# Smt. Tara Devi and another v. State of U.P

- **Citation:** (2011) 3 ILRA 1016
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-09-14
- **Case number:** Criminal Appeal No.109 of 2011
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-tara-devi-and-another-v-state-of-u-p-42022
- **Pages:** 14

## Headnote

Code of Criminal Procedure-Section-389grant of interim bail during pendency of
final consideration of Bail Applicationpending
Criminal
Appeal-heldinappropriate cases-even after addition
of proviso-which is for final relief of BailAppellate court can grant interim Bail to
a convicted accused-No embargo or
fetters on its power.

Held: Para 32 and 33

In view of the above discussion, right of
appellate court to consider interim bail
prayer in appropriate case, pending
consideration of final relief of bail is
preserved even after addition of proviso.
The rider provided by the proviso relates
to final relief of bail and not interim bail
prayer in appropriate cases. Reference to
3 All] Smt. Tara Devi and another V. State of U.P.
1017
sword ''bail' under it denotes final bail
and not interim bail.

Wrapping up the discussion on legal
aspect I lean in favour of appellant's
submission that pending consideration
final relief of bail u/s 389 Cr.P.C.
appellate court can grant interim bail to
a convicted accused and there is no
embargo or fetters on it's power.
Case law discussed:
2005 Cr.L.J. 755; (2009) SCC 437; (2000) 8
SCC 437; AIR 1944 PC 71; AIR 1961 SC 1596;
AIR 1959 SC 713; AIR 1955 SC 765; (1977) 4
SCC 291; (1999) 4 SCC 421; AIR 2009 SC
1669; 1991 (Suppl) ACC 67; (2009) SCC 437

## Text

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1016 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
selection
before
the
committee
so
constituted cannot be allowed to turn
round and challenge the selection on the
basis of the illegal formation of the
committee simply because he could not be
successful. In the case of Chandra
Prakash Tiwari Vs. Shakuntala Shula
reported in 2002 (6) SCC 124, the Apex
Court has held as under:

"34. There is thus no doubt that
while question of any estoppel by conduct
would not arise in the contextual facts but
the law seems to be well settled that in the
event a candidate appears at the interview
and participates therein, only because the
result of the interview is not "palatable"
to him, he cannot turn round and
subsequently contend that the process of
interview was unfair or there was some
lacuna in the process."

20. Imagine a situation if the private
respondent had been selected, he would
not have challenged the constitution of the
selection committee. Thus having taken
chance before the selection committee
without any protest about the constitution
of the committee, it was not open for him
to make a representation under Section 68
of the Act.

21. The petitioners have been
allowed to continue in service in terms of
the interim order passed by this Court and
they are still working on the post of
Lecturer/Assistant Professors on which
they were appointed, we do not find any
ground to uphold the orders passed by the
Chancellor.

22. For reasons aforesaid, the
impugned orders dated 06.01.2001 passed
by the Chancellor are set aside and the
writ petitions are allowed.

23. In case, the petitioners are
entitled to any promotion or other
consequential benefits for the period of
their service which they have rendered
that would also be considered by the
University, expeditiously.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.09.2011

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Appeal No.109 of 2011

Smt. Tara Devi and another ...Appellants
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri Arvind Srivastava

Counsel for the Respondents:
Sri Patanjali Mishra
A.G.A.

Code of Criminal Procedure-Section-389grant of interim bail during pendency of
final consideration of Bail Applicationpending
Criminal
Appeal-heldinappropriate cases-even after addition
of proviso-which is for final relief of BailAppellate court can grant interim Bail to
a convicted accused-No embargo or
fetters on its power.

Held: Para 32 and 33

In view of the above discussion, right of
appellate court to consider interim bail
prayer in appropriate case, pending
consideration of final relief of bail is
preserved even after addition of proviso.
The rider provided by the proviso relates
to final relief of bail and not interim bail
prayer in appropriate cases. Reference to
3 All] Smt. Tara Devi and another V. State of U.P.
1017
sword ''bail' under it denotes final bail
and not interim bail.

