Supreme Court of India
ATUL TRIPATHIversusSTATE OF UP. & ANR.
- Citation
- 2014 INSC 499
- Decided
- 22 July 2014
- Disposal
- Appeal(s) allowed
- Bench
- M Y EQBAL
Holding
The first proviso of Section 389(1) Cr.P.C. is mandatory; the appellate court must give the public prosecutor a written opportunity to show cause before granting bail in such serious cases.
Summary
The Supreme Court examined appeals filed by the State of Uttar Pradesh challenging the High Court's grant of bail to several convicts who had been sentenced to life imprisonment for serious offences under the IPC and the Criminal Law (Amendment) Act, 2013. The central issue was whether, at the post‑conviction stage, the appellate court must give the public prosecutor an opportunity to show cause in writing before releasing a convict on bail under Section 389(1) of the Criminal Procedure Code when the offence is punishable with death, life imprisonment or a term of ten years or more. The Court held that the first proviso to Section 389 is mandatory and that merely serving a copy of the appeal and bail application on the public prosecutor does not satisfy the requirement. Consequently, the bail orders granted by the High Court were set aside and the matter was remitted for fresh consideration in compliance with the statutory procedure. The appeals were allowed.
Issues considered
- Whether the appellate court must provide the public prosecutor an opportunity to show cause in writing before granting post‑conviction bail under Section 389(1) Cr.P.C. for offences punishable with death, life imprisonment or imprisonment of ten years or more.
- Whether service of a copy of the appeal and bail application on the public prosecutor satisfies the first proviso of Section 389.
Legislation cited
- Code of Criminal Procedure, 1973s. 389, s. 439
- Criminal Law (Amendment) Act, 2013s. 7
- Indian Penal Code, 1860s. 120B, s. 147, s. 148, s. 149, s. 302
Subjects
post‑conviction bailSection 389 Cr.P.C.public prosecutoropportunity to show causeserious offencesprocedural complianceSupreme Court
Judgment
[2014] 14 S.C.R. 1188
A ATUL TRIPATHI
v.
. STATE OF UP. &ANR.
(Criminal Appeal No.1516 of 2014)
B JULY22, 2014
[M. Y. EQBALAND KURIAN JOSEPH, JJ.]
Code of Criminal Procedure, 1973:
s. 389 first Proviso - Bail-At post-conviction stage -
c Procedure for - Opportunity to Public Prosecutor for showing
cause in writing against .such release - Need for - Held:
1(1/here the conviction is 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 for the
o appellate court to give an opportunity to Public Prosecutor,
for showing cause in writing against such release - Service
of copy of appeal and application for bail, on the Public
Prosecutor, will not satisfy the requirement of first proviso to
s. 389 - Bail.
E ss. 389 and 439 - Bail - At pre-conviction and post-
conviction stages- Procedure for~ Distinction - Discussed.
The question for consideration in the present cases.
were whether at the post conviction stage, the appellate
court, while considering the release of the convict on
F 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 as envisaged in first Proviso to s. 389 Cr.P.C.
G Allowing the appeals, the Court
HELD: 1. There is a marked difference between the
procedure for consideration of bail under Section 439
Cr.P.C., which is pre-conviction stage and Section 389
H Cr.P.C., which is post-conviction stage. In case of Section
1188
ATUL TRIPATHI v. STATE OF UP. &ANR. 1189
439 Cr.P.C., the Code provides that only notice to the A
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 B
Section 389, 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 C
cause in writing against such release. [Para 14)
[1197-G-H; 1198-A-B]
2. 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. D
The appellate court may even without hearing the public
prosecutor, decline to grant bail. However, in case the
appellate court is inclined to consider the release of the
convict on bail, the public prosecutor shall be granted
an opportunity to show cause in writing as to why the E
appellant be not released on bail. Such a stringent
provision is introduced·only to ensure that the court is
apprised of all the relevant factors so that the court may
consider whether it is an appropriate case for release
having regard to the manner in which the crime is F·
. committed, gravity of the offence, age, criminal
antecedents of the convict, impact on public confidence
in the justice delivery system, etc. Despite such an
opportunity being granted to the public prosecutor, in
case no cause is shown in writing, the appellate court G
shall record that the State has not filed any objection in
writing. This procedure is intended to ensure
transparency, to ensure that there is no allegation of
H
1190 SUPREME COURT REPORTS [2014] 14 S.C.R.
A collusion and to ensure thatthe court is properly assisted
by the State with true and correct facts with regard to .
