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1 - 8 of 8 (2.62 seconds)Section 302 in The Indian Penal Code, 1860 [Entire Act]
The Indian Penal Code, 1860
Section 439 in The Code of Criminal Procedure, 1973 [Entire Act]
Section 302 in The Code of Criminal Procedure, 1973 [Entire Act]
Kashmira Singh vs The State Of Punjab on 2 September, 1977
In
other words, he drew our attention to the principle which has
been enunciated by this Court in the judgment reported in
Kashmira Singh v. State of Punjab AIR 1977 SC 2147. He would
point out that this principle has been followed in later
judgments as well. He would point out that the order does
not disclose any reasoning as to justify grant of bail in a
case where the trial Court has after consideration of the
evidence convicted the second respondent in both the cases of
the offences under Section 302 included.
(6) Per contra, Shri Gaurav Agrawal, learned counsel
appearing on behalf of the second respondent, would point out
that the public prosecutor has a right to invoke the second
proviso in Section 389 which he has not done. It is not as
if he questions the locus of the appellant to impugn the
order but he would submit that on the facts, no case is made
out for interference. He further points out that pursuant to
the impugned orders, the second respondent in both the cases,
have been out on bail for nearly two years. The appellant
joins issue with the second respondent on the last contention
which is that the second respondents have been out on bail by
pointing out that the appellant has followed up the matter as
expeditiously as he could. Letter was circulated by the
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CRL. A. NO. 1374/2021 (@ SLP (Crl.) No. 5061/2020) etc.
second respondent. The case was thereafter adjourned and the
case could be taken up only today and it is not the fault of
the appellant. It is further pointed out that the appellant
cannot be blamed and this is a case where the impugned orders
do not show any reasoning besides being afflicted with legal
flaw which has been referred to viz., not following the
procedure provided for in the first proviso.
(7) We have also heard the learned counsel for the State as
already noted.
Atul Tripathi vs State Of U.P. & Anr on 22 July, 2014
(8) It is indeed true that with the introduction of the
first proviso to section 389 the law giver has stipulated a
particular procedure to be followed in a matter of releasing
a person who stands convicted of serious offences as are
indicated thereunder. Every law is intended to be followed.
The fact that it is intended to be followed has been taken
note of by this Court in judgment reported in Atul Tripathi
(supra). It is despite this that, in the impugned orders, it
appears that the mandate of the first proviso has not been
followed. Grant of bail post conviction clearly stands on a
different footing from grant of bail to an undertrial
prisoner under Section 439. The argument of the learned
counsel for the second respondent that resort could be made
to the second proviso in Section 389 is misplaced. What the
second proviso speaks about is that when a person is released
on bail under Section 389, it is open to the public
prosecutor to seek cancellation of bail. Cancellation of
5
CRL. A. NO. 1374/2021 (@ SLP (Crl.) No. 5061/2020) etc.
bail apparently is intended to deal with cases of
transgression of conditions based on the conduct of the
appellant(applicant for bail) after the grant of bail
essentially. The mandate of the first proviso must be
observed in its own right.
The Code of Criminal Procedure, 1973
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