Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(All) 2479

IN THE HIGH COURT OF ALLAHABAD
Ashwani Kumar Mishra, Sanjay Kumar Singh, JJ.
B.K. Tiwari – Appellant
Versus
State Of U.P. And Anr. – Respondent
CRIMINAL MISC. APPLICATION U/S 389(2) No. – 1 of 2016
Decided on : 17-12-2024

Advocates Appeared:
For the Appellant : Ashwini Kumar Awasthi, Manish Tiwary (Senior Adv.)
For the Respondent: Dileep Kumar, G.A.,Rahul Agarwal, Shishir Tandon, Sudhir Tandon

The High Court has the authority to grant bail under Section 389(2) despite prior denials by subordinate courts, maintaining concurrent jurisdiction to enhance access to justice.

Headnote:(A) Code of Criminal Procedure, 1973 - Section 389(2) - Maintainability of bail applications before High Court versus lower appellate court - High Court has powers to grant bail under Section 389(2) for appeals pending in subordinate courts where bail applications have been rejected, and its powers are concurrent with those of the subordinate court, thereby preventing any abrogation of powers. The refusal of Registry to accept a bail application under Section 389(2) due to technical issues was not justified; however, the High Court emphasized that statutory remedies must be followed. (Paras 1, 8, 26, 35)

(B) Judiciary powers - The High Court's jurisdiction to grant bail after conviction is recognized but should not undermine the authority of the appellate court to review bail applications. Fresh arguments for bail cannot be made on same facts post-rejection without new circumstances providing sufficient grounds for reconsideration to maintain judicial discipline. (Paras 16, 18, 36)

Facts of the case:
The applicant was convicted of Section 409 IPC and sought bail before the High Court after multiple bail applications were rejected by the lower court and another revision was dismissed. The streamlined process for proceeding under Section 389(2) was not initially accepted by the Registry due to systemic issues. (Paras 1, 4, 6)

Findings of Court:
The High Court clarified that bail applications are maintainable under Section 389(2) even when appeals are pending in subordinate courts; the statutory framework delineates clear provisions for accessibility to bail. (Paras 26, 38)

Issues: Whether the High Court had the jurisdiction to grant bail under Section 389(2) in the face of a rejected application by a lower appellate court, and the implications of judicial propriety concerning subsequent bail applications. (Paras 7, 35)

Ratio Decidendi: The Court affirmed that inherent powers should not be invoked bypassing legislative provisions specifically designed for granting bail to ensure equitable justice. Access to justice is pivotal and must not be obstructed by administrative hindrances. (Paras 20, 32)

Result: The reference is answered affirmatively, establishing the maintainability of bail applications under Section 389(2).

JUDGMENT :

Ashwani Kumar Mishra, J.

1. Conflict of opinion expressed by two learned Single Judges of this Court regarding maintainability of bail application before the High Court under Section 389 (2) Cr.P.C., in a criminal appeal pending before the court subordinate to it, has led to this matter being placed before us pursuant to the orders passed by Hon’ble the Chief Justice.

2. We have heard Sri Syed Imran Ibrahim and Sri Aushim Luthra, learned counsel for the applicant and Sri Pankaj Kumar Tripathi, learned AGA for the State.

3. Facts giving rise to the present proceedings lie in a narrow compass. Criminal proceedings came to be initiated against the present applicant under Section 409 IPC pursuant to FIR lodged in Case Crime No.519 of 2005, Police Station Kalyanpur, District Kanpur Nagar on 3.8.2005. On conclusion of investigation in this case the prosecution submitted charge-sheet whereafter trial commenced against the applicant in Case No.10596 of 2009. The proceedings culminated in conviction of applicant vide judgment dated 23.1.2016. On 27.1.2016 the applicant was sentenced to six years rigorous imprisonment alongwith fine of Rs.5,000/- and the default sentence was of simple imprisonment for one year. Aggrieved by his conviction and sentence the applicant preferred Criminal Appeal No.15 of 2016 (B.K. Tewari Vs. State of U.P.), under Section 409 IPC, arising out of case crime no. 519 of 2005, Police Station Kalyanpur, District Kanpur Nagar pending in the Court of learned Session Judge, Kanpur. An application for bail was also filed in the appeal which came to be rejected on 4.2.2016.

4. The order rejecting applicant’s bail application by the appellate court came to be challenged before this Court in Criminal Revision No.427 of 2016. This revision was got dismissed as not pressed with liberty to seek relief before the appropriate court.

5. Yet another Criminal Revision no.560 of 2016 was preferred by the applicant challenging the order dated 4.2.2016. The maintainability of this revision was questioned by the informant/State. The revisional court held that a criminal revision against the order passed on bail application whether allowing, rejecting or cancelling the bail is not amenable to revisional jurisdiction of this Court.

6. It is thereafter that the applicant invoked jurisdiction of this Court under Section 482 Cr.P.C. for challenging the order dated 4.2.2016. The applicant also sought release on bail by exercising the inherent powers of this Court under Section 482 Cr.P.C. This matter was heard by a learned Single Judge of this Court who passed a detailed order in the matter on 27.4.2016. The order of learned Single Judge is relevant for the present purposes and is reproduced hereinafter:-

”……….The background of filing this application appears to be this that the accused-applicant after facing the trial in the lower court was convicted to undergo sentence of imprisonment for 6 years along with a fine of Rs.5000/- vide judgment and order dated 23.01.2016 passed by the A.C.M.M., Court No.2, Kanpur Nagar. Aggrieved by this judgment of conviction the accused preferred a Criminal Appeal No.15 of 2016 in the Court of Sessions Judge, Kanpur Nagar. This appeal has been admitted and is still pending for its final adjudication. But the bail application which was moved on behalf of the accused in the lower appellate court after conviction, has been rejected vide order dated 4.2.2016. It is this order of rejection passed by the learned Sessions Judge, which has been challenged in this Court by way of filing this application u/s 482 of Cr.P.C.

As the filing of an application u/s 482 Cr.P.C. and thereby invoking the inherent jurisdiction of this Court with regard to the prayers made in this application i.e., the prayer of seeking the release of accused on bail and the other prayer of seeking the quashing of bail rejection order passed by the Sessions Judge, both looked quite anomalous, a query was raised by the Court in this