# Surednra Prasad Misra & Anr v. State of U.P. & Ors

- **Citation:** (2024) 3 ILRA 1296
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-12
- **Case number:** J. Criminal Appeal No. 465 of 1999
- **Bench:** Rajan Roy, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/surednra-prasad-misra-anr-v-state-of-u-p-ors-51570
- **Pages:** 19

## Headnote

(A) Criminal Law - Jurisdiction of High
Court in issuing non-bailable warrants in
appeals - role and discretionary powers of
Magistrates in handling bail for accused
persons in such cases - Indian Penal Code,
1860 - Section 302 r.w. 34, 82/83 ,
Section 390 - Arrest of accused in appeal
from acquittal - The Allahabad High
Court Rules, 1952 - Chapter V Rule 6 -
Reference to a larger Bench.

(B) Words or Phrases -Interpretation of
"non-bailable
warrant"
in
appellate
jurisdiction and "discretionary power of
magistrates"
for
bail
in
appeal
proceedings. (Paras 24-34)

Appellants were convicted under Section 302
IPC
for
murder
and
sentenced
to
life
imprisonment - initially granted bail but were
later directed to be taken into custody when
they failed to appear before High Court for the
appeal hearing - issues related to - issuance
and execution of non-bailable warrants in
criminal
appeals,
especially
concerning
appellants who have previously been acquitted
or convicted - Jurisdiction of Magistrates in
Matters of Bail Post-Issuance of Non-Bailable
Warrants by Higher Courts - warrants are issued
at a later stage of the appeal rather than at
admission - use of Amicus Curiae when
appellants fail to appear. (Paras - 1 to 3 ,18 to
62)

HELD: - High Court referred to crucial
procedural
issues
regarding
issuance
and
execution
of
non-bailable
warrants
and
discretionary bail powers in appeals to a Larger
Bench to establish a consistent approach across
similar cases. (Paras 58-62)

Matter referred for consideration by a
Larger Bench. (E-7)

LIST
OF
CASES
CITED:
-
3 All. Surednra Prasad Misra & Anr. Vs. State of U.P. & Ors.
1297

## Text

_Characters 0–39,477 of 63,871. This is a partial read: ask again with offset=39477 for what follows._

1296 INDIAN LAW REPORTS ALLAHABAD SERIES
on record with regard to guilt of accused
and to that extent conclusion drawn by the
trial Court suffers with patent infirmity and
perversity and, therefore, liable to be
reversed and set aside.

42. Thus in view of above, after
analysis of circumstances of present case in
the
light
of
aforesaid
settled
legal
principles, I come to the conclusion that the
trial court has erred passing the impugned
judgment and order, therefore, this appeal
succeeds and is allowed. The judgment and
order dated 26.04.2000 passed by learned
Second
Additional
Sessions
Judge,
Lucknow in Sessions Trial No.192 of 1995,
convicting and sentencing the appellant
under Section 436 I.P.C. for three years
rigorous imprisonment, is set aside and
reversed.
The
appellant,
namely,
Mohd.Nabi @ Munna is acquitted of
charge under Section 436 I.P.C. His
personal bond and surety bonds are
canceled and sureties are discharged.

43. Let record of Trial Court be sent
back to the Court concerned along with
copy
of
judgment
and
order
for
information.
----------
(2024) 3 ILRA 1296
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.03.2024

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE NARENDRA KUMAR JOHARI,
J.

Criminal Appeal No. 465 of 1999

Surednra Prasad Misra & Anr.
 ...Appellants
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Appellants:
Arun Sinha, Anurag Singh Chauhan

Counsel for the Respondents:
G.A., Abhinandan Kumar Pandey

(A) Criminal Law - Jurisdiction of High
Court in issuing non-bailable warrants in
appeals - role and discretionary powers of
Magistrates in handling bail for accused
persons in such cases - Indian Penal Code,
1860 - Section 302 r.w. 34, 82/83 ,
Section 390 - Arrest of accused in appeal
from acquittal - The Allahabad High
Court Rules, 1952 - Chapter V Rule 6 -
Reference to a larger Bench.

