IMPORTANT POINT
There is difference between pre-conviction bail u/s 439 and post-conviction bail u/s 389, CrPC.
Non-compliance of procedure under proviso to section 389 vitiates the grant of bail u/s 389 CrPC.

Judgment

KURIAN, J.

Leave granted.

2. At the post conviction stage, 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.

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 ‘IPC’) 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 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, 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 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.”

5. 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