Judgment :

Dr. Arijit Pasayat, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the Rajasthan High Court, Jaipur Bench. Six persons faced trial for alleged commission of offences punishable under Section 396 of the Indian Penal Code, 1860 (in short the ‘IPC) and Sections 3 and 35 of the Arms Act, 1959 (in short the ‘Arms Act). The learned Sessions Judge, Alwar, acquitted the accused persons of all the charges. Being aggrieved by the finding of learned Sessions Judge the State filed an application seeking leave to appeal under Section 378 (3) of the Code of Criminal Procedure, 1973 (in short the ‘Code). On 26.5.2006 the High Court granted leave and summoned the respondents through bailable warrants. On 14.8.2006 the State filed an application in terms of Section 390 read with Section 482 of Code for revoking the earlier order and to commit the accused persons to prison after summoning them through non bailable warrants. A similar prayer was also made in the Revision Petition filed by widow of the deceased.

The prayers were accepted by the impugned orders.

The High Court noted that in the Test Identification Parade (in short the ‘TI Parade) held on 20th and 22nd March, 2005 Banwari Lal (PW-18) had correctly identified the accused persons. He also identified the accused persons in the trial Court. The foot prints of the respondents left at the spot were taken on 23.3.2005 before the learned Additional District Magistrate, Alwar and as per the Forensic Science Laboratory report foot moulds were found to be that of the accused persons. The investigating agency also seized hair from the hands of the deceased and as per DNA report, the seized hair tallied with the hair of accused Mubin and Amin. As per the testimony of the Investigating Officer various criminal cases were pending against the accused persons.

Stand of the State as well as the petitioner in the revision petition was that the acquittal of the respondents was based on mere presumptions without considering the evidence on record and, therefore, it was liable to be set aside.

3. Learned counsel for the accused contended that the presumption as to the innocence of the accused stands fortified by their acquittal by the trial Court. It was urged that refusal of bail is never for the purpose of punishment. In view of the long period taken for disposal of appeals, it would be improper to send the accused to custody. The evidence of identification was also pointed out to be without foundation and therefore the trial Court rightly discarded it.

4. TheHigh Court considering the rival stands passed the following order:

"On giving our thoughtful consideration to the nature of the accusation made against the accused respondents, the manner in which the crime is alleged to have been committed and the gravity of the offence we direct that warrant of arrest be issued against the accused respondents Mubin and Amin and they be produced before the learned Sessions Judge, Alwar who shall commit them to prison pending the disposal of appeal. We however grant bail to accused respondents Taiyab, Ilias, Islam and Khursheed and direct on furnishing personal bond in the sum of Rs.50,000/- with one surety of the like amount they be released on bail on the following conditions:-

(i) They will not commit any offence during the pendency of appeal.

(ii) On the last day of each month they will appear before the SHO Police Station, MIA Alwar who shall refer their presence in the daily Rajnamcha.

5. The order is questioned by the accused persons. Two Special Leave Petitions were filed. By order dated 21.11.2008 prayer was made for withdrawal of SLP (Crl.) No.432 of 2007. The same was dismissed as withdrawn.

6. So far as the present appeal is concerned it is submitted that the true scope and ambit of Section 390 of Code has not been kept in view.

7. Learned counsel for the respondents on the other hand supported the judgment.

8. Section 390 of Code reads as follows