(B) Words or Phrases -Interpretation of
"non-bailable
warrant"
in
appellate
jurisdiction and "discretionary power of
magistrates"
for
bail
in
appeal
proceedings. (Paras 24-34)

Appellants were convicted under Section 302
IPC
for
murder
and
sentenced
to
life
imprisonment - initially granted bail but were
later directed to be taken into custody when
they failed to appear before High Court for the
appeal hearing - issues related to - issuance
and execution of non-bailable warrants in
criminal
appeals,
especially
concerning
appellants who have previously been acquitted
or convicted - Jurisdiction of Magistrates in
Matters of Bail Post-Issuance of Non-Bailable
Warrants by Higher Courts - warrants are issued
at a later stage of the appeal rather than at
admission - use of Amicus Curiae when
appellants fail to appear. (Paras - 1 to 3 ,18 to
62)

HELD: - High Court referred to crucial
procedural
issues
regarding
issuance
and
execution
of
non-bailable
warrants
and
discretionary bail powers in appeals to a Larger
Bench to establish a consistent approach across
similar cases. (Paras 58-62)

Matter referred for consideration by a
Larger Bench. (E-7)

LIST
OF
CASES
CITED:
-
3 All. Surednra Prasad Misra & Anr. Vs. State of U.P. & Ors.
1297
1. St. of U.P. Vs Geeta Devi & anr , Govt. Appeal
No. 454 of 2022

2. St. of U.P. Vs Shamshuddin Khan & ors.,
Govt. Appeal No. 2552 of 1981

3. St. of U.P. Vs Poosu & anr., (1976) 3 SCC 1

4. Empress of India Vs Mangu, ILR (1879) 2 All
340

5. Bana Vs Methuen; 2 Bens 228

6. Balkrishna Mahadev Lad Vs St. of Maha.,
2012 SCC OnLine Bom 1490

7. Farooq Abdul Gani Surve Vs The St. of Maha.,
2012 ALL MR (CRI) 271

8. Amin Khan Vs St. of Raj. & ors., (2009) 3 SCC
776

9. Krishna Kumar & ors. Vs St. of U.P. Crl.
Appeal No. 3757 of 2023

10. Bani Singh & ors. Vs St. of U.P.; (1996) 4
SCC 720

11. K.S. Panduranga Vs St. of Karn., (2013) 3
SCC 721

12. Surya Baksha Singh Vs St. of U.P. (2014) 14
SCC 222

(Delivered by Hon'ble Rajan Roy, J.)

(Crl. Misc. Application No. 5 of 2023 -
Second Bail Application)

1. Heard Mr. Anurag Singh Chauhan,
learned counsel for the appellant no. 2 -
Bablu alias Alok Kumar and learned AGA
on the second bail application.

2. This Criminal Appeal arises out of
the judgment and order dated 09.08.1999
passed by the Special Judge (SC/ST),
Sultanpur in 97 of 1995 (State vs. Surendra
Prasad and another) arising out of case
Crime No. 8 of 1995, under Section 302
IPC,
Police
Station
Amethi,
District
Sultanpur whereby the appellants have
been convicted and sentenced to undergo
life imprisonment under Section 302 read
with 34 IPC.

3. Appellants - Surendra Prasad Misra
and Bablu alias Alok Kumar were
convicted as aforesaid vide judgment of the
Court below dated 09.08.1999, but, were
ordered to be enlarged on bail by this Court
vide
orders
dated
09.07.1999
and
22.05.2000 passed in this appeal. When the
matter came up before the Court on
06.05.2022
none
appeared
for
the
appellants,
accordingly
Chief
Judicial
Magistrate, Sultanpur was directed to issue
non-bailable warrant against the appellants
and also that they shall be taken into
custody and sent to jail. The said order
reads as under:

"The instant application has been
filed by the victim of the present case, who
is son of the deceased for early disposal of
the present appeal.

Ms. Smiti Sahai, learned A.G.A.
is present.

Learned A.G.A. states that both
the appellants are on bail.

It transpires from the office
report dated 1.10.2021 that both the
appellants are alive and to this effect, Chief
Judicial Magistrate, Sultanpur has sent
compliance report dated 17.9.2021.

None appears on behalf of the
appellants to argue the instant appeal.

Chief
Judicial
Magistrate,
Sultanpur is directed to issue Non-bailable
Warrants against the appellants nos.1 and
2 namely Surendra Prasad Mishra and
Bablu @ Alok Kumar. The appellants shall
be taken into custody and sent to jail. Chief
Judicial Magistrate shall submit his report
before this court on or before 4.7.2022.
1298 INDIAN LAW REPORTS ALLAHABAD SERIES

It further transpires from the
order sheet that the office was directed to
prepare the paper book but the same has
not yet been prepared.