Wrapping up the discussion on legal
aspect I lean in favour of appellant's
submission that pending consideration
final relief of bail u/s 389 Cr.P.C.
appellate court can grant interim bail to
a convicted accused and there is no
embargo or fetters on it's power.
Case law discussed:
2005 Cr.L.J. 755; (2009) SCC 437; (2000) 8
SCC 437; AIR 1944 PC 71; AIR 1961 SC 1596;
AIR 1959 SC 713; AIR 1955 SC 765; (1977) 4
SCC 291; (1999) 4 SCC 421; AIR 2009 SC
1669; 1991 (Suppl) ACC 67; (2009) SCC 437

(Delivered by Hon'ble Vinod Prasad, J.)

1. Heard Sri Arvind Srivastava,
learned counsel for the appellants and
learned AGA in opposition in support and
opposition of bail prayers of the two
appellants, Smt. Tara Devi and her
husband Shivdan Gaur, who were in-laws
of the deceased Sona Devi, and who have
been convicted for offences U/Ss 306,
498A,201 I.P.C., in S.T. No. 147 of 2008,
State of U.P. versus Brajnandan and
others, by Additional Session's Judge,
Court No. 3 , Mau.

2. During course of argument the
neat question of law which has been
mooted for consideration and judicial
determination by appellant's counsel is as
to whether pending consideration of final
relief of bail U/S 389 Cr.P.C., in short
code, can an appellant be released on
short term bail inspite of newly added
proviso to the said section? Submission of
appellant's counsel is that requirement of
granting time to State counsel to file an
objection on the bail prayer of an
appellant, who has been convicted and
sentenced to ten years or more of
imprisonment is restricted only to grant of
final relief for bail and not for granting
interim bail pending consideration of final
relief of bail. According to appellant's
contention proviso attached to section 389
of the code does not curtail or abridge
power of appellant court to grant interim
bail pending consideration final relief of
bail. Considered in right prospective said
proviso cannot scuttle power of high court
to grant interim bail nor it can put an
embargo on such a power of this court to
grant interim bail to deserving appellants
submitted appellant counsel.

3. Before deliberating and dilating
on the harangued question a brief resume
of preceding facts are noted below.

4. Deceased Sona Devi, daughter of
informant Keshav Prasad Gaur, a clerk in
Life Insurance Corporation of India,
Bokaro, Jharkhand, tied her nuptial knot
with Brajnandan Prasad @ Lallan, son of
appellants, on 4.2.2001, according to
Hindu customs and rites. In the marriage
dowry was offered according to fiscal and
economic conditions by the informant but
that had not satisfied the rapacious psyche
of the bride groom, his parents and
relatives, who were further demanding
one and half lacs of rupees and a two
wheeler. None fulfilment of dowry
demand resulted in inflicting torture on
the wife Sona Devi. On 30.12.2007 at
8.45.a.m. appellant Shivdan Gaur, fatherin-law
of
Sona
Devi,
telephoned
informant and told him that she is not
keeping well. Ten minutes thereafter, one
Mohammad Ali, husband of village
Pradhan, made a second telephone call to
the informant to intimate him that his
daughter expired. Subsequently body of
Sona Devi was also cremated without
waiting for the informant. Since informant
sensed that his daughter was poisoned to
1018 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
death by her husband Brajnandan Prasad
@ Lallan, father-in-law Shivdan Gaur and
mother-in- law Smt. Tara Devi and
without waiting for him they, to conceal
their crime and obliterate evidences of
murder, had cremated corpse of the
deceased, that the informant scribed
written FIR, Ext. Ka 1 and lodged it on
2.1.2008
at
12.30
p.m.
at
PS
Mohammadabad Gohana, as Crime No.4
of 2008, U/Ss 498A, 304B, 201 IPC and
3/4 D.P. Act. vide Ext. Ka 5, the GD of
registration of crime being Ext. ka 6.

5. PW7 Ram Bhawan Chaurasia,
Circle Officer, commenced investigation
into the crime and after conducting
routine investigation and observing all the
investigatory formalities, charge sheeted
the accused for the aforesaid offences.

