberty of such person, after 30 days of this
order, if still bails are not granted, this
Court will impose cost of Rs. 50,000/- to be
paid by the District State Legal Services
Authority concerned.

8. Be whatsoever, the Court deem
it appropriate to release the respondents on
bail.

9. Let the respondents namely
Gita Devi and Afzal be released on bail
subject to the satisfaction of the court
concerned.

10. Registrar General of this
Court is directed to communicate this order
to the Director, Judicial Training and
Research Institute, Lucknow within a week
from today and submit compliance report
on the next date fixed.

Order on Appeal

List the matter 30.01.2024. "
816 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The observations made by the same
Bench at Allahabad in its order dated
19.01.2024 passed in Government Appeal
No. 2552 of 1981 are also reproduced as
under:-

"1. This Government Appeal was
filed in the year 1981 challenging the
judgment of acquittal passed in favour of
the opposite parties.

2. As per earlier order dated
14.12.2022, non bailable warrants were
issued against the accused-respondent no.1
and
the
Chief
Judicial
Magistrate
concerned
was
directed
to
sent
a
compliance report.

3.
An
office
report
dated
20.01.2023 was later on submitted stating
therein that the sureties of opposite
party/respondent no.1 Shamshuddin are
Bashir, who died on 08.04.2016 and Ram
Kripal, who is about 70 years old and
cannot walk, whereas all sureties of
respondent nos. 2 and 5 have died.

4. Thereafter again non-bailable
warrants were issued against opposite
party nos. 1 and 4 and the matter remains
pending for considerable long time.

5.
Learned
counsel
for
respondent no.1, namely Shamshuddin
Khan submits that he is in jail and
presently detained in District Jail, Banda.
Even thereafter the case was listed on
number of occasions but it has been noticed
in the order dated 10.04.2023 that
respondent no.1
namely
Shamshuddin
Khan is not traceable though he is already
lodged in District Jail, Banda. The opposite
party no.1 is in the judicial custody since
23.02.2023.

6. Learned A.G.A. could not
dispute the above contention.

7. Considering the facts and
circumstances of the case, issuance of nonbailable-warrants to procure the presence
of respondent no.1 so that he may engage a
counsel and defend his case through the
counsel, has no relevance. We deem it
appropriate to grant bail to the accusedrespondent no.1
namely
Shamshuddin
Khan.

8. Let opposite party no.1-
Shamshuddin Khan be released on bail
subject to the satisfaction of the court
concerned.

9. In a Government Appeal
bearing Government Appeal No. 454 of
2022 (State of U.P. Vs. Geeta Devi & Anr.),
this Court in similar situation has already
directed the Director, Judicial Training
and Research Institute, Lucknow that an
online seminar of all the Chief Judicial
Magistrates through out the Sate of Uttar
Pradesh regarding the procedures to be
followed in the matter of grant of bail of the
accused, who are in jail since long and
their
appeals
are
pending
for
consideration.

10. Such procedures mentioned in
the
above
Government
Appeal
give
discretion to the Court of Chief Judicial
Magistrate specially the Ilaka Magistrate
to grant bail in such cases where the
purpose
of
issuance
of
non-bailable
warrants is to procure the presence of the
accused especially in the cases where an
accused person has acquitted from the trial
court and non-bailable warrants are issued
in an appeal filed by the State.

11. The Registrar General of this
Court is directed to communicate this order
forthwith to the Director, Judicial Training
and Research Institute, Lucknow within a
week from today and submit compliance
report on the next date fixed.

Order on Appeal

12. List this case on 30.01.2024. "

5. The Bench at Lucknow hearing the
Criminal Appeal No.465 of 1999: Surendra
1 All. In Re- Procedure To Be Followed In Hearing Of Criminal Appeals Vs. State of U.P.
817
Prasad Misra Vs. State of U.P. and others,
was not in agreement with the view
expressed by the Coordinate Bench at
Allahabad in its orders dated 18.01.2024
and 19.01.2024, and has referred the matter
to the Hon'ble Chief Justice by its order
dated 12.03.2024. The Division Bench at
Lucknow
has
framed
the
following
questions for consideration by a Larger
Bench: -

"1. Whether the Chief Judicial
Magistrate or any other Magistrate can
enlarge an acquitted person or a person
convicted of an offence on bail, even in a
case, wherein an Appeal against acquittal
or conviction, as the case maybe, the High
Court or any other Appellate Court has
issued non-bailable warrant for securing
his presence without any such stipulation
there in for release by the Court below,
when such non-bailable warrant has been
issued at a subsequent stage of Appeal and
not at the admission stage?