the relevant considerations for grant of !?ail in respect of
serious offences, at the post conviction stage.
[Para 15][1198-C-G]
B 3. The appellate court, if inclined to consider the
release of a convict sentenced to punishment for death
or imprisonm.ent 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
C release. On such opportunity being given, the State is
required to file its objections, if any, in writing. 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
D granted by the court. The court shall judiciously consider
all the relevant factors whether specified in the
objection's 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
E orderforrelease. [Para 16][1198-G-H; 1199-A-C]
4. In the present cases, no such opportunity was
granted to the State as contemplated under the first
proviso of Section 389 Cr.PC. Therefore, the impugned
orders to the extent of release of the private respondents
·F on bail are set aside. The High Court shall consider the
matters afresh. [Para 17][1199-D-E]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 1516 of 2014.
G From the Judgment and Order dated 29.08.2012 in
CRLA No. 3239/2012 passed by the High Court of Judicature
at Allahabad.
With
CRL.Appeal no.1517-18 of 2014@SLP (Crl) No. 262-
H .263 of 2013.
ATUL TRIPATHI v. STATE OF UP. &ANR. 1191
Ashok Panigrahi, R. N. Tripathi, Santosh Kumar, A
Ms.Ashmi Mohan and Ms.Tuleka Mukhe~ee (For M/sAnuradha
&Associates), Advs .. for the Appellant.
R.K. Das, Pramod Swarup, Sr.Advs. Sibo Sankar Misra,
Pareena Swarup, Ameet Singh, Ms. Alka Sinha, Anuvrat
Sharma and Tuleka Mukherjee (For M/s Ariuradha & B
Associates), Advs .. forthe Respondents.
The Judgment of the Court was delivered by
KURIAN, J. 1. Leave granted.
2. At the post conviction stage, whether the appellate C
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 imprisonmerit for life
or for a term not less than ten years, is the issue falling for D
consideration in these appeals.
3. All the private respondents have been convicted by
the Court of Additional Sessions Judge, Azamgarh under
·Sections 147, 148, 149 read with Sections 302, 120B of the
Indian Penal Code (45 of 1860) (hereinafter referred to as E
'!PC') and Section 7 of Criminal Law (Amendment) Act, 2013
and they have been awarded sentence of imprisonment for
life with fine. Altogether seven accused have been convicted;
· however bail is granted only to four. ·
4. The main contention of the appellant is that_ the F
procedure contemplated under Section 389 proviso has not
been complied with while releasing them on bail and, hence,
the order passed by the High Court is liable to be set aside.
For the purpose of ready reference, we shall extract the
impugned order dated 29.08.2012 passed by the High Court, G
which reads as follows:
"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 H
1192 SUPREME COURT REPORTS [2014] 14 S.C.R.
A · 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 eourt of
B
Additional Sesiiions Judge, Court No.2,Azamgarh, which
must be made available in a m_aximum period of four
weeks.
As regards the prayer for bail, the submission is that the
c 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. •
D 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,
E Court No.2, Azarngarh 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.
F Order Date: 29.8.2012
Sdl- Dharnidhar Jha, J.
Sd/-Ashok Pal Singh, J."
5. Subsequently, in order dated 05.09.2012, it was
.G 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
H record of learned trial court.
ATUL TRIPATHI v. STATE OF UP. &ANR. 1193
[KURIAN, J.]