6. Committal Magistrate registered
the
case
against
the
accused
and
summoned them to stand trial and finding
their case triable by Session's Court
committed it to Session's Court for trial
where it was registered as S.T.No. 147 of
2008, State versus Brajnandan and others.
Additional Session's Judge, Court NO. 3
Mau, who conducted the trial found the
case of the prosecution established for
offences U/Ss 306,498A, 201 I.P.C. only
to the hilt and therefore convicted the
accused for those offences and sentenced
them to ten years R.I. with fine of
Rs.5000/-, the default sentence being 1
year further imprisonment for the first
charge, three years SI with fine of Rs.
2000/- the default sentence being six
months additional imprisonment on the
second count, and for the last offence one
year SI with fine of Rs. 1000/-, the default
sentence being additional one month
imprisonment
vide
it's
impugned
judgement and order dated 23.12.2010.
All the sentences were ordered to run
concurrently.

7. Against the said conviction and
sentence accused persons filed two
separate appeals. Present appeal is by
Smt. Tara devi and her husband Shivdan
Gaur, mother-in-law and father-in-law,
which has been admitted and now their
interim and final bail prayer is being
decided by this order. Since, during
course of argument mooted question
noted in the opening paragraph of this
order has been harangued that it is now
being decided.

8. Bail of a convicted accused and
suspension
of
his
sentence
during
pendency of appeal by that convicted
accused is governed by section 389 of the
code and consequently that section is
reproduced below:-

"389.Suspension
of
sentence
pending the appeal; release on appellant
on bail.- (1) Pending any appeal by a
convicted person, the Appellant 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 Appellant 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:
3 All] Smt. Tara Devi and another V. State of U.P.
1019

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 0.00"thereto.

(3)Where
the
convicted
person
satisfied 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."

9. From a perusal of the aforesaid
section it is evident that pending disposal
of an appeal by a convicted accused,
appellate court can suspend execution of
his sentence or order under challenge and
can release accused appellant on bail or
on his own bond. By Amending Act of
2005,
which
came
into
force
on
23.6.2006, now a proviso has been
attached to the parent section in the
following terms:

"Provided that the Appellant 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."

10. Perusal of this newly added
proviso ordains that in those appeals
where conviction of an accused is for
death
or
life
imprisonment
or
imprisonment for not less than ten years
accused appellants shall not be released
on bail or on his own bond unless public
prosecutor is afforded an opportunity to
show cause, in writing, against such
release on bail or on bond. Aforesaid
proviso further conferred power on public
prosecutor to move for cancellation of
bail granted to an accused convict. Now,
the question to be determined is as to
whether, pending consideration of final
bail, ie: during period allowed to the
public prosecutor to file written objection,
can an appellant be released on interim
bail?
1020 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

11. On the aforesaid aspect it was
submitted by appellant's counsel that
Section 389 of the Code, being a
beneficial legislation, favouring convicted
accused to get bail pending disposal of his
appeal, has to be interpreted beneficially
in tune with legislative intent as said
section anoint power on the appellate
court to release convicted appellant on
bail and suspend his sentence. Judging
from aforesaid angle, power to grant
interim bail, pending consideration of
final bail, is inherent in appellate court
and such a power cannot be curtailed or
abridged nor any fetters can be put on
court's power in that respect. Proviso
attached to the main section cannot limit
the scope of the parent section nor can
curtail it's exercise and therefore should
not be interpreted in a restricted manner
and in support of this contention learned
counsel relied upon Smt. Amarawati and
another versus State of U.P.: 2005
Cr.L.J. 755; Lal Kamlendra Pratap
Singh versus State of U.P. and others:
(2009) SCC 437; and Dadu @ Tulsi Das
versus State of Maharastra: (2000) 8
SCC 437. A court, which is conferred
with power to grant final relief can always
grant interim relief pending consideration
of final relief and appellate court cannot
be divested of such a power. Basic
principle of interpretation of Statute
countenances such a view. Like cardinal
principle under General Clauses Act that
if an authority has got a power to do a
thing it also possesses power to undo it ,
similarly power to grant final relief inhibit
power to grant interim relief. Elaborating
further it was submitted that restrictions
placed by the added proviso to section
389 of the code is limited in it's scope and
application and that too only to grant final
relief and not interim relief and it should
not be taken to be an impediment on
exercise of such a power by the appellate
court.
According
to
appellant's
submission proviso has been added in the
parent section 389 only to allay the fears
that bail to a convict can be granted
without hearing State counsel. Proviso
does not enlarge scope of parent section
nor is an independent proviso but it only
makes observance of certain procedure
mandatory in cases of grievous offences
where sentence awarded to the convicted
accused is ten years or more of
imprisonment. It was further contended
that word ''bail' used in proviso is
relatable only to ''final bail' and not
interim bail as during interim bail custody
of convicted accused continues with the
court. Next it was contended that proviso
has to be read down to harmonise it with
parent section in tune with interpretation
of Principles of Interpretation Of Statutes.
Curtailment of right to seek interim relief
of a convict pending consideration of final
relief sought by him will offend Article
21 of the Constitution Of India and
therefore cannot be approved. Concluding
his argument on legal aspect it was
submitted
that
view
expressed
in
aforementioned decisions of Amarawati
(Supra) and Lal Kamlendra Pratap
Singh
(Supra)
and
the
reasoning
expressed in those decision be adopted
and imported to bring forth appellate
court's power to grant interim bail to the
appellants in suitable appeals pending
consideration his final relief.

