State of U.P. Vs. Poosu & ANR
 INSC 94 (2 April 1976)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
RAY, A.N. (CJ) BEG, M. HAMEEDULLAH SHINGAL, P.N.
CITATION: 1976 AIR 1750 1976 SCR (3)1005 1976
SCC (3) 1
CITATOR INFO :
RF 1990 SC1480 (77) R 1991 SC2176 (51)
Constitution of India, Articles 136 r/w
142-Re-arrest and detention of accused during pendency of State appeal against
acquittal, whether violative of Articles 14, 19(1) (a) to (g) and 21.
The accused-respondents were acquitted by the
High Court of capital offences. This Court granted the State of U.P. special
leave to appeal, and under Art. 136 read with Art. 142, issued orders directing
the re-arrest and detention of the accused. The orders were challenged by the
accused - respondents on the grounds that their acquittal and the findings on
which it is based remain fully in force during the pendency of the State
appeal, and that in the absence of a specific statutory provision, the Supreme
Court's inherent power under the Cr.P.C., or under Art. 142, cannot be invoked
to order the deprivation of the acquitted pension's liberty, and that such an
order word violate Articles 14 19(1)(a) to (6) and 21 of the Constitution.
On a reference of this question to the Constitution
HELD: This Court, while granting special
leave to appeal against an order of acquittal on a capital charge, is competent
by virtue of Art. 142 read with Art. 136, to exercise the same powers which the
High Court has under sec.
427 (re-enacted as Sec. 390 of the new
Cr.P.C. Of 1973). An order directing the re-arrest and detention of an accused-
respondent who has been acquitted by the High Court of a capital offence,
neither offends Art. 21 or any other fundamental right guaranteed in Part III
of the Constitution. nor deprives the accused-respondent of his liberty in a
manner otherwise than in accordance with procedure established by law.
[1008D-E, 1009A-B] State v. Badapalli Adi & Ors. I.L.R. 1955 Cuttack 589,
Empress of India v. Mangu ors. I.L.R. 2 All. 340; 'Queen v. Gohilt Tivari
I.L.R.  I Cal. 281: Queen Empress v. Gobardhan I.L.R.  9 All. 528;
Banna v. Methuen & ors.
2 Bens. 228; K. M. Nanavati v. State of
Maharashtra,  I Supp. S.C.R. 567 and The State v. Capt. Jagjit Singh
 3 S.C.R. 622, referred to.
CRIMINAL APPELLATE JURISDICTION Crl. Mis.
Petitions Nos. I and 243 of 1975.
(Appeal by special leave from the judgment
and order dated the 24-10-1973 of the Allahabad High Court in Criminal Appeal
No. 710 of 1973. Referred No. 34 of 1973) R.K. Garg, S. C. Agarwal, V. J.
Francis, for the petitioner in Cri. Mis. I and 243 of 1975.
O.P. Rana, for the petitioner/r. 2 in Cr.
M.P. No. 546/75.
D.P. Uniyal with o. P. Rana for the opposite
side in Crl. M. P. Nos. 1 and 243 of 1975.
Pramod Swarup, for respondent No. 2 in Cr. M.
P. No. 546 of 1975.
The Judgment of the Court was delivered by
SARKARIA, J. The common question referred to the Constitution Bench in these
two cases is: Whether the Supreme Court while granting 1006 Special Leave to
appeal under Article 136 of the Constitution, against an order of acquittal on
a capital charges has the power to issue a non bailable warrant for the arrest
and committal to prison of the accused respondent who had been acquitted by the
High Court? Mr. R. K. Garg, Counsel for the accused-respondents herein, col
tends that while the legislature has, in its wisdom, empowered the High Court
to cause an accused person to be arrested and committed to prison pending the
disposal of the appeal against acquittal, no such power has been conferred on
the Supreme Court by the Code or any other statute. According to Counsel, in
the absence of a specific statutory provision, the inherent power of the Court
to do complete justice under the Code or even under Article 142 of the
Constitution cannot be invoked to order deprivation of the liberty of a person
who has been found innocent and acquitted by the High Court on all the charges
against him because such an order would be violative of Articles 14, 19(1)(a)
to (g) and 21 of the Constitution. It is maintained that even after the grant
of special leave to appeal under Article 136 against an order of acquittal
passed by the High Court, the acquittal and the findings on which it is based,
remain fully in force during the pendency of appeal by the State. It is
contended that once it is ensured that the accused-respondent will be available
to submit himself to the final orders of this Court that may be passed in the
appeal under Article 136, the inherent powers of the Court under the Code or
under Article 142 exhaust themselves.
In support of his contentions" Counsel
has referred to State of U.P. v. Mohamed Nooh(1); and A. K. Gopalan v. State of
Madras(2); Lala Jairam Das and ors. v. King Emperor(3).
Sheo Swarup and ors. v. The King Emperor(4)
and M. a. Agarwal v. State of Maharashtra(5); Prem Chand Garg v. Excise
Commissioner, U.P. Allahabad(6).
As against this, Mr. Uniyal and Mr. O. P Rana
submit that by virtue of Article 142 read with Article 136 of the Constitution,
this Court pending disposal of an appeal against an order of acquittal, is
competent to exercise the same powers which are conferred on the High Court by
the Code of Criminal Procedure. In support of this contention, Mr. Rana has
referred to State of U.P. v. Deoman Vpadayaya(7); Abdul Rehman Mahomed Yusuf v.
Mahomed Haji Ahmed Agbotwale and anr.(8).
We are unable to accept the contentions
advanced by Mr. Garg.
To appreciate the point involved, it will be
useful to have a look at the provisions of s. 427 of the Code of Criminal
Procedure, 1898 and its historical perspective.