Heard Sri Salish Trivedi, learned Senior Counsel A
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 B
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 C
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,
0
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 E
and 437 of 2006.
As regard sentence of fine imposed upon the
above noted appellant, realization thereof shall remain
stayed till further orders.
F
Order Date: 05.09.2012"
6. Section 389 of the Code of Criminal ~rocedure, 1973
(hereinafter referred to as 'Cr.PC') reads as follows:
"S.389. Suspension of sentence pending the
appeal; release of appellant on bail.-( 1) Pending any G
appeal by a eonvicted person, the Appellate 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. H
1194 SUPREME COURT REPORTS (2014] 14 S.C.R.
A (ProvidedthattheAppellate 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 giye opportunity to the Public
B Prosecutor for showing cause in writing against such
release:
Provided furlherthat 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
c 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 thereto.
D
(3) Where the convicted person satisfies the Court by
. which he is convicted that he intends to presetl'lt an appeal,
the Court shall;--
(i) where such person, being on bail, is sentenced to
E imprisonment for a term not exceeding three years, or
(ii) where the offence ofwhich 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 oail, 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.
G
(4) When the appellant is ultimately sentenced to
imprisonment for a term or to imprisonment for life, the
time during which be is so released shall be excluded in
computing the term for which he is so sentenced."
H (Emphasis supplied)
ATUL TRI PATH Iv. STATE OF UP. &ANR. 1195
[KURIAN, J.]
7. Since the argument is on the faulty procedure adopted A
by the High Court on 24.03.2004, this Court directed the
respondents to state on affidavit:
"... as to whether the first proviso to Section 389 Cr.PC.
for giving an opportunity to the Public Prosecutor for
showing cause in writing against the proposed released B
of the convicted person on bail was complied with before
the impugned bai.1 order was passed by the High Court."
8. The State has filed an affidavit on 24.04.2014.
ParaBraph 5 of the affidavit reads as follows:
c
'That in this regard, it is respectfully submitted, that as
per information received, no opportunity for showing
cause in writing was provided to the State counsel though
the State counsel appeared on the said date."
(Emphasis supplied) D
9. On behalf of the second respondent, an affidavit has ·
been filed on 12.04.2014 wherein it is stated at paragraphs 2
and 3 as follows:
"2 .... In this context it may be stated that respondent no. E
2 to 4 for challenging the judgment and order of conviction
recorded by the trial court gave notice of the appeal to
the State Counsel on 31.08.2012. Tne notice consisted
of the memo of appeal and the application for bail. There-
upon appeal alongwith bail application were filed. Giving ·
of earlier notice to the State Counsel was in compliance F
with the requirement of law as provided in Section 389
Cr.P.C. to enable the State to have its say in writing on
the prayer for bail.
6. That the appeal (Criminal Appeal No. 3404/2012) G
alongwith bail application were listed on 05.09".2014. The
counsel representing State as well as of the complainant,
petitioner here-in, entered appearance and ·objected to
the respondent's prayer for bail. Upon hearing the counsel
H
1196 SUPREME COURT REPORTS [2014) 14 S.C.R.
A of respondent no. 2 to 4, State and the complainant,
Hon'ble High Court passed the impugned order(s) .... "
(Emphasis supplied) .
10. Learned counsel for the private respondents
contends that the appellants had given copies of the appeal
8
and the bail application to the public prosecutor and since the
public prosecutor having been heard on the day when the
appeal came up for admission, there is c_ompliance of the first
proviso under Section 389 Cr.PC. The public prosecutor having
appeared in the matter and opposed the application for bail,
C the statutory requirement of opportunity to sliow cause has been
satisfied.
11. The provisos to Section .389 were introduced mainly
pursuant to the 154'" Report of the Law Commission of India
0 submitted in 1996. The amendments were introduced by Act
25 of 2005 and they have come into effect from 23.06.2006.
