# • STATE OF U.P v. ' _, POOSU AND ANOTHER

- **Citation:** [1976] 3 S.C.R. 1005
- **Court:** Supreme Court of India
- **Decided:** 1976-04-02
- **Case number:** Cr!. Mis. Petitions Nos. 1 and 243 of 1975
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-v-poosu-and-another-6604
- **Pages:** 5

## Headnote

1685
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STATE OF U.P.
A
V.
' _,
POOSU AND ANOTHER
April 2, 1976
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[A. N. RAY, CJ., M. H. BEG, R. S. SARKARIA, P. N. SHINGHAL ANO
JASWANT SINGH]
B
Constitution of India, Articles 136 rlw 142-Re-arrest and detention of
.accused during pendency of State appeal against acquittal, whether violative of
Articles 14, 19(1)(a) to (g) and 21.
The accused-respondents were acquitted by the High Court of capital oft'enccs. This Court granted the State of U.P. special leave to appeal, and under
Art. 136 read with Art. 142, issued orders directing the re-arrest and detention
of the accused.
The orders were challenged by the accused-respondents on
the grounds that their acquittal and the findings on which it is based, remain
fully in force during the pendency of the State appeal, and that in the absence
_.
-0f a specific statutory provision, the Supreme Courfs inherent power under the
i
Cr.P.C., or under Art. 142, cannot be invoked to order the deprivation of the
acquitted person's liberty, and that such an order would violate Articles 14,
19(1)(a) to (g) and 21 of the Constitution.
_On a reference of this question to the Constitution Bench,
HELD : This Court, while granting specia1 leave to appeal against an order
of acquittal on a capital charge, is competent by virtue of Art. 142 read with
Art. 136, to exercise the same p0wers which the High Court has under .sec. 427
(re-enacted as Sec. 390 of the new Cr.P.C. of 1973). An order directing the
re-arrest and detention of an accused-respondent who has been acquitted by
the High Court of a capital offence, neither offends Art. 21 or any other
fundamental right guaranteed in Part III of the Constitution.. nor deprives the
accused-respondent of his liberty in a manner otherwise than in accordance
with procedure established by law.
[!008D-E, !009A·B]
-'
State v. Badapalli Adi & Ors. I.L.R. 1955 Cuttack 589, En1press of India v.
Mangu & Ors. l.L.R. 2 All. 340; Queen v. Gobin Tiwari I.L.R. [18761 l Cal.
281; Queen En1press v. Gobardhan l.L.R. [18871 9 All. 528; Banna v. 1'1ethucn
& Ors. 2 Bens. 228; K. M. Nanqyati v. State of Mahara.thtra, [1962] 1 Supp.
S.C.R. 567 and The State v. Capt. Jagjit Singh [1962] 3 S.C.R. 622, referred to.
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## Text

1685
•
STATE OF U.P.
A
V.
' _,
POOSU AND ANOTHER
April 2, 1976
•
•
[A. N. RAY, CJ., M. H. BEG, R. S. SARKARIA, P. N. SHINGHAL ANO
JASWANT SINGH]
B
Constitution of India, Articles 136 rlw 142-Re-arrest and detention of
.accused during pendency of State appeal against acquittal, whether violative of
Articles 14, 19(1)(a) to (g) and 21.
The accused-respondents were acquitted by the High Court of capital oft'enccs. This Court granted the State of U.P. special leave to appeal, and under
Art. 136 read with Art. 142, issued orders directing the re-arrest and detention
of the accused.
The orders were challenged by the accused-respondents on
the grounds that their acquittal and the findings on which it is based, remain
fully in force during the pendency of the State appeal, and that in the absence
_.
-0f a specific statutory provision, the Supreme Courfs inherent power under the
i
Cr.P.C., or under Art. 142, cannot be invoked to order the deprivation of the
acquitted person's liberty, and that such an order would violate Articles 14,
19(1)(a) to (g) and 21 of the Constitution.
_On a reference of this question to the Constitution Bench,
HELD : This Court, while granting specia1 leave to appeal against an order
of acquittal on a capital charge, is competent by virtue of Art. 142 read with
Art. 136, to exercise the same p0wers which the High Court has under .sec. 427
(re-enacted as Sec. 390 of the new Cr.P.C. of 1973). An order directing the
re-arrest and detention of an accused-respondent who has been acquitted by
the High Court of a capital offence, neither offends Art. 21 or any other
fundamental right guaranteed in Part III of the Constitution.. nor deprives the
accused-respondent of his liberty in a manner otherwise than in accordance
with procedure established by law.
[!008D-E, !009A·B]
-'
State v. Badapalli Adi & Ors. I.L.R. 1955 Cuttack 589, En1press of India v.
