ALI AHMAD versus THE STATE OF BIHAR & ANR.

Citation: [2021] 7 S.C.R. 565 · Decided: 12-11-2021 · Supreme Court of India · Bench: K.M. JOSEPH, PAMIDIGHANTAM SRI NARASIMHA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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ALI AHMAD
v.
THE STATE OF BIHAR & ANR.
(Criminal Appeal No. 1374 of 2021)
NOVEMBER 12, 2021
[K. M. JOSEPH AND PAMIDIGHANTAM
SRI NARASIMHA, JJ.]
Code of Criminal Procedure, 1973: s.389 – Suspension of
sentence pending the appeal; release of accused on bail – Second
respondent-accused was convicted by trial court under s.302 IPC
and sentenced to life imprisonment – Pending appeal, High Court
allowed application filed under s.389 – Appeal by complainant –
Held: With the introduction of the first proviso to s.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 thereunde – Every law is intended to be followed – In
the impugned orders, 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 under-trial prisoner under s.439 –
The argument for the second respondent that resort could be made
to the second proviso in s.389 is misplaced – What the second proviso
speaks about is that when a person is released on bail under s.389,
it is open to the public prosecutor to seek cancellation of bail –
Cancellation of 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 –
Therefore, in these cases, the impugned orders do not conform to
the requirement of the law – High Court to take up the applications
filed by the second respondent and to follow the procedure laid
down in the s.389.
Atul Tripathi v. State of Uttar Pradesh and Others (2014)
9 SCC 177 : [2014] 14 SCR 1188 – relied on.
Kashmira Singh v. State of Punjab AIR 1977 SC 2147
: [1978] 1 SCR 385 – referred to.
[2021] 7 S.C.R. 565
565
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SUPREME COURT REPORTS
[2021] 7 S.C.R.
Case law reference
[2014] 14 SCR 1188
referred to
Para 5
[1978] 1 SCR 385 
referred to
Para 5
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.1374 of 2021.
From the Judgment and Order dated 08.01.2020 of the High Court
of Judicature at Patna in Criminal Appeal (DB) No.599 of 2019.
With
Criminal Appeal Nos.1375 and 1376 of 2021.
M. Shoeb Alam, Ms. Fauzia Shakil, Gautam Jha, Pankaj Kumar,
Ms. Sweta Jha, Advs. for the Appellant.
Manish Kumar, Ms. Anisha Mathur, Samir Ali Khan, Gaurav
Agrawal, Advs. for the Respondents.
The Order of the Court was passed by
O R D E R
K. M. JOSEPH, J.
(1) Leave granted.
(2) In both these appeals, the appellant is the complainant.  He
takes exception to the order passed by the High Court which purports to
be under Section 389 of the Code of Criminal Procedure, 1973 (Cr.P.C.)
(3) By the impugned order, the second respondent in both the
appeals have been released on bail. The second respondent in both these
appeals stood trial for offences including Section 302 Indian Penal Code,
1860 (IPC). They stand convicted by the trial Court and sentenced to
life.  It is challenging the said conviction that the criminal appeals came
to be filed in the year 2019, before the High Court of Judicature at
Patna. It is in the applications filed under Section 389 Cr.P.C. that the
impugned orders have been passed.
(4) We have heard Shri M. Shoeb Alam, learned counsel for the
appellant and Shri Gaurav Agrawal, learned counsel appearing on behalf
of the second respondent in both the cases and Shri Manish Kumar,
learned counsel for the State.
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(5) Learned counsel for the appellant would draw our attention to
Section 389 Cr.P.C. He would point out that it is the mandate of the first
proviso that an opportunity must be afforded to the public prosecutor in
case an application is moved to state his objections in writing. In this
regard, he drew our attention to the judgment of this Court in Atul
Tripathiv. State of Uttar Pradesh and Others (2014) 9 SCC 177 wherein
this Court has laid down inter alia as follows:
14. Service of a copy of the appeal and application for bail on the
Public Prosecutor by the appellant will not satisfy the requirement
of the first proviso to Section 389(1) CrPC. The appellate court
may even without hearing the Public Prosecutor, decline to grant
bail.  However, in case the appellate court is inclined to consider
the release of the convict on bail, the Public Prosecutor shall be
granted an opportunity to show cause in writing as to why the

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