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High Court of Judicature at Bombay
A.M. KHANWILKAR, R.M. SAVANT & P.D. KODE, JJ.
Balkrishna Mahadev Lad
Versus
State of Maharashtra
Criminal Bail Application No. 265 of 2012 In Criminal Appeal No. 812 of 2011
Decided on : 05-10-2012
Criminal Procedure Code, 1973 - Sections 390 and 437-A - Grant of bail. Subordinate Court before when accused is produced has judicial discretion to direct accused to be committed to prison or to admit him to bail keeping in mind order of High Court pending disposal of appeal.
The subordinate Court before whom the accused is produced pursuant to warrant issued in terms of order of the High Court, must exercise his judicial discretion on case to case basis and in particular keeping in mind the order of the High Court, passed in the pending appeal against acquittal in that regard.
The right of bail does not inhere in the accused, though has succeeded in getting acquittal from the trial Court. Both the High Court as well as the subordinate Court have to exercise judicial discretion on case to case basis. If the trial Court or the appellate Court, as the case may be, is inclined to acquit the accused, it has to ensure that the accused must execute a bail bond with surety to appear before the higher Court and this bail bond must be kept in force for six months. The accused is not entitled to bail as a matter of right merely because he has been acquitted.
Further, the subordinate Court, before whom the accused is produced, has judicial discretion to direct the accused to be committed to prison or to admit him to bail keeping in mind the order of the High Court, pending disposal of the appeal.
Criminal Procedure Code, 1973 - Section 390 - Arrest of accused in appeal against acquittal. Where appeal against acquittal of applicant- accused was admitted and action under Section 390 directed against applicant therefore since applicant was willing to furnish detailed address of his residence hence applicant directed to be released on bail.
Criminal Procedure Code, 1973 - Sections 390 and437-A - Right of bail. Since accused is not entitled to bail as a matter of right merely because he was acquitted hence subordinate Court before whom accused is produced, must exercise his judicial discretion on case to case basis.
JUDGE (PROTECTION) ACT, 1985 - Section 3 - Contempt of Courts Act, Section 2 - Contempt of Court - A Judge of Subordinate Court, cannot be proceeded against for any or every infraction of direction given by High Court as constituting Contempt of Court.
JUDGE (PROTECTION) ACT, 1985 - Section 3 - Contempt of Courts Act, 1971, Section 2 - Infraction of direction issued by High Court - When breach of direction of High Court on part of a Judge of a Subordinate Court is found wilful and involves mens rea, then contempt action may be initiated against such a Judicial Officer.
The Rules framed under the Act in 1987 provide for the formation of a pre-poll Aghadi and imposes the requirement of the leader of a municipal party to give the information of such formation to the Commissioner.
The Rules read together with Form III, clearly stipulates that the leader of the parties and the elected councillors must supply information only in relation to pre-poll Aghadi and not a post- poll Aghadi. Indeed that is why it was necessary to enact Section 31-A to provide that a post-poll Aghadi when formed shall he treated on par with a pre-poll Aghadi for the purpose of disqualification.
In this case, no information has been submitted by the constituents of the post-poll Aghadi in the form prescribed by the Disqualification Rules for the formation of a pre-poll Aghadi. In view of this Court, the Disqualification Act and the Rules do not require and prescribe that such information be submitted on the formation of a post-poll Aghadi. It cannot, therefore, be said that such as Aghadi has not come into existence on this count alone.
A.M. Khanwilkar, J.
This matter has been referred to the Full Bench, pursuant to the order passed by the Division Bench of Mr. Justice A. S. Oak and Mr. Justice A. V. Potdar on 29th February, 2012. The said Division Bench was of the opinion that the view expressed in the decision of another Division Bench of this Court (Bilal Nazki as he then and A. R. Joshi, JJ.) in the case of State of Maharashtra vs. Bapu Pandu Mali (2010 ALL MR (CRI) 120), and followed in the subsequent decision of another Division Bench of this Court (V. M. Kanade and A. M. Thipsay, JJ.) in the case of Farooq Abdul Gani Surve vs. the State of Maharashtra (2012 ALL MR (CRI) 271), was in conflict with the purport of Section 390 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) and in particular the exposition of the Apex Court in the case of State of U. P. vs. Poosu and Anr. (1976(3) SCC 1)and Amin Khan vs. State of Rajasthan (2009(3) SCC 776), which decisions were not brought to the notice of the Division Bench in the case of Bapu Pandu Mali (supra). Having taken that view, the Division Bench of Justice Oak and Justice Potdar formulated questions for consideration by a Larger Bench of this Court. The said questions read thus:
“(a) When in an appeal against acquittal an action of issuing warrant for arresting the accused is directed in accordance with Section 390 of the Code of Criminal Procedure, 1973, whether the Accused is entitled to bail as a matter of right and whether the learned Sessions Judge before whom the Accused is brought has no power to direct that the Accused shall be committed to prison till disposal of the Appeal?
(b) Whether this Court has power to direct that every breach committed by Sessions Judge of the direction issued by this Court will always constitute contempt of this Court?”
2) In the reference order, the Court has analysed the two previous decisions of the Division Bench referred to above. It found that keeping in mind the purport of Section 390, it would appear that judicial discretion could be exercised by the High Court on the question of issuance of bailable or non bailable warrant against the acquitted accused, at any stage of the appeal against acquittal. Further, the provision confers discretion on the Court, before whom the accused is brought, either to commit him to prison or to admit him to bail, pending disposal of the appeal. Therefore, the exposition in the case of Bapu Pandu Mali (supra) and Farooq Surve (supra) of the earlier Division Benches was contrary to the express language of Section 390 of the Code as well as the decisions of the Constitution Bench of the Apex Court in the case of Poosu(supra) and in the case of Amin Khan (supra). In the reference order, the Division Bench has disagreed with the opinion of the earlier two Division Benches that the subordinate Court will have no option but to grant bail.
3) It then went on to consider the direction issued in the earlier two decisions of the respective Division Benches to the effect that if Sessions Judge fails to follow the directions so issued, in that case, he shall be liable for contempt action. In the reference order, the Division Bench has noted that it is well settled that breach of an order of a Court will constitute civil contempt if and only if the breach is deliberate or wilful. Every breach is not a civil contempt. As a result of difference of opinion on these two issues the Court formulated two questions referred to above, in the reference order.
4) We have heard Counsel for the parties. Before we proceed to answer the two questions referred to the Larger Bench, we may first advert to the decision in the case of Bapu Pandu Mali (supra). This decision was rendered on 1st September, 2009, before coming into force of Section 437A of the Code. In that case, the Court noticed that although the accused was acquitted in the year 2003, he continued to remain in jail because of pendency of appeal against acquittal,
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