· The Law. Commission recommended for addition of two
provisos. The recommendation reads as follows:
"47. Two provisos to sub-section (1) of section 389 of
·E the Code be added to the effect that the Appellate Court
would give notice to the prosecution before releasing a
convicted person on bail, if he was convicted of an offence
punishable with death, imprisonment for life or
imprisonment for a terni of not less than ten years and
F. also to enable the prosecution to move an application
for cancellation of such bail granted by the Appellate
Cou~" .
12. However, in the Bill, a further modification was
suggested to the effect that the public prosecutor be given an
G opportunity to show cause in writing againstthe release and,
thus, the provisos have found place under Section 389(1)
Cr.PC.
13. Section 389 comes under Chapter XXIX of Cr.PC
dealing with appeals. Section 439 Cr.PC coming under
H Chapter XXXlll Cr.PC provides for special powers to High
. --
ATUL TRIPATHI v. STATE OF UP. &ANR. 1197
[KURIAN, J.]
Court or Court of Sessions regarding bail for an accused. A
Section 439(1) also·has a proviso. Section 439 reads as
follows:
"S.439. Special powers of High Court or Court of
Session regarding bail.-(1) A High Court or Court of
Session may direct- B
(a) that any person accused of an offence and in
custody, be released on bail, and ifthe offence
is of the nature specified in sub-section (3) of
section 437, may impose any condition which C
it considers necessary for the purposes
mentioned in that sub-section;
(b) that any condition imposed by a ·Magistrate
when releasing any person on bail be set aside
or modified: D
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 E
for bail to the Public Prosecutor unless it is. for reasons
to be recorded in writing. of opinion that it is not
practicable to give such notice.
(2) A High Court or Court of Session may direct that any
person who has been released on bail under this Chapter F
be arrested and commit him to custody."
(Emphasis supplied)
14. It may be seen that there is a marked difference
between the procedure for consideration of bail under Section G
439, which is pre conviction stage and Section 389 Cr.PC,
which is post conviction sb~ge. 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 H
1198 SUPREME COURT REPORTS . [2014] 14 S.C.R.
A • 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
B years, it is mandatory that the appellate court gives an
opportunity to the public prosecutor for showing cause in writing
against such release.
15. Service of a copy of the appeal and application for
bail on the public prosecutor by the appellant will not satisfy
C the requirement of first proviso to Section 389 Cr.PC. The
appellate court may even without hearing the public prosecutor,
decline to grant bail. However, in case the appellate court is
inclined to consider the release of the convict on bail, the public
prosecutor shall be granted an opportunity to show cause in
D writing as to why the appellant be not released on bail. Such a
stringent provision is introdu.ced only to ensure that the court
is apprised of all the relevant factors so that the court may
col}sider Whether it is an appropriate case for release having
regard to the manner in which the crime is committed, gravity
E ofthe offence; age, criminal antecedents of the convict, impact
.• on public confidence in the justice delivery system, etc. Despite
such an opportunity being granted to the public prosecutor, in
case no. cause is shown in writing, the appellate court shall
.recor.d that the State has not filed any objection in writing. This
F procedure is intended to ensure transparency, to ensure that
· there is no allegation of collusion and to ensure that the court
is properly assisted by the State with true and correct facts
with regard to the relevant considerations for grant of bail in
respect of serious offences, at the post conviction stage.
G 16. 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
H
ATUL TRIPATHI v. STATE OF UP. &ANR. 1199
[KURIAN, J.]
public prosecutor to show cause in writing against A
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 B
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, c
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.
17. Admittedly, no such opportunity was granted to the D
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 E
in Criminal Appeal No. 1516 of 2014 @ S.L.P. (Criminal)
No.261 of2013 and Laxmi Narayan Pandey-respondent no.2,
Umesh Kumar Pandey-respondent no.3 and Ramesh Kumar
Pandey-respondent no.4 in Criminal Appeal Nos. 1517-18 of
2014@S.L.P. (Criminal) Nos. 262-263 of2013 shall surrender F
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. G
18. The appeals are allowed as above.
Kalpana K. Tripathy Appeals allowed.
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