Andhra HC (Pre-Telangana)
Shaik Mullapalli Shamshad Begum And ... vs Public Prosecutor, High Court Of Andhra ... on 30 January, 2004
Equivalent citations: II(2004)DMC105
Bench: J. Chelameswar, B. Seshasayana Reddy
ORDER
1. By this application filed under Section 482, Cr.P.C., the petitioners seek directions to the Principal Sessions Judge, Kadapa to release them on bail in the event of their appearing before him in connection with Crl. A. No. 1283 of 2003, pending before this Court, which was filed by the State aggrieved by the judgment dated 11.2.2003, passed in S.C. No. 159 of 1999, acquitting them of the offences for which they were tried.
2. The petitioners who were tried for the offences under Sections 498-A, 302 read with. Section 34, Sections 304-B and 201 read with Section 34, I.P.C., were acquitted by the Principal Sessions Judge, Kadapa, in S.C. No. 159 of 1999, by his judgment dated 11.2.2003, Therefore, the State moved in appeal before this Court in Crl. A. No. 1283 of 2003. This Court, on 17.12.2003, while admitting the criminal appeal ordered issuance of warrants against the petitioners under Section 390, Cr.P.C. and directed the police authorities to produce them before the Principal Sessions Judge, Kadapa,
3. In pursuance of the above order, the Registry issued warrants directing the Superintendent of Police, Kadapa, to arrest the petitioners, and the relevant portion of the warrant, reads as follows:
"The Superintendent of Police, Cuddapah, Cuddapah District is directed to arrest the accused namely; (1) Shaik Mullapalli Shamshad Begum w/o Rahamathullah; (2) Shaik Mullaplli Kamathulla s/o Rahamathullah; (3) Shaik Mullapalli Tabrajullah s/o Rahamathullah; (4) Shaik Mullapalli Kareemulla; s/o Rahamathullah, wherever they are found and produce them before the Principal Sessions Judge, Kadapa. You are also further directed to return this warrant, as early as possible to this Court with a detailed report stating the manner in which it has been executed or if not executed the reasons why it has not been executed. Herein fail not."
4. It is the apprehension of the petitioners that in view of the order dated 17.12.2003 passed by this Court, either in the event of the police authorities executing the warrant and producing them before the Principal Sessions Judge, Kadapa, or the petitioners on their own volition appearing before him, there is likelihood of the Principal Sessions Judge, Kadapa, remanding them to judicial custody. The basis for the apprehension is that in pursuance of similar orders passed by this Court in Crl. A. No. 1263 of 2003, which was filed by the State against the order of acquittal, on the production of the accused therein before the concerned Principal Sessions Judge were remanded to custody. Therefore, they pray that directions be issued to the Principal Sessions Judge, kadapa, to release them on bail in the event of their being arrested and produced before him or on the petitioners appearing before him on their own volition in pursuance of the orders of this Court.
5. In fact, when this matter was taken up for hearing, Mr. C. Padmanabha Reddy and Mr. T. Bali Reddy, the learned Senior, Counsels appearing on behalf of the petitioners, brought to our notice that whenever the accused are arrested and produced before the Courts concerned or on the accused appearing before the said Courts in pursuance of the orders passed by this Court under Section 390, Cr.P.C., in the appeals filed by the State against acquittal of the accused, the Presiding Officers of the concerned Courts at least in some cases are remanding the accused to judicial custody, which practice is inconsistent with the fundamental right, namely right to life, enshrined under Article 21 of the Constitution of India, having regard to the fact that accused in such cases have already been acquitted after a full-fledged trial by the Trial Courts, they submitted that such remand to judicial custody of the accused, is certainly not in accordance with the scheme adumbrated in Section 390 of Cr.P.C.
6. In order to appreciate the aforementioned contention, it would be appropriate to make a reference to Section 390 of Cr.P.C. which reads as follows:
Section 390, Cr.P.C. Arrest of accused in appeal from acquittal: When an appeal is presented under Section 378, the High Court may issue a warrant directing that the accused be arrested and brought before it 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.