12. On the merits of the appeal it
was contended that there are no specific
allegations against the appellants and only
because of their relationship that they
have been convicted by the trial court.
Charge of dowry demand has been found
to be false. It was further submitted that
for offence U/S 3⁄4 D.P.Act , both the
3 All] Smt. Tara Devi and another V. State of U.P.
1021
appellants have been acquitted and
therefore charge of dowry demand fails. It
was next submitted that mother of the
deceased has testified favourably in
favour of the appellants and therefore
entire prosecution story is false and
cooked up and on this contention learned
counsel relied upon page 19 of impugned
judgement. It was further submitted that
charge for the offence U/S 304B was
found to be disproved and both the
appellants have been convicted only for
offence U/S 306 IPC and for this
submission learned counsel referred to
pages 19 and 20 of the impugned
judgement. It was next submitted that for
offence U/s 498 A IPC maximum
sentence is 3 years RI and there is no
evidence on record to convict the
appellants for the said charge nor there is
reliable evidence to hold them guilty U/S
306 IPC as there is no evidence of
abatement. It was also submitted that both
the appellant's were on bail during trial
which liberty they have not misused and
their appeal is not likely to be heard in
near future. It was also contended that
trial court itself found at pages 19/20 of
the impugned judgement that allegations
of demand of dowry is false. Learned
counsel
further
stated
that
accused
examined three defence witnesses DW1
Mohd Ali, DW2 Dr. D.R.Rai, and DW3
Brijnandan Gaur to support his defence
that deceased was being treated well and
she was accused even attempted to give
her further education through BTC course
Learned counsel relied upon pages 3 and
4 of impugned judgement to support
appellant's defence.

13. On the afore mentioned
contentions it was argued that, on the
facts of the present appeal, appellants
should be allowed to be released on bail.

14. Per contra, learned AGA
submitted that if the law enjoins filing of
written objection prior to consideration of
bail of a convict accused, then it also
enjoins grant of time while considering
interim
bail.
Learned AGA
further
submitted that if a thing is required to be
done in a particular manner then either it
should be done in that manner or not at
all. He further submitted that amendment
was brought by the legislature so that
convicts
of
death
sentence,
life
imprisonment or for a term of ten years,
or more may not be released on bail easily
without
hearing
public
prosecutor.
Learned AGA, therefore, submitted that
no interim bail should be granted to the
appellant without giving opportunity to
the State counsel to file objection. On
merits
learned
AGA,
argued
that
conviction of the appellants is sustainable
and trial court rightly held them guilty. He
supported
impugned
judgement
of
conviction and sentence by contending
that diary of the deceased indicate that she
was maltreated with disrespect. He further
submitted on the strength that mother did
not support prosecution version as she
was compelled for it to save Khedan
Prasad from conviction , who was her
relative. He further pointed out that
PW4,5,and 6 have supported prosecution
story and therefore evidence of PW3 does
not damage prosecution case and for this
he pointed out page 19.Ultimately it was
argued that bail of the appellants be
refused.

15.

I
have
considered
the
contentions raised by rival sides.