Office is directed to prepare the
paper book by the next date.

List this appeal for final hearing
on 4.7.2022.

Since the appeal is listed for final
hearing on 4.7.2022, as such the instant
application bearing Crl. Misc. Application
No.IA/2/ 2022 stands disposed."

In
pursuance
thereof
both
the
appellants were arrested and are in jail.
Appellants were arrested on 25.06.2022, as
informed by the counsel for the appellant
no. 2. Appellants filed an application
bearing No. IA/3/2022 for release on bail
but the same was rejected on 01.08.2022 in
the following terms:

"This is the first bail application
moved on behalf of the appellants.

It transpires from the record that
the appellants were on bail and this Court
vide order dated 06.05.2022 issued nonbailable warrants against the appellants
and directed the matter to be listed today
for final hearing. Thereafter, the appellants
were arrested by the police on 25.06.2022.

In pursuance of order dated
06.05.2022, the matter is listed today for
final hearing.

Heard Shri Siddhartha Sinha,
Advocate holding brief of Shri Arun Sinha,
learned counsel for the appellants, Shri
Vishwas Shukla, learned AGA for Staterespondent, Abhinandan Kumar Pandey,
learned counsel for the complainant and
perused the material brought on record.

Learned
counsel
for
the
appellants stated that he has not obtained
the paper book and further stated the
appellants are in jail since 25.06.2022. He
further submitted that appellants have no
criminal history, hence are entitled to be
released on bail.

When the learned counsel for the
appellants was asked to argue the appeal
finally, he showed his reluctance and stated
that the instant bail application filed on
behalf of the appellants be heard and
decided.

After hearing the submissions
advanced by learned counsel for the parties
and taking into account the fact that the
appeal is listed today for final hearing;
paper book is ready and the appeal is of the
year 1999 and the learned counsel for
appellants has showed his reluctance in not
arguing the appeal finally, we find that no
good ground is made out for enlarging the
appellants on bail.

The bail application of the
appellants- Surendra Prasad Mishra and
Bablu alias Alok Kumar involved in S.T.
No. 97 of 1995 under sections 302 I.P.C.,
police station Amethi, District Sultanpur is,
accordingly, rejected.

List the matter in the next cause
list peremptorily before appropriate Bench
for final hearing. "

4. This second application for bail has
been filed by appellant no. 2 - Bablu alias
Alok Kumar alone on 05.09.2023.

5. Submission of the counsel for the
appellant no. 2/applicant's counsel was that
he was on bail earlier, therefore, he be
enlarged on bail.

6. As regards the second bail
application of the appellant no. 2 we find
that his earlier bail application which was
filed after his incarceration consequent to
issuance of non-bailable warrant was
rejected on the ground that the counsel was
not ready to argue the matter. Today, the
3 All. Surednra Prasad Misra & Anr. Vs. State of U.P. & Ors.
1299
situation is that none has appeared on
behalf of the appellant no. 1 though counsel
for appellant no. 2 is present. Paper book is
ready and the counsel for the appellant no.
2 is ready for hearing, however, counsel for
the appellant no. 1 is not present.

7. Let a report be requisitioned from
the Superintendent of Jail where the
appellant no. 1 is lodged as to whether he
wants to engage another counsel to argue
his appeal or wants that the Court may
appoint an Amicus in the matter so that his
appeal be argued. District Legal Services
Authority be also informed about it.

8. As learned counsel for the
appellant no. 2 is ready to argue the appeal,
but, none is present for appellant no. 1 who
is in jail and we have requisitioned a
response in this regard as aforesaid which
could take time and, as, we propose to refer
certain legal issues for consideration by
Larger Bench which may take some time to
be answered and as appellant no. 2 was on
bail earlier and his counsel assures us that
he will argue the appeal whenever listed,
we are of the opinion that he is entitled to
be enlarged on bail.

9. Let appellant no. 2, Bablu alias
Alok Kumar be released on bail on his
furnishing a personal bond and two sureties
each in the like amount to the satisfaction
of the Chief Judicial Magistrate concerned.

10. As soon as personal bonds and
sureties are furnished, photocopies of the
same shall be transmitted to this Court
forthwith by the Trial Court concerned to
be kept on record of this appeal.

