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Report No. 268

Chapter - IX

Bail Pending Appeal

9.1 The power to award bail post-conviction is not very wide. When an order under s. 389 of Cr.P.C. is passed the sentence is not set aside, but merely suspended or kept in abeyance and for all intents and purposes the appellant remains a convict. This provision was inserted because when an appeal is filed, the conviction needs to be re-judged and pending such decision, if it so happens that the appellant has undergone some part of the sentence, and ultimately is adjudged as innocent, his suffering becomes irreversible. In case of Kashmira Singh v. State of Punjab227 the Supreme Court stated that it would be unfair to keep the convict locked up for years due to the inability to dispose off the appeal in time, especially when the conviction is reversed as it contrives an irreparable harm to the individual.

Therefore, suspension of the sentence must be accompanied by reasons recorded by the court, this requirement for justifying the suspension of sentence indicate that there must be a careful consideration of the relevant factors and the order directing the suspension of sentence must not be cursory in nature.228 Further, the Supreme Court in Rama Narang v. Ramesh Narang229 held that the sub-section (1) of s. 389 Cr.P.C. confers power not only to suspend the operation of sentence appealed against but also grant bail with or without sureties if the person accused of an offence is in confinement

9.2 This view has been reiterated by the Supreme court in various other cases230, all these decisions have also cautioned and clarified that such power should be exercised only in exceptional circumstances where the failure to stay the sentence, would lead to injustice and irreversible consequences231. It must be remembered that bail pending appeal is not a right and is dependent on the discretionary powers of the Court232 as the right of the convict to bail is subordinate to the public peace and the well-being of the society. The situation of a post-conviction bail is different than the bail at the time of trial. Thus, it is up to the convict to point out glaring infirmities in the case of prosecution, which would take out the vital aspects, touching the very substratum of the case of the prosecution233.

Thus, in appeal against conviction the appellate court must decide if the appellant-convict stands a fair chance of acquittal in light of the case presented by the appellant. Further, as required by s. 389 of the Cr.P.C, the public prosecutor must be provided with both the notice of the bail application and also an opportunity to oppose bail in writing when the punishment is more than ten years of imprisonment. Although there is no provision that allows any opportunity to be given to any person other than the Public Prosecutor in deciding an application under s. 389 of the Cr.P.C, the High Court has the power to allow the complainant or the victim of the crime to intervene and oppose the bail pending appeal in exercise of its power under s. 482 Cr.P.C.

9.3 It is required to be noted that the bail granted under this section pending an appeal can be cancelled under s. 439 (2) Cr.P.C. The court also has the power to impose necessary conditions on the appellant-convict to ensure his presence in the proceedings of the appellate court, otherwise it would frustrate the process of justice. An Explanation must be added under s. 389 (3) of Cr.P.C to the effect that the court must ascertain to itself of the fact that the appellant-accused is not filing an appeal with the intention to delay and there is a substantial likelihood that the judgment would be reversed on appeal in favor of the appellant-convict.

Conversely, another critical provision on bail is s. 437A Cr.P.C which seeks to secure the attendance of a person accused of an offence before the higher appellate court when such accused is acquitted and the decision may be appealed.234 The section provides that before conclusion of the trial and disposal of the appeal, the court trying the offence or the appellate court, as the case may be, shall require the accused person to execute bail bonds with sureties, to appear before the higher court as and when such court issues notice in respect of any appeal or petition filed against the judgment of the respective court and such bond shall be in force for six months.

9.4 This provision poses a problem because the person accused of an offence is not entitled to release even after an acquittal by a trial court, unless and until he furnishes a bail bond, with sureties. It is important to note that the Supreme Court has stated time and again that once a person is acquitted of an offence the presumption of innocence is strengthened and makes a strong case to be released from confinement. However, under s. 437A of Cr.P.C, where the person is found innocent but is not able to furnish sureties, the section requires that the person should not be released. Public Interest Litigations and Writ Petitions have been filed against the validity of this provision in Delhi High Court, Bombay High Court and Allahabad High Court, which are currently pending before these courts.235

9.5 A Division Bench of Gujarat High Court in State of Gujarat v Harish Laxman Solanki,236 expressed its anguish on inaction on the part of the Central Government as well as the state authorities that where the appeal is preferred against the order of acquittal, the acquitted accused remains untraceable and it is a difficult task for the police to search such a person. Therefore, the Court directed as under:

"Under the circumstances, to balance the interests of the accused on the one hand and the society on the other, it would be quite reasonable if we direct the sub-ordinate Courts that while accepting the bail and bail-bonds for securing attendance of the accused before the appellate Court, the same should be taken for a further period of 12 months from the date of order of acquittal we deem it proper to direct the Office to immediately forward a copy of this judgment to [i] Chairman, Law Commission, New Delhi and [ii] The Secretary, Ministry of Law, Justice & Company Affairs, Government of India, New Delhi for urgent consideration and necessary action."

