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A P A P ROJECT ROJECT O N
PO WER OF OF APPEL APPEL L ATE CO URT TO G RANT BAI L
SUBMITTED TOWARDS THE FULFILMENT OF THE
COURSE TITLED
C R L A W . ) RI I M MI I N N A L L L W ( ( C Cr r. P .C )
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Acknowledgement
The present project on the topic Power of appellate court to grant bail has been ab ‘
’
get its final shape with the support and help of people from various quarters. My sin
thanks go to all the members without whom the study could not have come to its pre
state. I am proud to acknowledge gratitude to the individuals during my study and wit
whom the study may not be completed. I have taken this opportunity to thank those w genuinely helped me.
With immense pleasure, I express my deepest sense of gratitude to Mr. Manoranjan Kum
Faculty of Criminal Law, Chanakya National Law University for helping me in my proje You're Reading a Preview am also thankful to the whole Chanakya National Law University family that provided m Unlock full access with a free trial.
the material I required for the project.
Download With Free Trial I have made every effort to acknowledge credits, but I apologies in advance for any omis
that may have inadvertently taken place.
Last but not least I would like to thank Almighty whose blessing helped me to complete project. Sign up to vote on this title
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The research methodology adopted is doctrinal keeping in mind the concep
theoretical and evaluative aspects of the topic. The study on the topic has b
extensive while researching using the resources of internet from CNLU internet ce The project is on the topic „ Power of appellate court to grant bail ‟ and it has taken up with a view to not only elaborate on the topic but also to connect it
various other topics. A conclusion has been given at the end of the project to giv overall analysis of the topic.
You're Reading a Preview Thus the project has been presented in the best possible way so that the reader Unlock full access with a free trial.
this project can get the maximum benefit out of it and give a concrete idea of topic at hand and prima facie allow the readers to Trial understand the topic. Download With Free
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CONTENTS
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INTRODUCTION
The appellate court can exercise the power to grant bail only if the person asking for rel
on bail is a convicted person, he is in confinement, and his appeal against the convictio
pending under the provision of section 389. Irrespective of the fact whether the offen
bailable or non-bailable the release of the convicted person on bail is entirely at the discre
of the appellate court which is to be exercised judicially an is required to record the rea
for granting bail in matter of granting bail, the appellate court should consider whether pr
facie ground is disclosed for substantial doubt about the conviction, also whether there is likelihood of unreasonable delay in the disposal of the appeal.
An appeal against the order of acquittal can be made only to the High Court. The appe made to the State or under circumstances by the complainant if the order of acquittal has passed in a complaint case.
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When an appeal is presented underUnlock section 378, with the aHigh Court may issue a warrant direc full access free trial.
that the accused be arrested and brought it or any subordinate court, and the court be Download With Free Trial which he is brought may commit him to prison pending the disposal of the appeal or ad him to bail.
The court exercising the revisional power of jurisdiction has full discretion in the matt
bail. The discretion is to be used judicially having regard to all the circumstances of the c Sign up to vote on this title
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POWERS OF APPELLATE COURT TO GRANT BAIL
(a) In case of appeal against conviction – Section 389(1) provides that “pending an appe
a convicted person, the appellate court may, for reasons to be recorded by it in writ order that the execution of the sentence or order appealed against be suspended and, if he is in confinement, that he be released on bail or on his own bond”.
The analysis of the above rule shows that the appellate court can exercise the powe grant bail only if (i) the person asking for release on bail is a convicted person (ii) he confinement, and (iii) his appeal against the conviction is pending.
It is interesting to see that the decisions of the Supreme Court have been prop
incorporated in the amendment effected to section 389. The new proviso obliges
appellate court to hear the prosecution before a person who has been convicted o
You're Reading a Preview offence punishable with death or life imprisonment or for a term not less than ten yea
granted bail. If by any chanceUnlock he has released the prosecution is entitled to fil full been access with a free trial.
application for cancellation of his bail. Download With Free Trial The question whether the appellate court while exercising its powers under section 38
can suspend the execution of sentence as well as the conviction pending an ap
preferred by a convicted person has been answered in the affirmative.1 The M.P. H
Court has in Gopal v. State of M.P. 2 has started that an application for bail and suspen
of sentence under section 389 is a class by itself maintainable only in a pending appea
Irrespective of whether the offence is bailable or non-bailable theonrelease Sign up to vote this titleof the convi
court. person on bail is entirely at discretion of the appellate The discretion, howev Useful
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to be exercised judicially; and the appellate court is required to record reasons
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The need for granting bail or other similar relief to make appeal meaningful has reiterated by the Supreme Court in Bhagwan Rama Shinde Gosai v. State of Gujara
this case the appellant was convinced and sentenced under section 392 read with sec 397 IPC. His prayer to the High Court for suspension of sentence pending appeal
declined. His alternative request for expeditious hearing of appeal was also decline
the High Court. On appeal the Supreme Court declared that appeal would bec meaningful only if it is either heard expeditiously or granted suspension of sente nce.