Mangu & Ors. l.L.R. 2 All. 340; Queen v. Gobin Tiwari I.L.R. [18761 l Cal.
281; Queen En1press v. Gobardhan l.L.R. [18871 9 All. 528; Banna v. 1'1ethucn
& Ors. 2 Bens. 228; K. M. Nanqyati v. State of Mahara.thtra, [1962] 1 Supp.
S.C.R. 567 and The State v. Capt. Jagjit Singh [1962] 3 S.C.R. 622, referred to.
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CRIMINAL APPELLATE JURISDICTION : Cr!. Mis. Petitions Nos. 1 and
243 of 1975.
F
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(Appeal by special leave from the judgmnt and order dated the
24-10-1973 of the Allahabad High Court in Criminal Appeal No. 710
of 1973.
Referred No. 34 of 1973)
R. K. Garg, S. C. Agarwal, V. J. Francis, for the petl'.ioner in Cri.
Mis. 1 and 243 of 1975.
0. P. Rana, for the petitioner/r. 2 in Cr. M.P. No. 546/75 .
D. P. Uniyal with 0. P. Rana for the opposite side in Crl. M. P.
Nos. 1 and 243 of 1975.
Pramod Swarup, for respondent No. 2 in Cr. M. P. No. 546 of
1975.
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The Judgment of the Court was delivered by
H
SARKARIA, J.
The common question referred to the Constitution
Bench in these two cases is : Whe'.her the Supreme Court while granting
14-725SC!f76
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1006
SUPREME COURT REPORTS
[1976] 3 S .. C.R.
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 nonbailable warrant for the arrest and co11unittal to prison of the accusedrespondent who had bery. acquitted by the High Court?
>-._}
Mr. R. K. Garg, Counsel for· the accused-respondcn'.s herein, contends that while the legislature bas, in its wisdom, empowered the High
Court to cause an accused person to be arrested and committed to
prison pending the disposal of the appeal against acquittal, no such
power has been conferred on the Supreme Court by the Code or any
other statute.
According to Counsel, in the absence of a specific statutory provision, the inherent power of the Court to do complete justice
under the Code or even under Article 142 of the Constitution cannot
be invoked to order deprivation of the liberty of a person who has
b,een found innocent and acquitted by the High Cour,t on all the charges
against him because such an order would be violative of Articles 14,
19(1) (a) to (g) and 21 of the Constitution.
It is maintained that
even after the grant of special leave to appeal under Article 136 against
an order of acquittal passed by the High Court, the acquittal and the
~
findings on which it is based, remain fully in force during the pendency of appeal by the State. It is contended that once it is ensured
that the accused-respondent will be. available to submit himself to the
final orders of this Court that may be passed in the appeal under
Article 136, the inherent powers
of the Court under the Code or
under Article 142 exhaust themselves.
In support of his contentions,, Counsel has referred to State of U.P.
v. Mohamed Noah('); and A. K. Gopalan v. State of Madras('); Lala
Jairam Das and ors. v. King Emperor('); Sheo Swarup and ors. v. The
King Emperor(') and M. G. Agarwal v. State of Maharashtra("); Prem
Chand Garg v. Excise Commissioner, U.P. Allahabad(').
As against this, Mr. Uniyal and Mr. 0. P. Rana submit that by
virtue of Article 142 read with Article 136 of tne Constitution, this
Court pending disposal of an appeal against an order of acquittal, is
competent to exercise the same powers which are conferred on the High
Court by the Code of Criminal Procedure.
In support of this contention, Mr. Rana has referred to State of U.P. v. Deoman Upadayaya( 1 );
Abdul Rehman Mahomed Yu~uf v. Mahomed Haji Ahmed Agbotwale
and anr.( 8).
We are unable to accept the contentions advanced by Mr. Garg.
To appreciate the point involved, it will be useful to have a look at
the provisions of s. 427 of the Code of Criminal Procedure, 1898 and
its historical perspective.
This section (which has been re-enacted as
s. 390 of the new Code of 1973) provides :
'When an appeal is presented under s. 41 lA sub-section
(2) or section 417, the High Court may issue a warrant
directing that the accused be arrested and brought before it
(1) [1958] S.C.R. 595.
(2) [1950] S.C.R. 88.
(3) 72 I.A. 120.
(4)
61 I.A. 398.
(5) [1963] 2 S.C.R.405.
(6) 1963 Supp I, S.C.R. 885
(7) [1961] I $.C.R. 14.
(8) [196011 S.C.R. 749.
I
•
U.P. STATE v. POOSU (Sarkaria, J.)
I 007
or any subordinate Court, and the Court before which he is
A
brought may commit him to prison pending the disposal of
the appeal, or admit him to bail."