11. It is made clear that during bail,
the applicant-accused shall not indulge
himself in any criminal activity. If he is
found indulging himself in any criminal
activity, the prosecution will be at liberty to
file an application for cancellation of bail

12. The second bail application is
disposed of.

13. While hearing the bail application
and reserving the orders, we noticed an
order passed by a Coordinate Bench of this
High Court at Allahabad on 18.01.2024 in
Government Appeal No. 454 of 2022
(State of U.P. Vs. Geeta Devi and Anr).
Noticing the same, we had passed the
following order:

"Heard
Mr.
Anurag
Singh
Chauhan, learned counsel for the appellant
no. 2 - Bablu alias Alok Kumar and learned
AGA on the second bail application.

During
course
of
argument,
learned counsel for the appellant as also
learned AGA once again referred to the
order passed by a Coordinate Bench of this
Court at Allahabad on 18.01.2024 in
Government Appeal No. 454 of 2022
wherein certain directions have been issued
empowering the Chief Judicial Magistrate
to release a person on bail where nonbailable warrant has been issued against
him whether it be in appeal against
acquittal or conviction, by the High Court,
which
according
to
them
requires
reconsideration by a Larger Bench. They
also referred to another order dated
19.01.2024 passed in Government Appeal
No.
2552
of
1981
issuing
similar
directions/order relying upon the order
dated 18.01.2024. They have relied upon
Full Bench decision of the Bombay High
Court in the case of Balkrishna Mahadev
Lad vs. State of Maharashtra; 2012 SCC
OnLine Bom 1490, Constitution Bench
decision of Hon'ble the Supreme Court in
the case of State of U.P. vs. Poosu and
1300 INDIAN LAW REPORTS ALLAHABAD SERIES
Another; (1976) 3 SCC 1 and subsequent
decision of Hon'ble the Supreme Court in
Amin Khan vs. State of Rajasthan and
others; (2009) 3 SCC 776.

We
have
heard
the
bail
application as also on the aforesaid
questions.

We reserve our orders on both
the issues."

14. We have perused the order dated
18.01.2024 passed by the Coordinate
Bench in the aforesaid appeal. We find that
there are certain observations/directions in
the said order as also in the subsequent
order dated 19.01.2024 passed by the
Coordinate Bench in Government Appeal
No. 2552 of 1981 (State of U.P. vs.
Shamshuddin Khan and others) which
require consideration by a Larger Bench as
they have far reaching consequences on
issues which arise while hearing criminal
appeals, and also with regard to jurisdiction
of Magistrate in the execution of nonbailable warrants issued by the High Court
in such appeals, therefore, we proceed to
consider the matter from the said stand
point.

15. On a perusal of the orders passed
by the Coordinate Bench on 18.01.2024
and 19.01.2024 as referred hereinabove, we
find that the Coordinate Bench proceeded
on the premise that in appeals arising from
acquittal warrants are issued in such
appeals to secure presence of the acquitted
person and that enlargement of such
persons who have been acquitted by the
Trial Court, in an appeal against their
acquittal, is a matter of right. In this
context, it has referred to a Full Bench
decision of the Bombay High Court though
it has not mentioned the cause title and has
observed that the said Full Bench while
interpreting the provisions of Section 390
of the Code of Criminal Procedure Code,
1973 (hereinafter referred to as 'Code of
1973') has held that the very purpose of this
Section was to ensure presence of an
accused before the Court and based on this
the Coordinate Bench has issued certain
directions. The directions issued by the
Coordinate Bench are not only with respect
to non-bailable warrants issued by the High
Court in appeals against acquittal but also
in respect of appeals against conviction.
The order dated 18.01.2024 reads 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
3 All. Surednra Prasad Misra & Anr. Vs. State of U.P. & Ors.
1301
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."