9.6 In pursuance of the said reference, the matter was considered by the Law Commission of India in its 154th Report237, wherein recommendations made are as under:

"The proposed section 437A may be on the following lines:

(1) Before conclusion of the trial and before disposal of the appeal, the trial court or the appellate court; as the case may be, require the accused to execute bail bonds with sureties, which shall be in force for twelve months, undertaking to appear before the higher court as and when such court issues notice in respect of any appeal or petition filed against the judgement of those respective courts;

(2) If such accused fails to appear, the bond stands forfeited and the procedure under section 446 shall be applicable. On the same lines Form 45 has to be amended."

9.7 The report makes it clear that the only reason for the recommendation had been that it becomes difficult to serve the notice of appeal in case the appellate court wants to examine the judgment of acquittal and the appeal remains pending after admission, as the presence of the person so acquitted is not secured inspite the issuance of non-bailable warrant.

9.8 This recommendation of the Law Commission was accepted and the Cr.P.C was amended vide Act No. 5 of 2009 w.e.f. 31.12.2009. The said amendment had been made without taking note of the Full Bench judgment of the Gujarat High Court in Omprakash Tekchand Batra & Anr. v. State Of Gujarat,238 wherein the Full Bench, after taking note of various provisions contained in the Cr.P.C. and the Constitution of India held that:

"In the same way there is another important provision contained in Sub-section (7) of Section 437, which provides that if, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance "to hear judgment delivered.

Thus, when the law has provided in these provisions for a statutory release of an accused tried by a Magistrate if the trial is not over in six months and even for release without surety in case where the trial is concluded but the judgment is not yet delivered and when the Court is of the opinion that there are reasonable grounds for believing that the accused is not guilty of the offence, it would be a travesty of justice to insist on release of the person who has been found to be not guilty and acquitted, on his furnishing a bail bond.

In our opinion therefore the mandatory provisions of Section 354(1)(d) must govern the field in all cases of acquittal and the accused who is acquitted is entitled to be set at liberty without any fetter of being asked to furnish a bail or bail-bond for his release and any contrary direction would be ex-facie without jurisdiction and void We therefore hold that no directions as were issued by a Division Bench in State of Gujarat v. H.L. Solanki reported in (1994) 35(1) Guj LR 581, could have been issued under Section 482 of the Code by the High Court to the subordinate Courts to the effect that when the acquittal orders were made, the accused should be required to furnish bail and bail bonds for securing their attendance before the appellate Court for a period of 12 months from the date of the order of acquittal or for any period whatsoever.

In this view of the matter, we are constained to overrule the ratio of the decision in H.L. Solanki's case (supra). The necessary corollary of this decision would be that the conditions which have been imposed on in these three matters by the trial Courts requiring the acquitted petitioners be released only on their furnishing bail, are unconstitutional, illegal and void ab-initio and cannot therefore be sustained. No such conditions or fetters could have been imposed by the trial Court."

(emphasis added)

9.9 In these cases the trial court after passing the judgment and order of acquittal had taken the personal bond and sureties as had been directed by the Division Bench in Harish Solanki (supra).

9.10 A Division Bench of Allahabad High court in Nannu and others v. State of U.P.239 in CRIMINAL APPEAL U/S 374 CR.P.C. No. - 5201 of 2007 decided on 13.02.2012 considered both the judgments of the Gujarat High Court as well as the 154th Report of the Law Commission (supra) and without going into the question of Constitutional validity of s. 437A Cr.P.C. made the following suggestion:

"96. Generally, bail is granted during pendency of trial though in some cases it is refused. Similar is the case in appeal against the conviction. Perhaps, a better workable procedure would be that whenever bail is granted during investigation or at the trial or appellate stage, a clause may be added in the bail bonds incorporating terms and condition of section 437-A. This will obviate the execution of fresh bail bonds for the second time and unnecessary duplication of paper would be saved.

101. Section 437-A CrPC also requires some clarification. Take a case, where bail was not granted or granted but the accused/ convict could not be released on bail as he could not furnish sureties, or a case where accused/ convict is in jail and in pursuance of requiring bail bonds to be furnished under section 437-A CrPC states that he can not furnish sureties. Does it mean that the trial will not be conducted or appeal will not be heard, or in case he is acquitted then would not be released for six months? Perhaps, in such situation personal bond should suffice. But the existing language of section 437-A CrPC does not permit it."

9.11 The Court erred in analysing the judgment of the Full Bench of the Gujarat High court observing that the Full Bench held that the conditions so imposed might be unconstitutional, though the Full Bench had declared them unconstitutional, illegal and void ab-initio.

9.12 In our deliberations a large number of organizations, advocates have urged for the deletion of this provision in toto in light of the Full Bench judgment of the Gujarat High Court (referred to hereinabove). However, to facilitate securing the presence of the person so acquitted his personal bond may be sufficient. It has been argued that in such an eventuality the other sureties should not be fastened with any kind of liability. In view thereof, the Commission is of the opinion that the section 437A Cr.P.C. be amended accordingly. In accordance with the aforementioned recommendations, Form. 45A shall be inserted in the second schedule of Cr.P.C. Further Form 45 shall not be used for the purposes of this section.

Amendments to Criminal Procedure Code, 1973 - Provisions relating to Bail Back

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