"2. Assuming the Magistrate has
jurisdiction as referred in question No.1,
whether a general direction of a mandatory
nature can be issued by the High Court to
the Magistrate for such release, as has
been done vide order dated 18.01.2024
Government Appeal No. 454 of 2022 and
order dated 19.01.2024, Govt Appeal No.
2552 of 1981? does it not deprive the
Magistrate of his discretion in this regard
to consider such release on case to case
basis in view of the law discussed?

"3. Whether the observations and
directions as contained in the order dated
18.01.2024 in Govt Appeal No. 454 of
2022: State of U.P. Vs. Geeta Devi and
another
and
the
directions
dated
19.01.2024 in Govt Appeal No. 2552 of
1981, State of U.P. Vs. Shamsuddin Khan
and others are in accordance with law?

"4.
What
are
the
modes
prescribed in law for securing the presence
of acquitted person or one who has been
convicted, in an Appeal before the High
Court and what should be the course to be
ordinarily adopted by the High Court in
exercise
of
its
appellate
criminal
jurisdiction for securing such presence to
facilitate hearing of such appeals?

"5. Whether an Appeal, either
against acquittal or conviction, can be
heard by appointing an Amicus Curiae for
the accused-respondent or the convicted
appellant, as the case maybe, in the event
he is not appearing in the proceedings,
though his presence can be secured,
without his consent and without any
intimation to him, if so, under what
circumstances?"

6. After this Larger Bench was
constituted and the matter came up before
this Court, it was pointed out that Criminal
Appeal No.465 of 1999 will remain
pending during the course of arguments
and till judgement is rendered in this
reference, although the questions that have
been referred to this Court by the Division
Bench had nothing at all to do with the
merits of Criminal Appeal No. 465 of 1999,
but related to the general practice and
procedure to be followed in hearing of
criminal appeals. This Court therefore
passed an order on 22.03.2024, directing
the registry to separate the record of
Criminal Appeal No. 465 of 1999 and send
it to the appropriate Bench for decision on
its own merits and to register the Reference
under different cause title i.e. :-"in reProcedure to be followed in Hearing of
Criminal Appeals"

7. Also, this Court was of the opinion
by a majority of 2:1, that during the
pendency of the Reference, the directions
818 INDIAN LAW REPORTS ALLAHABAD SERIES
by the Division Bench at Allahabad in
Government Appeal No. 454 of 2022, and
Govt. Appeal No.2552 of 1981 should
remain stayed and ordered accordingly.

8. We had asked all members of the
Bar to address the Court with regard to the
questions that were framed and referred to
us as we were of the opinion that it would
be of great interest to all the members of
the Bar that the questions referred to us are
deliberated upon with the assistance of all
the members of the Bar as answers to such
questions would govern the procedure to be
followed by this Court in all criminal
appeals in future.

9. We must at the outset express our
great appreciation for the efforts made by
all young members of the Bar and also by
the learned Government Advocate and his
team of Additional Government Advocates
in helping this Court thrash out the matter
threadbare, and render its answers to the
questions aforesaid.

10. Sri Nadeem Murtaza has argued
that several types of Appeals are provided
under Cr.P.C. and besides Appeals against
conviction and acquittal, Chapter 29 of the
Cr.P.C. provides for other types of appeals
to the High Court ,viz:-

Section 372 - right of victims to
prefer an Appeal against acquittal or
against conviction for a lesser offence or
against
imposition
of
inadequate
compensation.

Section 374 - Appeal against
conviction.

Section 377 - Appeals by State
Government on the ground of inadequacy
of sentence.

Section 378- Appeals against
acquittal (only with the leave of the High
Court).

The Chapter with respect to Appeals
in
Cr.P.C.
is
neither
absolute
nor
exhaustive, as many provisions relating to
Appeals before the High Court are
provided in Cr.P.C. outside the said
Chapter as well, which are as follows: -

Section 86- Appeals from orders
rejecting applications for restoration of
attached property.

Section 341 - Appeals with
respect
to
offences
affecting
the
administration of justice.

Section 449 - Appeal from
orders under Section 446 (that is in cases of
forfeiture of bonds).

11. It has been argued by Sri Nadeem
Murtaza that questions posted by the
Reference order by the Division Bench at
Lucknow for consideration before this
Court do not strictly come under the
purview of Section 390 Cr.P.C., as the
power under the Section is exercised at the
time of admission of Appeal while such
questions
relate
specifically
to
nonappearance of a person at a subsequent
stage of an Appeal, that is when it has been
admitted and the matter is ripe for final
hearing.

