Supreme Court - Daily Orders
Satnarayan Yadav@Sattan Yadav vs The State Of Bihar on 29 November, 2021
Bench: K.M. Joseph, Pamidighantam Sri Narasimha
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1512 OF 2021
(ARISING FROM SPECIAL LEAVE TO APPEAL (CRIMINAL) NO.9087 OF 2018)
SATNARAYAN YADAV @ SATTAN YADAV APPELLANT(S)
VERSUS
STATE OF BIHAR & ANR. RESPONDENT(S)
O R D E R
Leave granted.
The appellant was convicted for offense under Sections 302 read with 34 of the Indian Penal Code, 1860 (for brevity “IPC) and was sentenced to life imprisonment by judgment and order dated 02/10.05.2018. The appellant filed an appeal before the High Court as Crl. Appeal (DB) No.631/2018. The High Court of Judicature at Patna was closed for summer vacation. The appellant moved an application under Section 389(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C’) along with the appeal. On his application under Section 389 of Cr.P.C., a learned single Judge, was persuaded to pass an order dated 30.05.2018 which reads Signature Not Verified Digitally signed by JAGDISH KUMAR Date: 2021.12.04 as follow:
12:40:19 IST Reason:
“Heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. 2 This appeal is admitted for hearing.
Call for the Lower Court Records.
It appears that out of fifteen accused persons twelve have been acquitted by the same impugned judgment. Allegation against the appellant is that on the order of the appellant firing was made by co-accused Lalu Yadav, which resulted in death of Ramjit Prasad.
Considering the aforesaid facts, I am of the view that the sentences passed against the appellant Satnarayan yadav @ Sattan Yadav shall remain under suspension till disposal of this appeal.
Hence, let the appellant, named above, during the pendency of this appeal, be released on bail on furnishing bail bond of Rs.20,000/- (Twenty thousand) with two sureties, each of the like amount, to the satisfaction of learned 6th Additional Sessions Judge, Bhojpur at Ara, in connection with Sessions Trial No.60 of 2016, arising out of Bihiya P.S. Case no.256 of 2014.” Thereafter, the informant filed an application seeking cancellation of aforesaid order granting bail the order passed on 30.05.2018. It is on this application that the impugned order has been passed by the Division Bench of the High Court. The Division Bench in its order finds as follows:-
1. Rejecting the contention of the appellant, it is found that once a victim is found entitled to file an appeal against the acquittal under Section 372 of the Cr.P.C. and also noticing that the High Court has inherent power to correct any order, the application filed by the informant was found maintainable.
2. It is found after examining the provisions of the High Court Rules that under Chapter II, Rule-I of the High Court Rules (XV)
(d)-an appeal, revision or reference in which a substantive 3 sentence of more than ten years’ imprisonment has been passed is to be considered by a Division Bench. It is found that a Single Vacation Bench is not entitled to pass an order in appeal, in which imprisonment for life or imprisonment for more than ten years is awarded.
3. Thereafter, referring to Rule-4 of Chapter II and Rule-10 of Chapter II of High Court Rules, the High Court finds as follow:-
“11. On examination of aforesaid provisions, it is evident that a Single Vacation Judge is entitled to pass only an interim order during vacation. Meaning thereby that if an interim bail is granted by a Vacation Judge, it has to be confirmed by a regular Bench i.e. Division Bench, if matter pertains to be adjudicated by the Division Bench.”
4. Still further it is found that an order granting bail by the learned Vacation Judge, no opportunity was given to the Public Prosecutor to file any written objection contemplated under Section 389 of the Cr.P.C.. It was found that learned Vacation Bench has passed an order granting final bail. It was contrary to Rule-4 .
5. It is lastly found that the order of the learned Vacation Judge disclosed a jurisdictional error rendering it a fit case for the Division Bench of the High Court to exercise inherent jurisdiction. On the aforesaid basis, the order 30.05.2018 was cancelled and the appellant was directed to surrender before the Court.
6. Upon the Special Leave Petition being filed out of which Criminal Appeal arises, this Court, while issuing notice on 4 12.11.2018, directed that in the meantime, the impugned order shall remain stayed.
7. We heard Mr. Rishi Malhotra, learned counsel on behalf of the appellant, Mr. Jitendera Kumar, learned counsel on behalf of the informant and Ms. Bihu Sharma, learned counsel on behalf of the State.
8. Mr. Rishi Malhotra, learned counsel for the appellant would point out that if the informant was aggrieved by the order passed by the learned Vacation Bench, he could have challenged the same before the appropriate forum. He supplements this line of argument by pointing out that under the second proviso to Section 389 of the Cr.P.C. an application for cancellation of bail lies only at the instance of the Public Prosecutor. The Public Prosecutor has not moved for cancellation of the bail. He further points out that as per the roster which was allocated to the learned Vacation Judge he had jurisdiction to entertain the application as was done in this regard. We drew our attention at Annexure P-3 of the paper book, wherein the roster reads inter alia as follows:-
“REVISED CONSTITUTION OF VACATION BENCHES OF PATNA HIGH COURT, PATNA Second Week 28.05.2018 (Monday) to 31.08.2018 (Thurday)” Per-contra, learned counsel for the informant would point out the patent illegality which is committed in not following the dictate of Section 389 of the Cr.P.C. and justified the Division Bench order. The learned counsel for the State sought to justify the order with reference to the merits of the matter. 5
9. This is a matter where the appellant stood convicted by the Trial Court after the trial. He stands convicted of offences under Section 302 read with Section 34, inter alia, of the IPC. Section 389 of the Cr.P.C. deals with the suspension of sentence, it reads as under:-
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 releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than then years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:
Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.] (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 thereto.
