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Sec.389 of Cr.P.C. – Granting bail at appellant stage in post conviction stage in sever offences – whether the public prosecutor has to file his objections in writing – if not filed it can be treated as No Objection and should be endorsed in the order – Apex court held that a. The appellate court, if inclined to consider the release of a convict sentenced to punishment for death or imprisonment for life or for a period of ten years or more, shall first give an opportunity to the public prosecutor to show cause in writing against such release. b. On such opportunity being given, the State is required to file its objections, if any, in writing. c. In case the public prosecutor does not file the objections in writing, the appellate court shall, in its order, specify that no objection had been filed despite the opportunity granted by the court. d. The court shall judiciously consider all the relevant factors whether specified in the objections or not, like gravity of offence, nature of the crime, age, criminal antecedents of the convict, impact on public confidence in court, etc. before passing an order for release. Admittedly, no such opportunity was granted to the State as contemplated under the first proviso of Section 389 Cr.PC in these appeals. Therefore, the impugned orders to the extent of release of the private respondents on bail are set aside. The High Court shall consider the matters afresh.= CRIMINAL APPEAL NO. 1516 OF 2014 [Arising out of S.L.P. (Criminal) No. 261 of 2013] Atul Tripathi … Appellant (s) Versus State of U.P. and another … Respondent (s) = 2014 July. Part – http://judis.nic.in/supremecourt/filename=41781

Sec.389 of Cr.P.C. – Granting bail at appellant stage in post conviction stage in sever offences  – whether the public prosecutor has to file his objections in writing – if not filed it can be treated as No Objection and should be endorsed in the order – 

Apex court held that

a.    The appellate court, if inclined to consider the release of a  convict sentenced to punishment for death or imprisonment for life or for  a  period of ten years or  more,  shall  first  give  an  opportunity  to  the  public prosecutor to show cause in writing against such release.

b.    On such opportunity being given, the State is  required  to  file  its objections, if any, in writing.

c.    In case  the  public  prosecutor  does  not  file  the  objections  in writing, the appellate court shall, in its order, specify that no  objection had been filed despite the opportunity granted by the court.

d.    The court shall judiciously consider all the relevant factors  whether specified in the objections or not, like gravity of offence, nature  of  the crime,  age,  criminal  antecedents  of  the  convict,  impact   on   public confidence in court, etc. before passing an order for release.

Admittedly, no such opportunity was granted to  the  State  as  contemplated under the first proviso of Section 389 Cr.PC in  these  appeals.  Therefore, the impugned orders to the extent of release of the private  respondents  on bail are set aside. The  High  Court  shall  consider  the  matters  afresh.=

whether  the   appellate   court,   while

considering the release of the convict on bail, should give  an  opportunity

to the public prosecutor for showing cause in writing against  such  release

where the conviction is on an offence punishable with death or  imprisonment

for life or for a term not less than ten years, is  the  issue  falling  for

consideration in these appeals.  =

High court bail orders

 “Heard Sri Rajeev Mishra, learned counsel for the  appellant  as  also

Sri A.N. Mulla, learned AGA for the State.  We have also  heard  Sri  Viresh

Mishra, learned Senior  Counsel  assisted  by  Sri  Rahul  Mishra,  Advocate

appearing on behalf of the informant.

This appeal shall be heard.

Call for lower court record of Sessions Trials No.435 of 2006, 436  of

2006 and 437 of 2006 from the court  of  Additional  Sessions  Judge,  Court

No.2, Azamgarh, which must be made available in a  maximum  period  of  four

weeks.

As regards the prayer for bail, the submission  is  that  the  present

appellant Shyam Narain Pandey along with  the  other  convict  Laxmi  Narain

Pandey were alleged in the FIR as  also  in  the  evidence  that  they  were

sitting in a vehicle and were remonstrating from there, the shots  whereupon

were fired by three others.

Regard being had to be submissions, let appellant Shyam Narain  Pandey

be released on bail, during pendency of appeal,  on  furnishing  a  bond  of

Rs.20,000/- with two sureties of the like amount each  to  the  satisfaction

of  the  learned  Additional  Sessions  Judge,  Court  No.2,   Azamgarh   in

connection with the Sessions Trial No.435 of 2006, 436 of 2006  and  437  of

2006.

As regard sentence of fine imposed upon  the  above  noted  appellant,

realization thereof shall remain stayed.

Order Date: 29.8.2012

Sd/- Dharnidhar Jha, J.

Sd/- Ashok Pal Singh, J.”