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 UP 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
1302 INDIAN LAW REPORTS ALLAHABAD SERIES
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. "

16. Similar observations/directions
have been made in its order dated
19.01.2024 passed in Government Appeal
No. 2552 of 1981 relying upon the earlier
decision dated 18.01.2024. The said order
dated 19.01.2024 read 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
3 All. Surednra Prasad Misra & Anr. Vs. State of U.P. & Ors.
1303
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. "

17. As already stated the said orders
raise
important
issues
pertaining
to
procedure to be followed by the High Court
hearing criminal appeals, process/warrants
to be issued by it, its execution and
jurisdiction of Chief Judicial Magistrate in
this regard and, as, there should be
reasonable degree of definiteness and
certitude in this regard not only in the mind
of Judges of the High Court exercising such
jurisdiction but also the Magistrates and as
general directions have been issued by the
Coordinate Bench to the Chief Judicial
Magistrates throughout the State of Uttar
Pradesh with penal consequences in the
event of non compliance and also to
Judicial Training and Research Institute,
therefore, it has become necessary that
legal
issues
in
this
regard
be
clarified/settled by a Larger Bench.

Appeal Against Acquittal

18. First and foremost, we may point
out that in an appeal by the State under
Section 378 of the Code of 1973 against
acquittal of the accused, Section 390 of the
Code of 1973 is attracted which reads as
under:

"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."

19. Prior to coming into force of the
Code of 1973, the Criminal Procedure
Code, 1898 (hereinafter referred as 'Code
of 1898') was in operation and in the said
Code of 1898 also a pari materia provisions
existed in the form of Section 427 which
read as under:

"427.
When
an
appeal
is
presented under Section 417, 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."

20. The aforesaid Section 427 of the
Code of 1898 and Section 390 of the Code
of 1973 came up for consideration before a
Constitution Bench of Hon'ble the Supreme
Court in the case of State of U.P. vs. Poosu
and Another; (1976) 3 SCC 1. The
question referred to the Constitution Bench
was: "Whether the Supreme Court while
granting special leave to appeal under
Article 136 of the Constitution, against an
order of acquittal on a capital charge, has
the power to issue a non-bailable warrant
for the arrest and committal to prison of
the accused respondent who had been
acquitted by the High Court?

21. Hon'ble the Supreme Court had
the occasion to consider the historical
1304 INDIAN LAW REPORTS ALLAHABAD SERIES
perspective of the aforesaid provisions and
it observed that such provision was enacted
for the first time in the Code of 1882, but
even before its enactment, the High Court
as a matter of judicial practice, had the
power, pending the appeal against an order
of acquittal, to secure the attendance of the
accused respondent by bailable or nonbailable warrants. It referred to a Full
Bench decision of the Allahabad High
Court in the case of Empress of India vs.
Mangu; ILR (1879) 2 All 340 wherein it
was held that the High Court has the power
to cause the arrest and detention of the
accused in prison, pending an appeal
against an order of acquittal. It referred to
various other decisions which were to the
same effect. It observed that this power was
ancillary to and necessary for an effective
exercise of its jurisdiction in an appeal
against an order of acquittal conferred on
the High Court by the Code. It referred to
an English case i.e. Bana Vs. Methuen; 2
Bens 228 decided way-back in 1824
wherein Best, J. following an older
precedent, enunciated the rule that - "when
an act of Parliament gives a justice
jurisdiction over an offence, it impliedly
gives him a power to make out a warrant,
and bring before him any person charged
with
such
offence".
Hon'ble
the
Constitution Bench has observed that this
was the rationale of Section 427 of the
Code of 1898.

22. It further observed that as soon as
the High Court on perusing a petition of
appeal against an order of acquittal,
considers that there is sufficient ground for
interfering and issuing process to the
respondent, his status as an accused person
and the proceedings against him, revive.
The question of judging his guilt or
innocence in respect of the charge against
him, once more becomes sub judice. It then
went on to observe that Article 136 of the
Constitution of India confers on the
Supreme Court the same power which was
vested in the High Court under Section 427
of the Code of 1898 corresponding to the
existing Section 390 of the Code of 1973. It
then considered the question as to whether
in the circumstances of the case, the
attendance of the accused respondent can
be best secured by issuing a bailable
warrant or non-bailable warrant and it held
that it is a matter which rests entirely in the
discretion of the Court. It observed as
under:

"Whether in the circumstances of
the case the attendance of the accused
respondent can be best secured by issuing a
bailable warrant or non-bailable warrant
is a matter which rests entirely in the
discretion of the Court. Although, the
discretion is exercised judicially, it is not
possible to computerise and reduce into
immutable
formulae
the
diverse
considerations on the basis of which this
discretion is exercised. Broadly speaking,
the Court would take into account the
various factors such as,

"the nature and seriousness of the
offence, the character of the evidence,
circumstances peculiar to the accused,
possibility of his absconding, larger
interest of the public and State (see State v.
Capt. Jagjit Singh; AIR 1962 SC 253)".

