Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(All) 2670

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
SANGEETA CHANDRA, PANKAJ BHATIA, MOHD. FAIZ ALAM KHAN, JJ.
In Re- Procedure To Be Followed In Hearing Of Criminal Appeals - Applicant
Versus
State of U.P. - Opposite Party
Criminal Reference No. 1 of 2024
Decided On : 22-01-2025
Advocates Appeared :
For the Applicant : Suo Motu, Apoorva Tewari, Ayush Tandon, Alok Mishra, Nadeem Murtaza, Naved Ali, Rajat Gangwar, S.M. Singh Royekwar, Vikas Vikram Singh.

Advocates Appeared:
For the Applicant : Suo Motu, Apoorva Tewari, Ayush Tandon, Alok Mishra, Nadeem Murtaza, Naved Ali, Rajat Gangwar, S.M. Singh Royekwar, Vikas Vikram Singh
For the Opposite Party : G.A.

The court ruled that non-bailable warrants issued for acquitted persons cannot lead to their automatic release on bail by Magistrates, emphasizing the need for judicial discretion and fair trial rights.

Headnote:
(A) Criminal Procedure Code, 1973 - Section 390 - Appeal against acquittal - Non-bailable warrants issued by High Court for securing presence of acquitted persons - Chief Judicial Magistrate lacks jurisdiction to release such persons on bail when non-bailable warrants have been issued - General directions by High Court regarding bail in such cases not permissible as they undermine judicial discretion - Court emphasizes the need for a fair trial and the right to legal representation, especially for those in custody. (Paras 1-156)

(B) Judicial discretion - The court must ensure the presence of accused through appropriate processes, including summons or bailable warrants, depending on circumstances - Non-bailable warrants should be issued only when necessary, and the court must consider the rights of the accused and victims alike. (Paras 11, 12, 20, 24)

(C) Legal representation - The right to legal aid is essential for a fair trial, and courts must ensure that accused persons are adequately represented, especially in serious cases. (Paras 31-41)

Judgement Key Points

Key Points: - The judgment discusses whether a Chief Judicial Magistrate or other Magistrate can enlarge acquitted/convicted persons on bail when High Court/Appellate Court has issued non-bailable warrants (Section 390 Cr.P.C.) and at what stage this can be done. (!) (!) (!) - It examines whether the High Court can issue general mandatory directions to Magistrates to grant bail in such cases and whether that encroaches on Magistrates’ discretion (and the legality of Allahabad Division Bench orders) (!) (!) (!) (!) - It clarifies admissible modes for securing presence of accused in appeals (summonses, bailable or non-bailable warrants, attachment, etc.) and the appropriate procedural approach (Poosu, Bani Singh, Surya Baksh Singh line) (!) (!) (!) (!) - It addresses the propriety and scope of appointing Amicus Curiae in appeals where the accused or counsel are absent, including in appeals against acquittal or conviction, and the conditions/cases for such appointment (Anokhilal, Bani Singh, Surya Baksh Singh, K.S. Panduranga, Hussainara Khatoon lineage) (!) (!) (!) (!) - It concludes that general blanket directions by High Court cannot supplant judicial discretion and that decisions must be case-specific, with emphasis on ensuring fair trial and presence while upholding victims’ rights (!) (!) (!)

Question 1?

Question 2?

Question 3?

JUDGMENT :

1. We have heard Shri Apoorva Tiwari, Shri Nadeem Murtaza, assisted by S/Shri Wali Nawaz Khan, Harsh Vardhan Kedia and Ms. Smigdha Singh, Shri S.M. Singh Royekwar, assisted by Shri Sumeet Tahilramani, Sri Vikas Vikram Singh, Sri Naved Ali, Sri Rajat Gangwar, Sri Alok Mishra, assisted by Shri Ajeet Kumar Mishra, Sri Ayush Tandon, learned Advocates, as also Dr. V.K. Singh, learned Government Advocate, Sri Umesh Chandra Verma, learned Additional Government Advocate-I, Shri Pawan Kumar Mishra, learned Additional Government Advocate, Sri Shivendra Shivam Singh Rathore, learned counsel for the State, Shri Bhavesh Chandel and Shri Shivang Tiwari, learned counsel at length.

2. This Reference has arisen out of order dated 12.03.2024 passed in Criminal Appeal No.465 of 1999: Surendra Prasad Misra and another Vs. State of U.P. and others, wherein a Division Bench (hereinafter referred to as ‘the Bench at Lucknow’) while hearing the Appeal was apprised of two orders of Coordinate Bench (hereinafter referred to as ‘the Bench at Allahabad’), dated 18.01.2024 passed in Govt Appeal No.454 of 2022: State of U.P. Vs. Geeta Devi and another; and the order dated 19.01.2024 passed in Govt Appeal No.2552 of 1981: State of U.P. Vs. Shamsuddin Khan and others.

3. The order dated 18.01.2024 passed by the Division Bench at Allahabad in Government Appeal No. 454 of 2022 is being reproduced as under:-

"1. Heard learned AGA appearing for the State and learned counsel for the respondents.

2. The present Government Appeal has been filed by the State against the order of acquittal dated 7.6.2018 passed by the Additional Sessions Judge / FTC No. 3, Muzaffar Nagar in ST No. 299 of 2007, under Sections 302, 201, 364, 120B IPC (State Vs.Brajpal and others).

3. We have gone through the order dated 9.9.2022 of this Court which was passed on the appeal filed by the State against the judgment of acquittal dated 7.6.2018. By the order dated 9.9.2022, the respondents were directed to furnish personal bond with two sureties in the like amount to the satisfaction of the learned CJM. However, it appears that they could not be served and thereafter Non bailable warrants were issued and they were arrested.

4. Learned counsel submits that both the respondents are in custody since 27.11.2022 i.e for a period of one year and three months.

5. Though the Bench is not in agreement with the procedure followed by the Court that in a State appeal challenging the judgment of acquittal, the issuance of Non Bailable Warrants would interpretate that police authority will execute the same and produce the concerned person before the High Court so that some effective order be passed with regard to their bail. However, in the instant case despite acquittal, the respondents are in judicial custody for more than one year and three months because bailable warrants were not executed. It is worth noticing to reproduce Section 390 of Cr.P.C. which read a under :

“Section 390: Arrest of accused in appeal from acquittal:- When an appeal is presented under section 378, the High Court may issue a warrant directing that the accused be arrested and brought before it or any subordinate Court, and the Court before which he is brought may commit him to prison pending the disposal of the appeal or admit him to bail.”

6. Similarity, in order to procure the presence of accused persons, the Court has an alternative option to order for attachment of property of person absconding under Section 83 Cr.P.C.. Further, Section 80 of Cr.P.C. provides for arrest of person against whom warrant is issued and it provides for taking security under Section 71 of Cr.P.C for production before the Court, such person may be released under Section 81 Cr.P.C.

7. A perusal of Section 390 Cr.P.C. clearly gives power to the Court before whom a accused is brought, either to send him to prison or admit him to bail. It is also worth noticing that repeatedly such type of cases are coming where in appeal in pursuance of the Non Bailabl