12. With regard to directions to the
CJM or any other Magistrate to enlarge an
acquitted person or a person convicted of
an offence on bail, even in cases where the
High Court has issued non-bailable warrant
is concerned, a reference has been made to
Chapter VI of the Cr.P.C., which relates to
processes to compel appearance which are
divided into four distinct parts, i.e. A-
Summons; B- warrant of arrest; C-
1 All. In Re- Procedure To Be Followed In Hearing Of Criminal Appeals Vs. State of U.P.
819
Proclamation and Attachment; and D- other
rules regarding process.

Part B of Chapter VI relating to
warrant of arrest starts from Section 70 and
ends with Section 81.

Section 70 provides for the form
of arrest warrant and its duration. Section
70 (2) clarify that every warrant shall
remain in force until the same is cancelled
by the Court, which issued it or until it is
executed by means of arrest of the person
against whom warrant is issued .

Section
71
provides
for
a
discretion to the Court while issuing
warrant of arrest to Direct, taking of
security from the arrested person for his
attendance before the Court at a specified
time, and in case such security is provided,
the person who is arrested is to be released
after compliance of the same.

Section 72 provides that warrant
can be directed to one or more Police
officers, and the same can be executed by
all or by any one or more of them.

Section 73 provides that the
Magistrate may direct a warrant to any
person within his local jurisdiction for the
arrest of any escaped convict, proclaimed
offender, or any person who is accused of a
non-bailable offence and is avoiding arrest.
Section 73(3) provides that when the
person against whom such warrant is issued
is arrested, he shall be made over with the
warrant to the nearest Police officer, shall
cause him to be taken before a Magistrate
having jurisdiction, unless security is taken
under Section 71.

Section
74
provides
that
a
warrant directed to a Police officer may
also be executed by any other Police officer
whose name is endorsed upon the warrant
by the officer to whom it is directed.

Section
75
provides
for
notification of the warrant.

Section 76 provides that the
Police officer or the person executing the
warrant shall, without unnecessary delay,
bring the person arrested before the Court
before which he is required by law to
produce such person. Although what would
the course of law in such case be before
which the arrested person is required by
law to be brought is not mentioned in the
Section, the proviso to the said Section
clarifies that the delay in producing the
person arrested in any case, shall not
exceed 24 hours, exclusive of the time
necessary for the journey from the place of
arrest to the Magistrate's Court. It is
evident that after being arrested in
pursuance of a warrant, a person is required
to
be
produced
before
the
nearest
Magistrate within 24 hours, however,
Section 76 does not provide for the
options/choices available to the Magistrate
after production of the arrested person.
Rather, Section 76 is only relatable to the
powers and duties of the Police officer or
the person who has arrested any person
against whom the warrant has been issued.

Section 77 to Section 80 relate to
arrest made outside the Local jurisdiction
of the Court issuing a warrant.

Section 77 provides that warrant
of arrest may be executed at any place in
India.

Section 78 provides that when a
warrant is to be executed outside the
jurisdiction of the Court issuing it, such
Court may instead of directing the warrant
to a Police officer, forward it by post or
otherwise to any Executive Magistrate or
District
Superintendent
of
Police
or
Commissioner of Police, within the local
limits of the Court, within the jurisdiction
of which it is to be executed. Section 78(2)
provides that the Court issuing a warrant
under subsection (1) shall forward, along
with the warrant, the substance of the
820 INDIAN LAW REPORTS ALLAHABAD SERIES
information against the person to be
arrested, together with such documents, if
any, as maybe sufficient to enable the
Court acting under Section 81, to decide
whether bail should or should not be
granted to the person.

Section 79 provides for the
procedure to be adopted for the execution
of warrant by the Executive Magistrate or
by Police officer, not below the rank of an
officer in charge of a Police Station, and
Section 80 provides for procedure of arrest
of the person for whom the warrant has
been issued.