(3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-
(i) where such person, being on bail, is
sentenced to imprisonment for a term not
exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for 6 refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-
section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(4) When 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 for which he is so sentenced.” The first thing we must observe in regard to this case is that be it a Vacation Court or a Regular Bench which hears an application under Section 389 of Cr.P.C. the powers are trammeled by the requirement stipulated under Section 389 of Cr.P.C. In other words, if a person has been convicted of an offence punishable with death or imprisonment for life or imprisonment for a term not less than 10 years, the Court is obliged to give an opportunity to the Public Prosecutor for showing cause in writing against the release of the appellant. That this is the procedure to be followed is no longer res-integra and we may only advert to the decision of this Court in (2014) 9 SCC 177, Atul Tripathi vs. State of U.P. and Ors. Therefore, there can be no quarrel with the proposition that the grant of bail in a case covered by the first proviso to Section 389 of the Cr.P.C. is a matter which must be preceded by compliance with what is provided under Section 389 of the Cr.P.C. In the facts of this case, as found by the Division Bench in the impugned order, the learned Vacation Bench has not followed the said procedure. To that extent, there can be no dispute about the correctness of the order passed by the High Court. 7 As far as the power of the learned Vacation Judge is concerned, it has been discussed by the Division Bench in the impugned order in the manner we have found. We may only observe that even if it is a Vacation Bench ordinarily matters of urgency alone are considered during the Vacation. In the case of conviction, particularly, where the procedure under first proviso of Section 389 is to be followed, it would be appropriate that the Regular Bench which is empowered deals an application under Section 389 of Cr.P.C. The power under Section 389 of the Cr.P.C. is not be confused with an application for bail under Section 439 of Cr.P.C. which is pointed out by the learned counsel for the appellant as being part of the roster. While it may be true that criminal appeal of the nature covered by the first proviso of Section 389 of Cr.P.C and an application for suspending a sentence in an appeal covered by first proviso of Section 389 of Cr.P.C. may be a matter to be covered it is to be considered carefully with reference to the cardinal and indispensable requirement of following the mandate of Section 389 of Cr.P.C. Ordinarily, it may not be infused with urgency in such cases. However, we refrain from stating anything further.
As far as this case is concerned, we have not been persuaded by the learned counsel for the appellant to find that a person like the informant cannot maintain application being aggrieved by an order granting bail.
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As already noticed by us, the impugned order directing the appellant to surrender has been stayed since 2018. For more than three years the appellant has remained enlarged on bail. We would think that the proper course to adopt in this case to request the High Court to consider the application for suspension of sentence and for bail filed by the appellant after following the procedure under Section 389 of Cr.P.C. as declared by this Court and to allow the interim order passed by this Court to continue till the decision is taken on its own merits.
Accordingly, to the extent that the High Court set aside the order granting bail and directing the appellant to surrender on the ground that the learned Vacation Judge had not followed the procedure under Section 389 of Cr.P.C., we are inclined to set aside the impugned order.
The appeal is allowed in the following manner. The impugned order is set aside in view of the observations which we have made hereinbefore. We request the High Court to take up the application for suspension of sentence filed by the appellant and to take a decision thereon, needless to say, after compliance with the requirement under Section 389 of Cr.P.C. We make it clear that we have not expressed any view regarding of the merits of the appellant claim for bail which will be considered on its own merits.
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We request the High Court to take a decision as early as possible and till such time as a decision is taken, the interim order passed by this Court will continue to hold good.
Pending application(s), if any, stands disposed of.
…………………………………………J. [K.M. JOSEPH] …………………………………………J. [PAMIDIGHANTAM SRI NARASIMHA] New Delhi 29th November, 2021 10 ITEM NO.28 Court 10 (Video Conferencing) SECTION II-A S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Crl.) No(s). 9087/2018 (Arising out of impugned final judgment and order dated 17-09-2018 in IA No. 2225/2018 in Crl. Appeal (DB) No.631/2018 passed by the High Court Of Judicature At Patna) SATNARAYAN YADAV @ SATTAN YADAV Petitioner(s) VERSUS STATE OF BIHAR & ANR. Respondent(s) Date : 29-11-2021 This petition was called on for hearing today. CORAM : HON'BLE MR. JUSTICE K.M. JOSEPH HON'BLE MR. JUSTICE PAMIDIGHANTAM SRI NARASIMHA For Petitioner(s) Mr. Rishi Malhotra, AOR For Respondent(s) Mr. Abhinav Mukerji, AOR Mrs. Bihu Shamra, Adv.
Ms. Pratishtha Vij, Adv.
Mr. Akshay C. Shrivastava, Adv.
Mr. Kundan Kumar Mishra, AOR UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeal is allowed in terms of the signed order. Pending application(s), if any, stands disposed of.
(JAGDISH KUMAR) (RENU KAPOOR)
COURT MASTER (SH) BRANCH OFFICER
(Signed order is placed on the file)