Supreme Court clarifies procedure for bail of convicts in serious offenses: Ali Ahmad vs. State of Bihar (2021)

Introduction

Date of the Judgment: November 12, 2021

Citation: 2021 INSC 750

Judges: K.M. Joseph, J., Pamidighantam Sri Narasimha, J.

Can a High Court grant bail to a person convicted of a serious offense like murder without properly considering the objections of the Public Prosecutor? The Supreme Court of India recently addressed this critical question in a case concerning the interpretation and application of Section 389 of the Code of Criminal Procedure, 1973 (Cr.P.C.). This judgment clarifies the mandatory procedure that must be followed when a convicted person seeks suspension of sentence and bail during the pendency of their appeal. The bench comprised Justices K.M. Joseph and Pamidighantam Sri Narasimha.

Case Background

The appellant, Ali Ahmad, was the complainant in a case where the second respondents were convicted by the trial court for offenses including Section 302 of the Indian Penal Code, 1860 (IPC), and sentenced to life imprisonment. The second respondents then filed criminal appeals before the High Court of Judicature at Patna in 2019, challenging their conviction. Subsequently, they also filed applications under Section 389 of the Cr.P.C., seeking suspension of their sentence and grant of bail. The High Court, through the impugned orders, granted bail to the second respondents. This led to the current appeals before the Supreme Court.

Timeline

Course of Proceedings

The trial court convicted the second respondents for offenses including Section 302 of the Indian Penal Code, 1860, and sentenced them to life imprisonment. The second respondents then filed criminal appeals before the High Court of Judicature at Patna. During the pendency of their appeals, they sought suspension of their sentence and grant of bail under Section 389 of the Cr.P.C. The High Court granted their bail applications, which were challenged by the complainant, Ali Ahmad, before the Supreme Court.

Legal Framework

The core legal provision at the heart of this case is Section 389 of the Code of Criminal Procedure, 1973. This section deals with the suspension of sentence pending appeal and the release of the appellant on bail.

The first proviso to Section 389(1) of the Cr.P.C. mandates that when an appellant is convicted of an offense punishable with death, life imprisonment, or imprisonment for a term of ten years or more, the appellate court must give the Public Prosecutor an opportunity to show cause in writing against the release of the appellant on bail.

The second proviso to Section 389(1) of the Cr.P.C. allows the Public Prosecutor to apply for the cancellation of bail granted under this section.

The Supreme Court has observed that this provision is intended to ensure transparency, prevent collusion, and ensure that the court is properly assisted by the State with true and correct facts with regard to the relevant considerations for grant of bail in respect of serious offences, at the post conviction stage.

The relevant portions of Section 389 of the Code of Criminal Procedure, 1973 are:

“389. Suspension of sentence pending the appeal; release of appellant on bail. –
(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
Provided that the Appellate Court shall, before making an order under this section for the suspension of the sentence, have regard to-
(i) the nature of the offence of which he has been convicted;
(ii) the sentence awarded to him;
(iii) the circumstances in which the offence was committed;
(iv) the likelihood of the appellant absconding;
(v) the impact of the release of the appellant on the safety and security of the society;
(vi) the possibility of the appellant tampering with the evidence or witnesses;
(vii) the possibility of the appellant committing similar offences while on bail;
and shall give the Public Prosecutor a reasonable opportunity of being heard in the matter.
Provided further that the Appellate Court may, for any special reason to be recorded by it in writing, release the appellant on bail, notwithstanding the provisions of the first proviso.
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate to it.
(3) If the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term of imprisonment.”

Arguments

Appellant’s Arguments:

• The appellant’s counsel argued that the High Court failed to follow the mandatory procedure under the first proviso of Section 389 of the Cr.P.C.
  • Specifically, the Public Prosecutor was not given a proper opportunity to show cause in writing against the release of the convicted individuals.
  • The appellant relied on the judgment in Atul Tripathi v. State of Uttar Pradesh and Others (2014) 9 SCC 177, which emphasized the necessity of a written objection from the Public Prosecutor.
• The appellant contended that an application for suspension of sentence under Section 389 Cr.P.C. stands on a different footing from an application for bail under Section 439 Cr.P.C., especially in cases involving serious offenses like Section 302 IPC.
  • The appellant cited Kashmira Singh v. State of Punjab AIR 1977 SC 2147, to support the principle that bail after conviction for serious offenses requires a higher threshold.
• The appellant emphasized that the High Court’s order did not provide adequate reasoning to justify the grant of bail, particularly considering the trial court’s conviction of the respondents for serious offenses.

Respondents’ Arguments:

• The respondents’ counsel argued that the Public Prosecutor had the right to invoke the second proviso of Section 389 Cr.P.C. to seek cancellation of bail, which they did not do.
• The respondents contended that the delay in the matter was not attributable to them, as they had been out on bail for nearly two years.

State’s Arguments:

• The State’s counsel supported the appellant’s position, acknowledging that the procedure under the first proviso of Section 389 Cr.P.C. was not followed.

Summary of Arguments

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the primary issue before the Court was:

1. Whether the High Court followed the correct procedure under Section 389 of the Code of Criminal Procedure, 1973, while granting bail to the convicted respondents.