7. From the language of Section 390, it can be seen that whenever an appeal under Section 378 of the Criminal Procedure Code is presented against an order of acquittal, this Court may issue a warrant directing the accused to be arrested and brought before it or any other Subordinate Court, and the Court before which the accused is brought, may either commit him to prison or admit him to bail till the disposal of the appeal.
8. The issuance of warrant appears to be discretionary from the language of Section 390 of Cr.P.C. As a matter of consistent practice, this Court while admitting the appeals filed against orders of acquittals, has been directing issuance of warrant to the accused who are to be produced before the concerned Trial Court. The language used in Section 390, Cr.P.C. is not express about the nature of warrant to be issued. But the scheme of the Section is suggestive of the fact that the warrant to be issued by this Court is a non-bailable warrant as the section requires the accused to be brought before the Court, on execution of the warrant and further rests the discretion either to commit the accused to prison or admit him to bail.
9. As a matter of fact, whenever orders are being passed under Section 390 Cr.P.C., directing the issuance of warrant, normally, this Court has been directing the production of the concerned accused before the Court which tried them for the offences for which they were charged.
10. Once the accused are produced before the Trial Court, discretion is vested in the learned trial Judge before whom such production is made either to remand the accused to judicial custody or admit them to bail, The language of Section 390 of Cr.P.C. is very explicit and clear in this regard. But it must also be remembered that such discretion is required to be exercised in accordance with the established principles of law.
11. The basic principle that is always required to be kept in mind in such cases is that the accused were already subjected to trial and were found not guilty, and, therefore, until the finding is reversed the accused are entitled for their liberty which is a constitutionally guaranteed right under Article 21. But there may be exceptional cases where such constitutionally guaranteed right of liberty is required to be deprived, but we emphasize that only in exceptional cases, where the Court comes to the conclusion that the accused are required to be remanded and not released on bail, only in such cases, orders of remand should be passed and such order of remand should be supported by reasons, clear and cogent. For such an order takes away the liberty of an accused, who was found by one Court not guilty of the offences alleged against him. The orders of remand should not be made mechanically and as a matter of rule.
12. In fact, the learned public prosecutor brought to our notice a decision of the Supreme Court in State of U.P. v. Poosu and Anr., A.I.R. 1976 S.C. 1750. The Supreme Court while considering the appeal against an order of acquittal, in the context of its jurisdiction under Article 136 of the Constitution of India, observed that depending on the facts and circumstances of each and every case either bailable or non-bailable warrant to the accused-respondents who were already acquitted by the High Court should be issued. It is required to be noticed that the discretion of the Supreme Court either to issue a bailable or non-bailable warrant is not fettered by the language of Article 136 of the Constitution of India.
13. Whereas the language of Section 390, Cr.P.C. leaves no scope to this Court to issue a bailable warrant.
14. It is also brought to the notice of this Court that in some cases where on information of the admission of the appeal against acquittal when the accused appeared voluntarily before the concerned Trial Court before whom they are otherwise required to be produced if the warrant under Section 390, Cr.P.C. were to be executed, the Trial Courts are declining to consider the possibility of enlarging such accused on bail on the ground that the warrant had not yet been executed. Such practice, in our view, is not a correct practice. The purpose behind issuing warrant as per provisions of Section 390 of Cr.P.C., appears to be that in the event for the High Court reversing the order of the acquittal in appeal, steps are necessarily required to be taken to apprehend the accused for serving the sentence. In order to facilitate the execution of the sentence the procedure under Section 390 of Cr.P.C. is designed, as otherwise, the accused might or might not be available for serving the sentence in view of the fact that the accused is already acquitted and there are no fetters placed on the movement of the accused either within the country or outside. Therefore, in our view in any case where an order under Section 390, Cr.P.C. directing the issuance of warrant is made, there is nothing in law, which prevents the accused to voluntarily appear and surrender before the Court. In the event of such voluntary surrender or appearance before the concerned Trial Court, that Court shall consider enlarging such surrendered accused on bail in accordance with law.