ATUL TRIPATHI versus STATE OF UP. & ANR.

Citation: [2014] 14 S.C.R. 1188 · Decided: 22-07-2014 · Supreme Court of India · Bench: M.Y. EQBAL · Disposal: Appeal(s) allowed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
[2014] 14 S.C.R. 1188 
ATUL TRIPATHI 
v . 
. STATE OF UP. &ANR. 
(Criminal Appeal No.1516 of 2014) 
B 
JULY22, 2014 
[M. Y. EQBALAND KURIAN JOSEPH, JJ.] 
Code of Criminal Procedure, 1973: 
s. 389 first Proviso - Bail-At post-conviction stage -
c Procedure for - Opportunity to Public Prosecutor for showing 
cause in writing against .such release - Need for - Held: 
1(1/here the conviction is in respect of a serious offence having 
punishment with death or life imprisonment or imprisonment 
for a term not less than ten years, it is mandatory for the 
o appellate court to give an opportunity to Public Prosecutor, 
for showing cause in writing against such release - Service 
of copy of appeal and application for bail, on the Public 
Prosecutor, will not satisfy the requirement of first proviso to 
s. 389 - Bail. 
E 
ss. 389 and 439 - Bail - At pre-conviction and post-
conviction stages- Procedure for~ Distinction - Discussed. 
The question for consideration in the present cases. 
were whether at the post conviction stage, the appellate 
court, while considering the release of the convict on 
F 
bail, should give an opportunity to the public prosecutor 
for showing cause in writing against such release where 
the conviction is on an offence punishable with death 
or imprisonment for life or for a term not less than ten 
years as envisaged in first Proviso to s. 389 Cr.P.C. 
G 
Allowing the appeals, the Court 
HELD: 1. There is a marked difference between the 
procedure for consideration of bail under Section 439 
Cr.P.C., which is pre-conviction stage and Section 389 
H Cr.P.C., which is post-conviction stage. In case of Section 
1188 
ATUL TRIPATHI v. STATE OF UP. &ANR. 
1189 
439 Cr.P.C., the Code provides that only notice to the A 
public prosecutor unless impractical, be given before 
granting bail to a person who is accused of an offence 
which is triable exclusively by the Court of Sessions or 
where the punishment for the offence is imprisonment 
for life; whereas in the case of post-conviction bail under B 
Section 389, where the conviction in respect of a serious 
offence having punishment with death or life 
imprisonment or imprisonment for a term not less than 
ten years, it is mandatory that the appellate court gives 
an opportunity to the public prosecutor for showing C 
cause in writing against such release. [Para 14) 
[1197-G-H; 1198-A-B] 
2. Service of a copy of the appeal and application 
for bail on the public prosecutor by the appellant will not 
satisfy the requirement of first proviso to Section 389. 
D 
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 E 
appellant be not released on bail. Such a stringent 
provision is introduced·only to ensure that the court is 
apprised of all the relevant factors so that the court may 
consider whether it is an appropriate case for release 
having regard to the manner in which the crime is 
F· 
. committed, gravity of the offence, age, criminal 
antecedents of the convict, impact on public confidence 
in the justice delivery system, etc. Despite such an 
opportunity being granted to the public prosecutor, in 
case no cause is shown in writing, the appellate court G 
shall record that the State has not filed any objection in 
writing. This procedure is intended to ensure 
transparency, to ensure that there is no allegation of 
H 
1190 
SUPREME COURT REPORTS 
[2014] 14 S.C.R. 
A collusion and to ensure thatthe court is properly assisted 
by the State with true and correct facts with regard to . 
the relevant considerations for grant of !?ail in respect of 
serious offences, at the post conviction stage. 
[Para 15][1198-C-G] 
B 
3. The appellate court, if inclined to consider the 
release of a convict sentenced to punishment for death 
or imprisonm.ent for life or for a period of ten years or 
more, shall first give an opportunity .to the public 
prosecutor to show cause in writing against such 
C release. On such opportunity being given, the State is 
required to file its objections, if any, in writing. In case· 
the public prosecutor does not file the objections in 
writing, the appellate court shall, in its order, specify that · 
no objection had been filed despite the opportunity 
D granted by the court. The court shall judiciou

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