The practice in the Supreme Court as also in many of the High Courts has not bee
release on bail a person who has been sentenced to life imprisonment for an offence u
Section 302, IPC. This practice was evolved on the basis that once a person has b
found guilty and sentenced to life imprisonment, he should not be let loose, so long as conviction and sentence are not set aside, but underlying postulate of this practice
that appeal of such person would be disposed of within a measurable distance of time
that if he is ultimately found to be innocent, he would not have to remain in jail fo
unduly long period. The rationale of this practice can have no application where the c
is in a position to dispose of the appeal for five or six years. Therefore, so long as You're Reading a Preview
appellate court is not in a position of an accused, within a respon Unlockto fullhear accessthe withappeal a free trial. period of time, the court should ordinarily, unless there are cogent grounds for Download With Free Trial otherwise, release the accused on bail.5
The power to grant bail conferred by the above rule [ Section 389(1)] on an appellate c
may be exercised also by High Court in the case of an appeal by a convicted person subordinate thereto [section 389(2)].
agains (b) In case of an appeal against acquittal – AccordingSign to up section antitle appeal to vote 378 on this
Useful Not useful order of acquittal can be made only to the High Court. The appeal is to be made by state or under certain circumstances by the complainant if the order of acquittal has
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commit him to prison pending the disposal of the appeal or admit him to bail (sec 390). An interesting question was raised in the Omprakash Tekchand v. State of Gujarat question was whether a trial court could issue directions on the accused persons who acquitted by it to furnish bail bonds which would remain in force for a year from the
of acquittal with a view to ensure their presence in the High Court should an ap against acquittal be filed. The Gujarat High Court responded to this question thus:-
“The power under Section 390 of the code can be exercised only after appeal is prese
and not before it. Therefore when the High Court itself cannot direct arrest of a pe
acquitted or admit him to bail until appeal is presented against his acquittal, it obvio
cannot direct the trial court to arrest such accused or admit him to bail even though h acquitted by the trial court.” 7
The Supreme Court while granting special leave to appeal against an order of acquitta
a capital charge has virtue of Article 142 read with Article 136 to exercise the s powers which the High Court has under section 390. Whether in the circumstances
case, the attendance of the accused can be best secured by issuing a bail You'rerespondent Reading a Preview
warrant or non-bailable warrant is afullmatter which Unlock access with a free rests trial. entirely in the discretion of
court. Although the discretion is judicially, it is not possible to computerise and red Download With Free Trial into immutable formulae the diverse consideration on the basis of which this discreti
exercised. Broadly speaking, the court take into account the various factors such as
nature and seriousness of the offence, the character of the evidence, circumsta
peculiar to the accused, possibility of his absconding, larger interests of the public
state. In addition, the court may also take into consideration the period during which
whi proceedings against the accused were pending in theSign courts the period up tobelow vote onand this title
inUseful Not useful likely to elapse the appeal comes up for final hearing the appellate court. 8
Here the court has full discretion in the matter of bail and it is immaterial whether
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court.9 However, the full bench of Punjab High Court after considering the decision o
Orissa High Court took a different view and observed, “. . . the rule should be tha
accused respondents in State appeals against their acquittal on capital charges
normally eligible to be released on bail during the pendency of such appeals unless grave and exceptional reasons the court directs their detention in custody”.10
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POWER OF THE COURTS OF REVISION TO GRANT BAIL
Section 397(1) provides that:
The High Court or any Sessions Judge may call f or and examine the record of any procee
before any inferior criminal court situate within its or his local jurisdiction for the purpo
satisfying itself or himself as to the correctness, legality or propriety of any finding, sente
or order, recorded or passed, and as to regularity of any proceedings of such inferior co
and may, when calling for such record, direct that the execution of any sentence or orde suspended, and if the accused is in confinement, that he be released on bail or on his pending the examination of the record.
As in case of appeal, here also, the court exercising revisional jurisdiction has full discre You're Reading a Preview in the matter of bail. The discretion is to be used judicially having regard to all circumsta Unlock full access with a free trial.
of the case. Download With Free Trial
POWER TO GRANT BAIL WHERE A REFERENCE HA BEEN MADE TO THE HIGH COURT Sign up to vote on this title
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If a criminal court has to decide about the constitutional validity of any enactment, it
make a reference to High Court for the decision of that question [section 395(1)]. A cou
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RELEASE ON BAIL AFTER CONVICTION BUT BEFO FILLING APPEAL Sub-section (3) of Section 389 provides:
Where the convicted person satisfies the court by which he is convinced that he intend present an appeal, the court shall(i)
Where such person, being on bail , is sentenced to imprisonment for a term exceeding three years, or
(ii)
Where the offence of which such person has been convinced is a bailable one, he is on bail,
Order that the convicted person be released on bail, unless there are special reasons
refusing bail, for such period as will afford sufficient time to present the appeal and ob
the orders of the Appellate Court under sub-section (1) [of section 389]; and the sentenc Reading a Preview imprisonment shall, so long as he isYou're released on bail, he deemed to be suspended. Unlock full access with a free trial.