Subsequently, in  order  dated  05.09.2012,  it  was  clarified  that  Laxmi

Narayan Pandey is also to be covered by the  said  order.  In  the  case  of

Umesh Kumar Pandey and Ramesh Kumar Pandey, following is the order:

“This appeal shall be heard along with criminal appeal no.3239  of

2012 in which we also send for the record of learned trial court.

Heard Sri Satish Trivedi, learned Senior Counsel  appearing  for

the appellants and Sri Rahul  Sharma,  learned  counsel  appearing  for  the

informant as also learned AGA for the State.

As regards the prayer for bail, the submission is that the  case

of Laxmi Narain Pandey – appellant No.1 was same and similar to that of  co-

convict Shyam Narain Pandey.   As  regards  the  remaining  two  appellants,

namely, Umesh Kumar Pandey and Ramesh Kumar Pandey,  the submission is  that

except that they had also alighted  with  other  accused  persons  from  the

Bolero vehicle, there were no further allegation against them.

Regard being had  to  the  submission  and  evidence,  which  is

discussed in the impugned judgment, we direct the release of the  appellants

namely, Umesh Kumar Pandey and Ramesh Kumar Pandey on bail, during  pendency

of appeal, on furnishing a bond of Rs.20,000/- each  with  two  sureties  of

the like amount each to the satisfaction of the learned Additional  Sessions

Judge, Court No.2, Azamgarh in connection with the  Sessions  Trials  No.435

of 2006, 436 of 2006 and 437 of 2006.

As  regard  sentence  of  fine  imposed  upon  the  above  noted

appellant, realization thereof shall remain stayed till further orders.

Order Date: 05.09.2012”=

It may be seen that there is a marked difference between the  procedure  for

consideration of bail under Section 439, which is pre conviction  stage  and

Section 389 Cr.PC, which is post conviction stage.

In case of  Section  439,

the  Code  provides  that  only  notice  to  the  public  prosecutor  unless

impractical be given before granting bail to a person who is accused  of  an

offence which is triable exclusively by the Court of Sessions or  where  the

punishment for the offence is imprisonment for life; whereas in the case  of

post conviction bail under  Section  389  Cr.PC,  where  the  conviction  in

respect  of  a  serious  offence  having  punishment  with  death  or   life

imprisonment or imprisonment for a term not  less  than  ten  years,  it  is

mandatory that the appellate  court  gives  an  opportunity  to  the  public

prosecutor for showing cause in writing against such release.

Service of a copy of the appeal and  application  for  bail  on  the  public

prosecutor by the appellant  will  not  satisfy  the  requirement  of  first

proviso to Section 389 Cr.PC

Apex court held that

To sum up the legal position,

a.    The appellate court, if inclined to consider the release of a  convict

sentenced to punishment for death or imprisonment for life or for  a  period

of ten years or  more,  shall  first  give  an  opportunity  to  the  public

prosecutor to show cause in writing against such release.

b.    On such opportunity being given, the State is  required  to  file  its

objections, if any, in writing.

c.    In case  the  public  prosecutor  does  not  file  the  objections  in

writing, the appellate court shall, in its order, specify that no  objection

had been filed despite the opportunity granted by the court.

d.    The court shall judiciously consider all the relevant factors  whether

specified in the objections or not, like gravity of offence, nature  of  the

crime,  age,  criminal  antecedents  of  the  convict,  impact   on   public

confidence in court, etc. before passing an order for release.

Admittedly, no such opportunity was granted to  the  State  as  contemplated

under the first proviso of Section 389 Cr.PC in  these  appeals.  

Therefore,

the impugned orders to the extent of release of the private  respondents  on

bail are set aside. The  High  Court  shall  consider  the  matters  afresh.

Needless to say  that  Shyam  Narayan  Pandey–respondent  no.2  in  Criminal

Appeal No. __________ of 2014 @ S.L.P. (Criminal) No.261 of 2013  and  Laxmi

Narayan Pandey- respondent no.2,  Umesh  Kumar  Pandey-respondent  no.3  and

Ramesh Kumar Pandey-respondent no.4 in Criminal Appeal Nos.  ___________  of

2014 @ S.L.P. (Criminal) Nos. 262-263 of 2013  shall  surrender  before  the

trial court within three weeks  and,  if  not,  they  shall  be  taken  into

custody.   Thereafter,  the  High  Court   shall   consider   afresh   their

applications for bail, after following  the  procedure  as  per  proviso  to

Section 389 (1) Cr.PC as explained above, expeditiously.

The appeals are allowed as above.

2014 July. Part – http://judis.nic.in/supremecourt/filename=41781

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