16. For deciding the legal question
debated by rival sides a glimpse of some
of the judicial precedents relating to
interpretation of Proviso attached with
1022 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
parent section seems essential. On this
aspect, it is to be noted, that normal
function of a proviso is to provide for an
exception or to qualify the parent section
with something, which but for the proviso
would be within the purview of the
enactment, had the proviso not been there.
Sometimes proviso is added to explain the
scope and ambit of parent section or to
allay fears in matter of scope and
interpretation of main body of section to
which it is attached. This aspect of the
matter has been considered in various
judicial pronouncements. In the words of
Hon. Lush J:-

"When one finds a proviso to a
section, the natural presumption is that,
but for the proviso the enacting part of the
section would have included the subjectmatter of the proviso."

17. The same view has been
expressed by Lord Macmillan J. in
Madras and Southern Maharastra Rly.
Co. Ltd. Vs. Bezwada Municipality
AIR 1944 PC 71 in the following words:-

" Proper function of a proviso is to
except and to deal with a case which
would otherwise fall within the general
language of the main enactment and its
effect is confined to that case."

18. The said aspect of the matter
came up for consideration before Hon.
Hidayatullah J, in Shah Bhojraj Kuverji
Oil Mills and Ginning Factory Vs.
Subhash Chandra Yograj Sinha: AIR
1961 SC 1596 where His Lordship has
been pleased to observe thus:-

" As general rule a proviso is added
to an enactment to qualify or create an
exception to what is in the enactment and
ordinarily, a proviso is not interpreted as
stating a general rule."

19. Hon.Kapoor,J in the decision of
CIT Mysore etc. Vs. Indo Mercantile
Bank Ltd.: AIR 1959 SC 713, decided
the said question in following words:-

" The proper function of a proviso is
that it qualifies the generality of the main
enactment by providing an exception and
taking out as it were, from the main
enactment, a portion which, but for the
proviso would fall within the main
enactment. Ordinarily it is foreign to the
proper function of proviso to read it as
providing something by way of an
addendum or dealing with a subject which
is foreign to the main enactment."

20. From above judicial verdicts
what is evident is that a proviso is not
normally construed as nullifying the main
enactment or taking away a right
conferred by it. Further, that a proviso
does not travel beyond the scope of main
provision to which it is attached. This has
so been held by the apex court in Ram
Narain
Sons
Ltd.
V.
Assistant
Commissioner of Sales Tax: AIR 1955
SC 765, where in Apex Court has held as
under :-

"
It
is
a
cardinal
rule
of
interpretation, that a proviso to a
particular provision of a statute only
embraces the field which is covered by the
main provision. It carves out an exception
to the main provision to which it has been
enacted as a proviso and to no other."

21. Now analysing ambit and scope
of the proviso attached to section 389 of
the Code, it transpires that the said
proviso relates to only to a procedure and
3 All] Smt. Tara Devi and another V. State of U.P.
1023
does not affect or curtail power of the
appellate court in matter of grant of bail.
It nowhere restricts or creates an embargo
on such a power. What it provides is only
a procedure to be observed while
considering bail of a convicted accused
sentenced with death, life imprisonment
or imprisonment for ten years or more.
Thus the legislative intent was never to
curtail power of appellate court in matters
of grant of bail but only to hear public
prosecutor. Scope of such a proviso
therefore cannot be stretched to scuttle
power of the court to grant interim bail. It
was rightly argued that a proviso may
carve out an exception but cannot curtail
limits of parent section. Further sentences
of less than ten years of imprisonment is
beyond the purview of said proviso,
where it's observance of granting time to
the public prosecutor, to file written
objection can be eschewed, albeit hearing
of public prosecutor may be strictly
adhered to. Thus the proviso has been
added as an abundant caution only,
otherwise, normally, but for certain
aberrations, no bail in appeal against
conviction is considered without hearing
public prosecutor. Mandatory character of
granting time to file written objection and
hearing public prosecutor has been
enacted only to eschew aberrations and
block loop holes of hearing State counsel
in matters of grant of bail after conviction.
It has always been the cardinal principle
of law, imbibed in principles of natural
justice, that no decision could be made
without hearing adverse party to be
affected by it.