In addition, the Court may also
take into consideration the period during
which the proceedings against the accused
were pending in the courts below and the
period which is likely to elapse before the
appeal comes up for final hearing in this
Court.
In
the
context,
it
must
be
remembered
that
this
over-riding
discretionary jurisdiction under Article 136
is invoked sparingly, in exceptional cases,
where the order of acquittal recorded by
3 All. Surednra Prasad Misra & Anr. Vs. State of U.P. & Ors.
1305
the High Court is perverse or clearly
erroneous
and
results
in
a
gross
miscarriage of justice."

23. Most important it repelled the
contention made before it that an order
directing the rearrest and detention of an
accused respondent who had been acquitted
by the High Court of a capital offence, in
any way, offends Article 21 or any other
fundamental right guaranteed in Part III of
the Constitution. It held that by no stretch
of imagination could it be said that such an
order deprives the accused respondent of
his liberty in a manner otherwise than in
accordance with procedure established by
law.

24. Thus, from a reading of the said
Constitution Bench decision, it is clear that
even in an appeal against acquittal the the
presence of the acquitted person can be
secured either by issuing bailable warrant
or non-bailable warrant at the discretion of
the appellate Court which is to be exercised
in the light of the guidelines laid down by
Hon'ble the Supreme Court. The arrest of
such an acquitted person consequent to the
aforesaid does not violate Article 21 of the
Constitution.

25. We may now refer to the Full
Bench decision of the Bombay High Court
details of which have not been mentioned
by the Coordinate Bench, but, on our own
research we find that the said Full Bench
decision has been rendered in the case of
Balkrishna Mahadev Lad vs. State of
Maharashtra; 2012 SCC OnLine Bom
1490. On a reading the said Full Bench
decision, we find that two questions were
referred for its consideration which are as
under:

"(a) When in an appeal against
acquittal an action of issuing warrant for
arresting the accused is directed in
accordance with section 390 of the Code of
Criminal Procedure, 1973, whether the
Accused is entitled to bail as a matter of
right and whether the learned Sessions
Judge before whom the Accused is brought
has no power to direct that the Accused
shall be committed to prison till disposal of
the Appeal?

(b) Whether this Court has power
to direct that every breach committed by
Sessions Judge of the direction issued by
this Court will always constitute contempt
of this Court?"

26. While considering question no. 1
it found that some of the decisions by the
Division Benches which led to the
reference before the Larger Bench were
rendered without referring to the legal
position expounded by the Apex Court in
the case of Poosu (supra). The said
Division Benches also proceeded on the
premise as if the enlargement of a person
acquitted on bail by the Trial Court was a
matter of right whereas the legal position in
Poosu (supra) was entirely different. In this
context it observed as under:

"Notably,
the
abovesaid
observations have been made without
referring to the legal position expounded
by the Apex Court in the case of Poosu
(supra). Indubitably, a person who is
acquitted of the criminal charges, by a
Court of law, should not remain in jail even
for a day after acquittal. But, that does not
necessarily follow that the subordinate
Court, before whom the acquitted accused
is produced, in connection with the order
passed by the High Court in an appeal
against his acquittal, cannot commit him to
prison even if the fact situation so
warrants."
1306 INDIAN LAW REPORTS ALLAHABAD SERIES

27. The Full Bench of the Bombay
High Court took notice of the Apex Court
decision in the case of Poosu (supra). It
also considered the provisions of Section
390 of the Code of 1973 and in this context
it observed as under:

"8. A bare perusal of this
provision leaves no manner of doubt that
the High Court is expected to exercise its
judicial discretion on case to case basis to
issue a warrant (bailable or non-bailable)
directing that the accused be arrested and
brought before it or be produced before the
subordinate Court for compliance thereof.
The opening part of this Section makes it
amply clear that the judicial discretion can
be exercised at any stage, after the
presentation of the appeal under Section
378 of the Code. Thus, presentation of such
appeal is a sine qua non for exercise of this
judicial discretion, in terms of Section 390
of the Code.