It may be noted that this provision was for the first time enacted
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 accusedrespondent by bailable or non-bailable warrants.
As pointed out by
Panigrahi C. J. in State v. Badapa/li Adi and ors.(') "what was formerly
the judicial practice received statutory recognition in the year 1882
when this provision in s.427, Criminal Procedure Code was introduced."
In Empress of India v. Mangu and ors.(') (which was decided several
years before the addition of this provision in the Code), a Full Bench
of Allahabad High Court held, that the High Court has the power to
cause the rearrest and detention of the accused in prison, pending an
appeal against an order of acquittal.
To the same effect was
the
decision of the Calcutta High Court in Queen v. Gobin Tewari(').
;
Again in Queen-Empress v. Gobardhan(4 ), Sir John Edge, Chief Justice without laying down any inflexible rule, emphasised that it is not
desirable that, pending the appeal against acquittal in a capital case, the
prisoner should remain at large while his fate is being discussed by the
High Court. The ratio of this decision was followed by a Division
Bench of Orissa High Court in State v. Badapalli Adi and ors. (supra).
Viewed in this perspective, it is clear thot even before the enactment of this provision, the High Court had the power to cause, in its
discretion, the arrest and detention in prison of the accused-respondent
of or his enlargement on bail, pending disposal of the appeal against
his acquittal.
This power was
ancillary to and necessary for
an
effective exercise 0f its jurisdiction in an appeal against an order of
;1
acquittal, conferred on the High Court by the Code.
As far back as 1824, in the English case, Bana v. Methuen and
ors. (')
Bes! J. following an older precedent enunciated the rule that :
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"when an act of Parliament gives a justice jurisdiction over
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an offence, it impliedly gives him a power to make out a
warrant, and bring before him any person charged with such
offence."
This is the rationale of s.427.
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
G
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.
Similar is the position when the Supreme Court, in its discretion,
grants special leave to appeal under Article 136 of the Constitution,
against an order of acquittal passed by the High Court.
(1) J.L.R. [1955) Cuttack 589.
(2) l.L.R. 2 All 340.
(3) !.L.R. (1876) 1 Cal. 281.
(4) I.L.R. (1887) 9 All. 52~.
(5) 2 Bens 228.
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SUPREM~ COURT REPORTS
[1976] 3 S.C.R.
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Article 136 confers on the Supreme Court, the same power which
was vested
in the
Crown to grant special leave to appeal to His
Majesty-in-Council (which in practice mea~t the Judicial Committee
>-. f
of the Privy Council in England) to convicted persons from India.
This Article is couched in very specious phraseology.
The
power
under it can be exercised in respect of "any judgment, decree, determination, sentence or order in any cause, matter passed or made by
any court or tribunal in the territory of India." As pointed out by this
Court in K. M. Nanavati v. State of Maharashtra('), "this wide and comprehensive power in respect of any determination of any court or tribunal must carry with it the power to pass orders incidental or ancillary
to the exercise of that power."
That is why, Article 142 in equally
extensive terms gives this Court power" to make such order as is
necessary for doing complete justice in any cause or matter before it
and any decree
so passed or order so made shall
be enforceable
i,
throughout the territory of India".
With the same end in view,
clause (2) of that Article (subject of course to law, if any, made by
Parliament) gives this Court "all and every power to make any order
for the purpose of securing the attendance of any person".
Thus there can be no doubt that this Court while granting special
leave to appeal against an order of acquittal on a capital charge is
competent by virtue of Article 142 read with Article 136, to exercise
the same powers which
the High Court has under s.
427.
Whether in the circumstances of the case,, 1lhe attendance ,¢ 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, tampering with evidence, larger interest
of the public and State"-see The State v. Capt. Jagjil Singh(').
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 before 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 crder
of acquittal recorded by the High Court is perverse or clearly erroneous and results in a gross miscarriage of justice.
(l) [19621
!Supp. 567.
(2) [(962] 3 S.C.R. 622.
•
U.P STATE v. POOSU (Sarkaria, J.)
1009
Nor do we find any merit in the contention that an order directing
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tbe re-arrest 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 IH of the
Constitution.
Such an order is made by this Court in the exercise of
its plenary jurisdiction conferred by Articles 136 and 142 of the Constitution.
By no stretch of imagination can it be said t!hat such an
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order deprives the accused-respondent of his liberty in a manner otherwise than in accordance with procedure established by law.
It is not necessary to burden this judgment with a discussion of the
rulings cited by Mr. Garg.
Suffice it to say that the facts of those
cases were entirely different and they have no bearing on the point in
issue before us.
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For all the foregoing reasons, we answer the question posed at the
"Icommencement of this judgment in the affirmative and dispose of the
references accordingly.
M.R.
Reference answered against the accused/respondents.
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