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.
advocatemmmohan 
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