9. Reverting to the other facet of
this provision, when an accused is
acquitted by the subordinate Court, after a
full-fledged trial, the High Court, while
issuing direction in exercise of powers
under Section 390 of the Code, may, in a
given case, issue "bailable warrants"
directing production of the accused before
it or the subordinate Court for compliance
thereof. If the accused is produced before
the subordinate Court, pursuant to such
"bailable warrants" issued by the High
Court, the subordinate Court may release
that accused on bail on terms and
conditions which must be just and proper to
secure the presence of the accused. Indeed,
if the accused is unable to fulfill the terms
and conditions for release on bail, the
subordinate Court will be justified in
directing committal of the accused to
prison. However, he must soon thereafter
intimate that fact to the High Court.
Notwithstanding the power given to the
subordinate Court under Section 390 of the
Code, it cannot direct that the accused be
committed to prison even if he is capable of
and willing to abide by the terms and
conditions of bail. Further, if the High
Court in its order issuing "bailable
warrants" has already spelt out the terms
and conditions then the subordinate Court
cannot add to or relax such conditions, but
is expected to ensure compliance of those
directions of the High Court.

10. Similarly, if the High Court
were to issue "non bailable warrants"
recording reasons indicative of committing
the accused to prison only, even in that
case, the subordinate Court, before whom
the accused is produced or appears in
response to warrant so issued, will have no
option but to commit such accused to
prison.

11. The Sessions Court, however,
can exercise its judicial discretion when the
High Court in its order has not indicated
either way to commit the accused to prison
or to admit him to bail, pending the
disposal of the appeal. In other words, if
the High Court, in its order, merely directs
initiation of action under Section 390 of the
Code and if the accused is produced before
the subordinate Court, it would be open to
the subordinate Court, after taking into
account all aspects of the matter, either to
admit the accused to bail on such terms
and conditions as it may be deem fit
keeping in mind that the same are essential
to secure the presence of the accused when
required in the pending appeal or to
commit him to prison. That judicial
discretion has to be exercised on the basis
of settled parameters and, inter alia,
keeping in mind the question, as to whether
releasing the accused on bail would not
hamper securing his attendance pending
3 All. Surednra Prasad Misra & Anr. Vs. State of U.P. & Ors.
1307
the disposal of the appeal against acquittal
in the High Court."

Thus, there is a discretion vested in the
Magistrate to be exercised judicially in
cases covered by Para 11 quoted above and
he is not bound to release him.

28. Thus, as per the Full Bench of
Bombay High Court, if orders for issuance
of bailable warrants are issued in terms of
Section 390 of the Code of 1973 by the
appellate Court, the subordinate Court may
release the accused on bail on the terms and
conditions which must be just and proper to
secure the presence of the accused but if
the accused is unable to fulfill the terms
and conditions for release on bail, the
subordinate Court will be justified in
directing committal of the accused to
prison. However, he must soon thereafter
intimate that fact to the High Court.

29. It has further observed that if the
High Court in its order issuing bailable
warrants has already spelt out the terms and
conditions then the subordinate Court
cannot add to or relax such conditions, but
is expected to ensure compliance of those
directions of the High Court. Similarly, it
has observed that if the High Court were to
issue
non-bailable
warrants
recording
reasons indicative of committing the
accused to prison only, even in that case,
the subordinate Court, before whom the
accused is produced or appears in response
to warrant so issued, will have no other
option but to commit such accused to
prison.

30. It has then observed that the
Sessions Court, however, can exercise its
judicial discretion when the High Court in
its order has not indicated either way to
commit the accused to prison or to admit
him to bail, pending the disposal of the
appeal. In other words, if the High Court, in
its order, merely directs initiation of action
under Section 390 of the Code of 1973 and
if the accused is produced before the
subordinate Court, it would be open to the
subordinate Court after taking into account
all aspects of the matter, either to admit the
accused to bail on such terms and
conditions as it may be deemed fit keeping
in mind that the same are essential to
secure the presence of the accused when
required in the pending appeal or to commit
him to prison. This judicial discretion has
to be exercised on the basis of settled
parameters and, inter alia, keeping in mind
the question, as to whether releasing the
accused on bail would not hamper securing
his attendance pending the disposal of the
appeal against acquittal in the High Court.
Even as per the Bombay High Court, this is
not to be done mechanically.

31. Thus, even as per the Bombay
High Court in the context of an appeal
against acquittal an action is taken under
Section 390 of the Code of 1973 the
acquitted person can either be enlarged on
bail or committed to prison depending upon
the facts of the case and the discretion to be
exercised judicially by the concerned
Court.

32.