22. Grant of bail after conviction has
been subjected to many judicial decisions
by the Apex Court where the subject has
been dealt with comprehensively. Without
being verbose and ostentatious, one of
such decision is Kashmira Singh versus
State of Punjab: (1977) 4 SCC 291 where
Apex Court has held as under :-

"Now, the practice in this Court as
also in many of the High Court has been
not to release on bail a person who has
been sentenced to life imprisonment for
an offence under S. 302 of the Indian
Penal Code. The question is whether this
practice should be departed from and if
so, in what circumstances. It is obvious
that no practice howsoever sanctified by
usage and hallowed by time can be
allowed to prevail if it operates to cause
injustice. Every practice of the Court must
find its ultimate justification in the
interest of justice. The practice not to
release on bail a person who has been
sentenced to life imprisonment was
evolved in the High Courts and in this
Court on the basis that once a person has
been found guilty and sentenced to life
imprisonment, he should not be let loose,
so long as his conviction and sentence are
not set aside, but the underlying postulate
of this practice was that the appeal of
such person would be disposed of within a
measurable distance of time, so that if he
is ultimately found to be innocent, he
would not have to remain in jail for an
unduly long period. The rationale of this
practice can have no application where
the Court is not in a position to dispose of
the appeal for five or six years. It would
indeed be a travesty of justice to keep a
person in jail for a period of five or six
years for an offence which is ultimately
found not to have been committed by him.
Can the Court ever compensate him for
his incarceration which is found to be
unjustified? Would it be just at all for the
Court to tell a person : 'We have admitted
your appeal because we think you have a
prima facie case, but unfortunately we
1024 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
have no time to hear your appeal for quite
a few years and, therefore, until we hear
your appeal, you must remain in jail, even
though you may be innocent?' What
confidence would such administration of
justice inspire in the mind of the public? It
may quite conceivably happen, and it has
in fact happened in a few cases in this
Court, that a person may serve out his full
term of imprisonment before his appeal is
taken up for hearing. Would a Judge not
to be overwhelmed with a feeling of
contrition while acquitting such a person
after hearing the appeal? Would it not be
an affront to his sense of justice? Of what
avail would the acquittal be to such a
person who has already served out his
term of imprisonment or at any rate a
major part of it? It is, therefore,
absolutely essential that the practice
which this Court has been following in the
past must be reconsidered and so long as
this Court is not in a position to hear the
appeal of an accused within a reasonable
period
of
time,
the
Court
should
ordinarily
unless
there
are
cogent
grounds for acting otherwise, release the
accused on bail in cases where special
leave has been granted to the accused to
appeal
against
his
conviction
and
sentence."

23. In Bhagwan Rama Shinde
Gosai v. State of Gujarat (1999) 4 SCC
421 it has been held by the apex court as
under :-

"3. When a convicted person is
sentenced to a fixed period of sentence
and when he files an appeal under any
statutory right, suspension of sentence
can be considered by the appellate Court
liberally unless there are exceptional
circumstances. Of course if there is any
statutory restriction against suspension of
sentence it is a different matter. Similarly,
when the sentence is life imprisonment the
consideration for suspension of sentence
could be of a different approach. But if
for any reason the sentence of a limited
duration cannot be suspended every
endeavour should be made to dispose of
the appeal on merits more so when a
motion for expeditious hearing of the
appeal is made in such cases. Otherwise
the very valuable right of appeal would be
an exercise in futility by efflux of time.
When the appellate Court finds that due
to practical reasons such appeals cannot
be disposed of expeditiously the appellate
Court must bestow special concern in the
matter of suspending the sentence. So as
to make the appeal right, meaningful and
effective. Of course appellate Courts can
impose similar conditions when bail is
granted."

24. The above quoted two views
have been affirmed by the apex court in
one it's recent decisions in Angana and
others versus State of Rajasthan: AIR
2009 SC 1669.