13. Sri Nadeem Murtaza has argued
that different Benches of this Court follow
different standards for issuing Non Bailable
Warrants and he has also placed before this
Court different orders passed by the Court
in Appellate Jurisdiction issuing nonbailable warrants against the convictappellant or the respondent-accused. It has
been argued that although the Supreme
Court has repeatedly observed that nonbailable warrants should be issued as a last
resort after the litigant fails to respond to
notices/summons and bailable warrants;
sometimes this Court in a routine manner
has issued non-bailable warrants against the
appellants and directed the Magistrate to
place the appellants into custody and send
them to jail when they are arrested or
surrender before the Court and the
Magistrate is directed to submit his report
on the date fixed in the matter. Sometimes
non-bailable warrants are issued with a
specific direction that as and when the
appellants are arrested or surrender before
the Court, they shall be enlarged on bail by
the C.J.M. concerned on their furnishing
two adequate sureties and a personal bond,
each of them for a like amount, and on the
undertaking that they will remain present
before this Court on the next date fixed
either personally or through Counsel. On
other occasions, the Court while issuing
non-bailable warrant has noticed that the
Appeal is pending since long and that the
appellants were released on bail but no one
has appeared on their behalf to argue the
matter. Sometimes, the Court has directed
preparation
of
paper
book
or
has
summoned
Trial
Court
record
and
simultaneously the Court has directed
notice to be issued to the sureties under
Section 446 Cr.P.C. as also issued a nonbailable warrant. Sometimes the Court has
issued non-bailable warrant with a specific
direction that in case such non-bailable
warrant is not executed, the C.J.M.
concerned shall file his personal affidavit.

14. In the case of Raj Narayan,
Criminal Appeal No.1817 of 2003, decided
on 23.06.2023 initially no one had turned
up on behalf of the appellant to press the
Appeal and this Court had directed bailable
warrant to be issued. The office report
showed that the appellant had sold his
property and moved somewhere else. Fresh
non-bailable warrant as well as process
under Sections 82 and 83 Cr.P.C. against
the appellant were issued and at the same
time notice was issued to the sureties under
Section 446 Cr.P.C. and the CJM was
directed to take help of the Senior
Superintendent of Police of the District in
apprehending the appellant. The appellant
was arrested and the Legal Aid Services
Authority appointed an Advocate to present
his case before the High Court. He
informed the Court that the appellant had
completed the period of his incarceration of
seven years rigorous imprisonment and was
released from Central Jail thereafter in
2009 itself, which fact could not be brought
to the notice of the Court in the Appeal.
Consequently, when no one turned up on
behalf of the appellant to the Appeal, the
1 All. In Re- Procedure To Be Followed In Hearing Of Criminal Appeals Vs. State of U.P.
821
Court issued non-bailable warrant as well
as other directions as aforesaid. In
pursuance of the non-bailable warrant
issued, the appellant was arrested again and
sent to jail. The Court recalled its earlier
order and directed release of the appellant
forthwith.

15. In Kundan Lal Criminal Appeal
No.2277 of 2008, the counsel for the
appellant was present in Court, but he
informed this Court that he had no contact
with the appellant, and therefore, was not in
a position to argue the case. The Court
hence issued non-bailable warrant against
the appellant. A supplementary affidavit
was filed on the next date fixed, bringing
on record the fact that the Criminal Appeal
had been filed under Section 449 Cr.P.C.
for quashing the order passed by the Trial
Court by which recovery had been issued
against the appellants who were only
sureties of the accused. The accused had
surrendered before the Trial Court and for
getting bail had submitted fresh sureties of
other persons.

16. In Rajoo Alias Ramakant Vs. State
of Madhya Pradesh 1, the Supreme Court
was hearing the Appeal of a person whose
Appeal had been dismissed by the High
Court. The Supreme Court place reliance
upon observations made by it in Sukdas Vs.
Union Territory of Arunachal Pradesh,
1986 (2) SCC 401, where the Supreme
Court had reiterated the requirement of
providing
free
and
adequate
legal
representation to an indigent person and a
person accused of an offence. An accused
need not ask for legal assistance - the
Court while dealing with the cases of Life
imprisonment must inform him or her of
the entitlement to free legal aid. A person
accused of an offence which may involve
jeopardy to his life or personal liberty is
entitled to free legal assistance at State
expense. However, certain exceptions were
carved out like in cases involving economic
offences or offences against the law
prohibiting prostitution, or child abuse and
the like, where social justice may require
that free legal services need not be
provided by the State. It was also observed
that neither the Constitution nor the Legal
Services
Authorities
Act,
make
any
distinction between a trial and an Appeal
for the purposes of providing free legal aid
to an accused or a person in custody.

17. Sri Nadeem Murtaza has also
relied upon Raghuvansh Dewan Chand
Bhasin Vs. State of Maharashtra and others
2. It was argued by the Appellant that since
neither Section 70, nor Section 71 of the
Cr.P.C. uses the expression non-bailable, a
Magistrate is not authorized to issue nonbailable warrant of arrest, even when an
accused fails to appear in Court. The
Supreme Court negatived the contention.

