S.S.SANDHAWALIA, J.

1. The primary question that calls for determination in this case is the true principle that should govern the grant of bail to accused persons who stand acquitted after trial upon a capital charge but whose acquittal has been challenged by way of appeal by the State under Section 417, Criminal Procedure Code, and such appeals have been admitted in this Court.

2. The matter first came up before my learned brother Tewatia, J. and myself and the view we were then inclined to take was at variance with that expressed in two Division Benches of this Court which in turn had followed the decision in The State V/s. Badapalli Adi ILR (1955) Cut 589. Hence the necessity for the constitution of this Full Bench.

3. The facts are not in dispute. The six petitioners were brought to trial on charges of murder and other subsidiary offences before the Additional Sessions Judge, Barnala, and stand acquitted on all those charges by his Judgement dated the 15th of February, 1971. Dissatisfied with the acquittal the State preferred an appeal in this Court which stands admitted by the order of the Division Bench of June 11, 1971, and non-bailable warrants against the petitioners were directed to issue. Having surrendered to custody in pursuance of the above process the petitioners have approached this Court for the grant of bail during the pendency of the abovesaid State appeal.

4. The crucial issue before us has been the challenge to the ratio decidendi of the judgement of the Division Bench of the Orissa High Court in Badapalli Adis case ILR (1955) Cut 589. In identical circumstances an express argument was raised before the Division Bench in that case that the presumption of innocence of the petitioner therein had been fortified by the order of acquittal and therefore there was no further justification for his retention in custody and that he was entitled to his liberty during the pendency of the acquittal appeal. Repelling such a contention the Bench observed as follows :-

"* * We have, therefore to uphold the contention raised on behalf of the State that the order of acquittal passed in favour of the petitioner does not alter his status as an accused against whom a capital charge is made. It is neither the practice nor is it desirable that in such cases the accused should be at large whilst his fate is being discussed in the Court. We have, therefore, no hesitation in reaffirming our order directing the accused to be remanded to custody and would reject this petition."

The view abovesaid was first followed by a Division Bench of this Court consisting of S.B. Capoor and Jindra Lal, JJ. in Zora Singh V/s. The State, Cri. Misc. No. 222 of 1967 in Cri. A. No. 1101 of 1966 D/-23-3-1967 (Punj.) and as is apparent from the judgement the issue was hardly agitated and the learned Judges of the Division Bench merely followed the Cuttack view. Subsequently in Punjab State V/s. Nand. Singh (Cri. Misc. No. 872 of 1971 in Cri. A. No. 315 of 1971 D/-8-6-1971 (Punj and Har) a similar issue came up before a Bench to which I was a party and the matter was not canvassed before us in view of the earlier Division Bench decisions in Badapalli Adi and Zora Singhs cases, which were again followed.

5. Reiterating his earlier contention before the Division Bench Mr. J.N. Kaushal forcefully argues that the judgement of acquittal has strengthened the initial presumption of innocence in favour of his clients and they are at least entitled to their liberty during the pendency of the appeal. A frontal assault has been made on the reasoning in Badapalli Adis case ILR (1955) Cut 589 and it has been argued that the view expressed therein is not sound on principle and in any case is no longer tenable in face of the subsequent pronouncement of the Supreme Court. I find considerable weight in this contention.

6. Throughout the web of Criminal Jurisprudence, runs the golden thread that every accused person is presumed to be innocent until he has been pr