25. Above referred to decisions of
the apex court indicate the guide line to be
followed while considering bail of a
convicted accused. Any curtailment of
right of accused to be released on bail
therefore has to be judged from a
pragmatic angle looking to the nature of
allegations and evidences brought forth to
establish the same. Apex court has
declared curtailment of right of accused to
get bail by statutory enactment ultra vires.
In Dadu @ Tulsi Das (Supra) it has been
held by the apex court as under :-

"17. Not providing at least one right
of appeal, would negate the due process
of law in the matter of dispensation of
3 All] Smt. Tara Devi and another V. State of U.P.
1025
criminal justice. There is no doubt that
the right of appeal is the creature of a
statute and when conferred, a substantive
right. Providing a right of appeal but
totally disarming the Court from granting
interim relief in the form of suspension of
sentence would be unjust, unfair and
violative of Art. 21 of the Constitution
particularly when no mechanism is
provided for early disposal of the appeal.
The pendency of criminal litigation and
the experience in dealing with pending
matters indicate no possibility of early
hearing of the appeal and its disposal on
merits at least in many High Courts. As
the present is not the occasion to dilate on
the causes for such delay, we restrain
ourselves from that exercise. In this view
of the matter, the appellate powers of the
Court cannot be denuded by Executive or
judicial process.

............................................................

24. In Ram Charan v. Union of
India, 1991 (9) LCD 160, the Allahabad
High Court while dealing with the
question of the constitutional validity of
Section 32A found that as the Section
leaves no discretion to the Court in the
matter of deciding, as to whether, after
conviction the sentence deserves to be
suspended or not without providing any
guidelines regarding the early disposal of
the appeal within a specified period, it
suffers from arbitrariness and thus
violative of mandate of Articles 14 and 21
of the Constitution. In the absence of right
of suspending a sentence, the right of
appeal conferred upon accused was
termed to be a right of infructuous appeal.
However,
Gujarat
High
Court
in
Ishwarsingh M. Rajput v. State of
Gujarat, (1990) 2 Guj LR 1365 : 1991 (2)
Crimes 160, while dealing with the case
relating to grant of parole to a convict
under the Act found that Section 32-A was
Constitutionally valid. It was held :

"Further, the classification between
the
prisoners
convicted
under
the
Narcotics Act and the prisoners convicted
under any other law, including the Indian
Penal Code is reasonable one, it is with
specific object to curb deterrently habit
forming, booming and paying (beyond
imagination) nefarious illegal activity in
drug trafficking. Prisoners convicted
under the Narcotics Act are class by
themselves. Their activities affect the
entire society and may, in some cases, be
a death-blow to the persons, who become
addicts. It is much more paying as it
brings unimaginable easy riches. In this
view of the matter, the temptation to the
prisoner is too great to resist himself from
indulging in same type of activity during
the period, when he is temporarily
released. In most of the cases, it would be
difficult for him to leave that activity as it
would not be easy for the prisoner to
come out of the clutches of the gang,
which operates in nefarious illegal
activities. Hence, it cannot be said that
Section 32-A violates Article 14 of the
Constitution on the ground that it makes
unreasonable
distinction
between
a
prisioner convicted under the Narcotics
Act and a prisoner convicted for any
other offences.

25. Judged from any angle the
Section insofar as it completely debars the
appellate Courts from the power to
suspend the sentence awarded to a
convict under the Act cannot stand the
test of constitutionality. Thus Section 32-A
insofar as it ousts the jurisdiction of the
Court to suspend the sentence awarded to
a
convict
under
the
Act
is
1026 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
unconstitutional. We are, therefore, of the
opinion that Allahabad High Court in
Ram Charan's case (supra) has correctly
interpreted the law relating to the
constitutional validity of the Section and
the judgment of Gujarat High Court in
Ishwarsingh M. Rajput's case cannot be
held to be good law."

26. In my humble view the above
decision by the apex court gives an
answer to the question harangued by
appellant's counsel. Divesting appellate
court of it's power to grant interim relief
pending consideration of final relief
cannot be countenanced as it will be ultra
vires to the constitution. No view
curtailing power of the appellate court to
grant interim relief can be upheld
affecting right of an accused to seek such
a remedy, albeit whether to grant such
interim bail or refuse it will depend on the
facts and circumstances of each case. It is
always desirable to evolve a device which
preserves powers of the courts as against
shedding of it. This view finds support
from a decision of this court in Ram
Charan Versus Union Of India: 1991 (
Suppl) ACC 67, where this court has
struck down section 32-A of NDPS Act as
it had taken away right to grant interim
relief from this court. Aforesaid section
(32-A) was held to offend Article 14 and
21 of the Constitution Of India. It was
held therein as under :-

"We are of the view that there existed
no rational or reasonable basis to deny
the right of a person to claim suspension,
commutation or remission of sentence or
to be released on bail if the Court passes
such an order, even after conviction while
his appeal against the conviction has been
pending or otherwise provided under law
for the time being in force."