Treatment of the Issue by the Court

Authorities

Cases Relied Upon:

• Atul Tripathi v. State of Uttar Pradesh and Others (2014) 9 SCC 177 – Supreme Court of India.
  • This case was relied upon to emphasize the mandatory requirement of providing the Public Prosecutor with an opportunity to show cause in writing against the release of a convicted person.
• Kashmira Singh v. State of Punjab AIR 1977 SC 2147 – Supreme Court of India.
  • This case was cited to highlight that the grant of bail post-conviction, especially in serious offenses, stands on a different footing than the grant of bail to an undertrial.

Legal Provisions Considered:

• Section 389 of the Code of Criminal Procedure, 1973.
  • The Court analyzed the first proviso of Section 389(1), emphasizing the mandatory procedure to be followed before granting bail to a convict.
  • The Court clarified that the second proviso of Section 389(1) relates to cancellation of bail and not the initial grant of bail.

Authorities Considered by the Court

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court followed the judgment in Atul Tripathi v. State of Uttar Pradesh and Others (2014) 9 SCC 177 to emphasize the mandatory nature of the procedure laid down in the first proviso to Section 389(1) of the Cr.P.C., requiring the Public Prosecutor to be given an opportunity to show cause in writing against the release of a convicted person.
• The Supreme Court also followed the principle laid down in Kashmira Singh v. State of Punjab AIR 1977 SC 2147, which states that the grant of bail post-conviction is different from the grant of bail to an undertrial.

What weighed in the mind of the Court?

The Supreme Court’s reasoning was primarily driven by the need to ensure that the mandatory procedure under Section 389 of the Cr.P.C. is followed, particularly in cases involving serious offenses. The Court emphasized the importance of providing the Public Prosecutor with a proper opportunity to object in writing, as mandated by the first proviso. The Court also highlighted that the grant of bail post-conviction requires a higher threshold and that the High Court’s order should contain adequate reasoning.

Fact:Law Ratio:

The Court’s decision was more heavily influenced by legal considerations (70%) than by the factual aspects of the case (30%). The primary focus was on the procedural requirements of Section 389 of the Cr.P.C. and the legal precedents set by previous Supreme Court judgments.

Logical Reasoning

Judgment Analysis

The Supreme Court held that the High Court’s orders granting bail to the second respondents were flawed because they did not adhere to the mandatory procedure outlined in the first proviso of Section 389(1) of the Cr.P.C. The Court emphasized that the Public Prosecutor must be given a proper opportunity to show cause in writing against the release of a convicted person, especially in cases involving serious offenses.

The Court clarified that the second proviso of Section 389(1) pertains to the cancellation of bail and not the initial grant of bail. The Court also noted that the grant of bail post-conviction stands on a different footing than the grant of bail to an undertrial.

The Court observed that the High Court’s orders did not provide adequate reasoning to justify the grant of bail, especially considering the trial court’s conviction of the respondents for serious offenses.

The Supreme Court set aside the impugned orders and directed the High Court to reconsider the bail applications, ensuring that the procedure under Section 389, including the first proviso, is followed.

The Supreme Court also directed that the second respondents need not surrender during the reconsideration of their applications and that their fate will depend on the outcome of the High Court’s consideration.

The court stated, “Every law is intended to be followed.”

The court also stated, “Grant of bail post conviction clearly stands on a different footing from grant of bail to an undertrial prisoner under Section 439.”

The court further stated, “The mandate of the first proviso must be observed in its own right.”

Key Takeaways

• The Supreme Court has reiterated the mandatory nature of the procedure under the first proviso of Section 389(1) of the Cr.P.C.
• High Courts must ensure that the Public Prosecutor is given a proper opportunity to show cause in writing before granting bail to a convicted person in serious offenses.
• The grant of bail post-conviction requires a higher threshold compared to the grant of bail to an undertrial.
• Orders granting bail must contain adequate reasoning, especially when the trial court has convicted the individual for serious offenses.
• The second proviso of Section 389(1) relates to the cancellation of bail, not the initial grant of bail.

Directions

The Supreme Court directed the High Court of Judicature at Patna to:

• Reconsider the applications filed by the second respondents for suspension of sentence and bail.
• Follow the procedure laid down in Section 389 of the Cr.P.C., including the first proviso.
• Dispose of the applications within a period of six weeks from the date a copy of the order is produced before it.
• The second respondents need not surrender during the consideration of the applications.

Specific Amendments Analysis

There is no discussion of any specific amendments in the judgment.

Development of Law

The ratio decidendi of this case is that the High Court must strictly adhere to the procedure laid down in the first proviso of Section 389(1) of the Cr.P.C. when considering bail applications of convicted persons, especially in serious offenses. This judgment reinforces the importance of providing the Public Prosecutor with an opportunity to file objections in writing. The judgment also clarifies that the grant of bail post-conviction requires a higher threshold. The Supreme Court has not changed the previous position of law, but has clarified the procedure that needs to be followed.

Conclusion

In Ali Ahmad vs. The State of Bihar & Anr., the Supreme Court emphasized the mandatory nature of the procedure under Section 389 of the Cr.P.C., particularly the requirement to provide the Public Prosecutor with an opportunity to object in writing before granting bail to convicts in serious offenses. The Court set aside the High Court’s orders and directed it to reconsider the bail applications while adhering to the prescribed procedure. This judgment serves as a reminder of the importance of following legal procedures and ensuring fairness in the justice system.