18. Relying upon
Inder
Mohan
Goswami Vs. State of Uttaranchal 3, it was
cautioned that before issuing non bailable
warrants, the Court should strike a balance
between society's interest and personal
liberty
and
exercise
its
discretion
cautiously. Referring to paragraph 53 of the
judgement in Inder Mohan Goswami, the
Court stated the circumstances when nonbailable warrant could be issued, for
example when the Court was convinced
that summons or bailable warrant would be
unlikely to have the desired effect, that the
person will not voluntarily appear in Court.
That the Police authorities were unable to
find a person.

19. In Dhananjay Rai Alias Guddu Rai
Vs. State of Bihar 4, the Supreme Court
was dealing with a case of dismissal of an
822 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant-convict's Appeal which was
initially admitted by the High Court for
hearing,
but
subsequently
dismissed
without adverting to its merits on the
ground that the appellant was absconding.
The Supreme Court observed that the Court
could not deviate from the settled principle
of law that once appellate Court had
refused to dismiss the Appeal summarily,
the same must be heard on merits. Sections
385 and 386 Cr.P.C. do not envisage the
dismissal of the Appeal for default or nonprosecution, but only contemplate disposal
on merits after perusal of the record. The
plain language of Section 385 makes it
clear that if the appellate Court does not
consider the Appeal fit for summary
dismissal, it must call for the record and
Section 386 mandates that after the record
is received, the Appellate Court may
dispose of the Appeal after hearing the
accused or his counsel. The law clearly
expects the appellate Court to dispose of
the Appeal on merits not merely by
perusing the reasoning of the trial Court in
the judgement impugned, but by cross
checking the reasoning with the evidence
on record with a view to satisfy itself that
the reasoning and findings recorded by the
Trial Court are consistent with the material
on record. The Court referred to judgement
rendered in Bani Singh Vs. State of U.P. 11,
and Surya Baksh Singh Vs. State of U.P.
12, and K.S. Pandurang Vs. State of
Karnataka 13, and also observed that the
Court is not necessarily required to adjourn
the case if both the appellant and his lawyer
are absent. It can dispose of the Appeal
after perusing the record and judgement of
the Trial Court.

In K. Muruganandam and others
Vs. State 5, the Supreme Court observed
that the High Court cannot dismiss an
Appeal against conviction, if the accused
does not appear through counsel appointed
by him/her. The Court is obliged to proceed
with the hearing of the case only after
appointing Amicus Curiae.

20. It has been argued that Rajoo
(supra) has been quoted with approval in
Anokhi Lal Vs. State of Madhya Pradesh 7,
where referring to Article 39A, the
Supreme Court observed that it provides
for
free
legal
aid
to
ensure
that
opportunities for securing justice are not
denied to any citizen by reason of
economic or other disabilities. The Legal
Services Authorities Act 1987 has been
enacted to achieve the mandate of Article
39A. Right to free legal services is an
essential ingredient of reasonable, fair and
just procedure for a person accused of an
offence and is implicit in the right
guaranteed by Article 21. The Supreme
Court relied upon the Best Bakery case viz.
Zahira Habibullah Sheikh and another vs.
State of Gujarat 8, and judgement rendered
in Mohammad Hussain Vs. State 9; and
emphasized that the object of criminal trial
is to search for the truth, and the trial is not
a bout over technicalities and must be
conducted in such manner as will protect
the innocent and punish the guilty.

21. Sri Nadeem Murtaza has placed
reliance upon judgement rendered by a Full
Bench of the High Court of Gujarat in
Niraj Devnarayan Shukla and others Vs.
State of Gujarat 10, where considering the
difference
of
opinion
between
two
coordinate benches Regarding how a
Criminal Appeal under Section 374 Cr.P.C.
filed by a convict who is absconding at the
time of final hearing has to be dealt with.

22. After answering the question, the
Larger Bench also elaborated the procedure
to be adopted by the High Court while
dealing with a conviction Appeal, at final
1 All. In Re- Procedure To Be Followed In Hearing Of Criminal Appeals Vs. State of U.P.
823
hearing stage, when the Advocate and/or
convict is not available to assist the Court.

The Larger Bench referred to the
judgement rendered in Bani Singh Vs. State
of Uttar Pradesh 11, and Surya Baksh
Singh
Vs.
State
of
U.P.
12,
K.S.
Panduranga Vs. State of Karnataka 13 and
Dilip S Dahanukar Vs.