27. Adopting and applying above
reasoning it is not difficult to hold that
any attempt by legislature to curtail power
of the courts to grant interim relief
although it were anointed with the power
to grant final relief has to be abhorred and
must be struck down. Thus I find great
force in appellant's contention that interim
relief of bail can be granted pending
consideration final relief of bail, U/S 389
of the code, to a convict accused
appellant.

28. Judging from another angle,
section 389 of the code relates to grant of
bail pending appeal by a convict whereas
sections 436 to 439 of chapter XXXIII of
the code relates with grant of bail pending
investigation and trial. There is not much
of a difference between guidelines to be
adopted by the courts on both the
occasions to grant or refuse bail in
offences punishable with imprisonment
for life and therefore considerations to be
kept in mind, on most of the aspects, are
common. For a ready reference it is noted
here that U/S 439 Cr.P.C. high court or
court of session's has to give opportunity
to public prosecutor before granting bail
to an accused in all cases which are triable
by court of Session's or which are
punishable with imprisonment for life.
Proviso attached with section 439 of the
code is reproduced below:-

"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
3 All] Smt. Tara Devi and another V. State of U.P.
1027
opinion that it is not practicable to give
such notice."

29. Perusal of above proviso
makes it evident that in all cases which
are triable by session's court or where
punishment
is
life
imprisonment,
hearing of public prosecutor is sine qua
non before granting bail to an accused.
Most of the offences, where punishment
is for life or ten years or upward of
imprisonment are triable by session's
court, which is well perceivable from
The First Schedule attached with the
code and therefore parameters to grant
bail
at
both
the
occasions-
pre
conviction and post-conviction, does not
have different scales in procedures to be
observed in matter of bail applications.
Otherwise
also
General
Rules
(Criminal), applicable to lower courts
and High Court Rules, applicable to
high court, both provide for giving of
notice of the bail application to the
public
prosecutor
and
as
a
well
ingrained practise hearing of public
prosecutor in matter of consideration of
bail applications has become the rule of
law. Consequently the law relating to
the procedure to be followed in matters
of consideration of bail applications
prior to conviction holds good for postconviction bail applications also. In this
respect a full bench of our court in
Smt.Amarawati's case(Supra) has held
that interim bail pending consideration
of final bail is permissible. It has been
held therein as under-

"40. We again make it clear that
the learned Sessions Judge in his
discretion can hear and decide the bail
application under Section 439 on the
same day of its filing provided notice is
given to the Public Prosecutor, or he
may not choose to do so. This is entirely
a matter in the discretion of the learned
Sessions Judge. There may also be cases
where the learned Sessions Judge on the
material available before him may
decide to grant interim bail as he may
feel that while he has sufficient material
for giving interim bail he required
further material for grant of final bail.
In such cases also he can in his
discretion, grant interim bail and he can
hear the bail application finally after a
few days. All these are matters which
should
ordinarily
be
left
to
his
discretion."

30. The aforesaid opinion by this
court got it's approval by the apex court
in Lal kamlendra Pratap Singh versus
State of Uttar Pradesh And Others:
(2009) SCC 437 wherein it has been
held by the apex court as under:-

"Learned counsel for the appellant
apprehends that the appellant will be
arrested as there is no provision for
anticipatory bail in the State of U.P. He
placed reliance on a decision of the
Allahabad High Court in Amarawati v.
State of U.P. in which a seven-Judge
Full Bench of the Allahabad High Court
held that the court, if it deems fit in the
facts and circumstances of the case,
may grant interim bail pending final
disposal of the bail application. The
Full Bench also observed that arrest is
not a must whenever an FIR of a
cognizable offence is lodged. The Full
Bench placed reliance on the decision of
this Court in Joginder Kumar v. State of
U.P.

We fully agree with the view of the
High Court in Amarawati case and we
direct that the said decision be followed
1028 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
by all courts in U.P. in letter and spirit,
particularly since the provision for
anticipatory bail does not exist in U.P.