Before the appeal is actually filed, the appellate court cannot grant bail under Section 389
Download With Therefore, when the convicted person intends toFree file Trial an appeal against his conviction
sentence, this rule contained in Section 389(3) will enable the sentencing court to grant
for a limited period i.e. till the appeal is filed and the appellate court is moved for ge release on bail. To ensure that refusal of bail in such cases it would be unjust to refuse
To ensure that refusal of bail in such cases should be in exceptional circumstances, it been considered desirable to require that special reasons should be recorded by the before refusing bail under this section.11
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There have been conflicts of judicial opinion with regard to the jurisdiction of the High C
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CANCELLATION OF BAIL GRANTED BY THE APPELLATE, REVISIONAL OR SENTENCING COURT,
OF BAIL GRANTED ON REFERENCE TO HIGH COURT
If a court releases a person on bail under sub-section (1) or sub-section (2) of Section
then it has got the discretion to cancel the bail or bond and commit that person to cus [Section 437(5)].14
Similarly if a person has been released under section 436 to 450, the High Court or Cou
Session has got the discretion to cancel the bail or bond and to commit that perso custody.15
No provision for cancellation of bail appears to have been made in the code when the ba
granted by the appellate, revisional, or sentencing court, or when the bail is granted
reference to High Court 16. Is the omission on theapart of the Legislature due to inadvert You're Reading Preview
or is it a deliberately intended one?Unlock Despite the controversies and the judicial decisions o full access with a free trial.
higher courts including those of the Supreme Court, the Legislature while enacting the Download With Free Trial Code in 1973 allowed the same omission to remain in relevant provisions of the c
Therefore, it is rather difficult now to say that the omission was due to inadvertence only
the other hand if we conclude that omission was deliberate and intended one, and therefor
not permit the High Court to invoke its inherent power to cancel the bail when the pe
released on bail is grossly abusing the freedom, the consequences would be disastro
disastrous to the society, ruinous to the administration of justice, andoneven disadvantageo Sign up to vote this title
Useful Not useful the accused person themselves. Because, very few persons are convicted to grave crimes
be granted bail (including High Court) were to be precluded from cancelling the bail ev
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would have been welcome. The omission to make such a provision is rather a serious lac
in the Code. After concealing all this, it is suggested that, in the interests of justice, the H
Court should invoke its inherent powers under Section 482 and cancel the bail wherev
thinks it fit to do so. This view would get support from the various decisions under the
code of 1898. 18 It is submitted that courts are more likely to follow and adopt the s viewpoint in future till the Code is suitably amended.
The M.P. High Court has recently reiterated that the bail granted under Section 389 canno
cancelled under Section 439(2) in as much as the persons who are granted bail under Sec
389 are not accused but convicted persons. Also the sentence is only kept in abeyance bu set aside.19 The court has however asserted that it can recall the order of release.
interesting to see that the second proviso added to Section 389(1) empowers the Pu
Prosecutor to file an application for the cancellat ion of bail granted to a convicted person.
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CONCLUSION
Irrespective of whether the offence is bailable or non-bailable the release of the conv person on bail is entirely at discretion of the appellate court.
The appellate court can exercise the power to grant bail only if the person asking for rel
on bail is a convicted person, he is in confinement, and his appeal against the convictio pending under the provision of section 389.
An appeal against the order of acquittal can be made only to the High Court. The appe made to the State or under circumstances by the complainant if the order of acquittal has passed in a complaint case.
Reading a Previewhas full discretion in the matt The court exercising the revisionalYou're power of jurisdiction
Unlock full access withregard a free trial. bail. The discretion is to be used judicially having to all the circumstances of the c
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BIBILOGRAPHY BOOKS REFERRED
Dr. Pillai Chandrashekharan K.N., R.V. Kelkar‟s Criminal Procedure, Fifth Editio Eastern Book Company.
Ranchhoddas, Ratanlal and Thakore Keshavlal, Dheerajlal, The Code Of Criminal Procedure, Seventeenth Edition, Reprint 2007, Wadhwa & Company Nagpur.
Dr. Paranjape, N.V., The Code of Criminal Procedure, Second Edition, Cebtral La Agency.
Dr. Chaturvedy M.D., Code of Criminal Procedure, 1973, First Edition, 2006, Allahabad Law Agency.
WEBSITES
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http://www.lawyersupdate.co.in/LU/1/738.htm Sign up to vote on this title
DICTIONARY REFERRED
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