This section (which has been re-enacted as s.
390 of the new Code of 1973) provides:
'When are appeal is presented under s. 411A
subsection (2) or section 417, the High Court may issue a warrant directing
that the accused be arrested and brought before it 1007 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." It may be noted
that this provision was for the first time enacted in the Code of 1882. But
even before its enactment, the High Court " as a matter of judicial
practice, had the power, pending the appeal against an order of acquittal, to
secure the attendance of the accused respondent by bailable or non-bailable
warrants. As pointed out by , Panigrahi C. J. in State v. Badapalli Adi and ors
(1) "what was formerly the judicial practice received statutory
recognition in the year 1882 when this provision in s.427, Criminal Procedure
Code was introduced." In Empress of India v. Mangu and ors.(2) (which was
decided several " years before the addition of this provision in the
Code), a full Bench of Allahabad High Court held, that the High Court has the
power to cause the rearrest and detention of the accused in prison, pending an
appeal against an order of acquittal. To the same effect was the decision of
the Calcutta High Court in Queen v. Gobin Tewari (8). Again in Queen-Empress v.
Gobardhan(4), Sir John Edge, Chief Justice without laying down any inflexible
rule, emphasised that it is not desirable that, pending the appeal against
acquittal in a capital case, the prisoner should remain at large while his fate
is being discussed by the High Court. The ratio of this decision was followed
by a Division Bench of Orissa High Court in State v. Badapalli Adi and ors.
Viewed in this perspective, it is clear that
even before the enactment of this provision, the High Court had the power to
cause, in its discretion, the arrest and detention in prison of the
accused-respondent of or his enlargement on bail, pending disposal of the
appeal against his acquittal. This power was ancillary to and necessary for an
effective exercise of its jurisdiction in an appeal against an order of
acquittal, conferred on the High Court by the Code.
As far back as 1824, in the English case,
Bana v. Methuen and ors. Best J. following an older precedent enunciated the
"when an act of Parliament gives a
justice jurisdiction over an offence, it impliedly gives him a power to make
out a warrant, and bring before him any person charged with such offence".
This is the rationale of s.427. As soon as
the High Court on perusing a petition of appeal against an order of acquittal
considers that there is sufficient ground for interfering, and issuing process
to the respondent, his status as an accused person and the proceedings against
him, revive. The question of judging his guilt or innocence in respect of the
charge against him, once more becomes sub judice.
Similar is the position when the Supreme
Court, in its discretion, grants special leave to appeal under Article 136 of
the Constitution, against an order of acquittal passed by the High Court.
1008 Article 136 confers on the Supreme Court,
the same power which was vested in the Crown to grant special leave to appeal
to His Majesty-in-Council (which in practice meant the Judicial Committee of
the Privy Council in England) to convicted persons from India. This Article is
couched in very specious phraseology. The power under it can be exercised in
respect of "any judgment, decree, determination, sentence or order in any
cause, matter passed or made by any court or tribunal in the territory of
India." As pointed out by this Court in K. M. Nanavati v. State of
Maharashtra(l), "this wide and comprehensive power in respect of any
determination of any court or tribunal must carry with it the power to pass
orders incidental or ancillary to the exercise of that power." That is
why, Article 142 in equally extensive terms gives this Court power" to
make such order as is necessary for doing complete justice in any cause or
matter before it and any decree so passed or order so made shall be enforceable
throughout the territory of India". With the same end in view, clause (2)
of that Article (subject of course to law, if any, made by Parliament) gives
this Court "all and every power to make any order for the purpose of
securing the attendance of any person".
Thus there can be no doubt that this Court
while granting special leave to appeal against an order of acquittal on a
capital charge is competent by virtue of Article 142 read with Article 13, to
exercise the same powers which the High Court has under s. 427. Whether ill the
circumstances of the case" The attendance of the accused respondent can be
best secured by issuing a bailable warrant or non-bailable warrant is a matter
which rests entirely in the discretion of the Court. Although, the discretion
is exercised judicially, it is not possible to computerise and reduce into
immutable formulae the diverse considerations on the basis of which this
discretion is exercised. Broadly speaking, the Court would take into account
the various factors such as, "the nature and seriousness of the offence,
the character of the evidence, circumstances peculiar to the accused,
possibility of his absconding, tampering with evidence, larger interest of the
public and State"-see The State v. Capt. Jagjit Singh(2). In addition, the
Court may also take into consideration the period during which the proceedings
against the accused were pending in the courts below and the period which is
likely to elapse before the appeal comes up for final hearing before this
Court. In the context, it must be remembered that this over-riding discretionary
jurisdiction under Article 136 is invoked sparingly, in exceptional cases,
where the order of acquittal recorded by the High Court is perverse or clearly
erroneous and results in a gross miscarriage of justice.
1009 Nor do we find any merit in the
contention that an order directing the re-arrest and detention of an accused-
respondent who had been acquitted by the High Court of a capital offence, in
any way, offends Article 21 or any other fundamental right guaranteed in Part
III of the Constitution. Such an order is made by this Court in the exercise of
its plenary jurisdiction conferred by Articles 136 and 142 of the Constitution.
By no stretch of imagination can it be said that such an order deprives the
accused-respondent of his liberty in a manner otherwise than in accordance with
procedure established by law.
It is not necessary to burden this judgment
with a discussion of the rulings cited by Mr. Garg. Suffice it to say that the
facts of those cases were entirely different and they have no bearing on the
point in issue before us.
For all the foregoing reasons, we answer the
question posed at the commencement of this judgment in the affirmative and
dispose of the references accordingly.
Reference answered against the accused/respondents.