STATE OF U.P. versus POOSU AND ANOTHER

Citation: [1976] 3 S.C.R. 1005 · Decided: 02-04-1976 · Supreme Court of India · Bench: A.N. RAY · Disposal: Reference answered

Cited by 5 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

1685 
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STATE OF U.P. 
A 
V. 
' _, 
POOSU AND ANOTHER 
April 2, 1976 
• 
• 
[A. N. RAY, CJ., M. H. BEG, R. S. SARKARIA, P. N. SHINGHAL ANO 
JASWANT SINGH] 
B 
Constitution of India, Articles 136 rlw 142-Re-arrest and detention of 
.accused during pendency of State appeal against acquittal, whether violative of 
Articles 14, 19(1)(a) to (g) and 21. 
The accused-respondents were acquitted by the High Court of capital oft'enc-
cs. This Court granted the State of U.P. special leave to appeal, and under 
Art. 136 read with Art. 142, issued orders directing the re-arrest and detention 
of the accused. 
The orders were challenged by the accused-respondents on 
the grounds that their acquittal and the findings on which it is based, remain 
fully in force during the pendency of the State appeal, and that in the absence 
_. 
-0f a specific statutory provision, the Supreme Courfs inherent power under the 
i 
Cr.P.C., or under Art. 142, cannot be invoked to order the deprivation of the 
acquitted person's liberty, and that such an order would violate Articles 14, 
19(1)(a) to (g) and 21 of the Constitution. 
_On a reference of this question to the Constitution Bench, 
HELD : This Court, while granting specia1 leave to appeal against an order 
of acquittal on a capital charge, is competent by virtue of Art. 142 read with 
Art. 136, to exercise the same p0wers which the High Court has under .sec. 427 
(re-enacted as Sec. 390 of the new Cr.P.C. of 1973). An order directing the 
re-arrest and detention of an accused-respondent who has been acquitted by 
the High Court of a capital offence, neither offends Art. 21 or any other 
fundamental right guaranteed in Part III of the Constitution.. nor deprives the 
accused-respondent of his liberty in a manner otherwise than in accordance 
with procedure established by law. 
[!008D-E, !009A·B] 
-' 
State v. Badapalli Adi & Ors. I.L.R. 1955 Cuttack 589, En1press of India v. 
Mangu & Ors. l.L.R. 2 All. 340; Queen v. Gobin Tiwari I.L.R. [18761 l Cal. 
281; Queen En1press v. Gobardhan l.L.R. [18871 9 All. 528; Banna v. 1'1ethucn 
& Ors. 2 Bens. 228; K. M. Nanqyati v. State of Mahara.thtra, [1962] 1 Supp. 
S.C.R. 567 and The State v. Capt. Jagjit Singh [1962] 3 S.C.R. 622, referred to. 
c 
D 
E 
CRIMINAL APPELLATE JURISDICTION : Cr!. Mis. Petitions Nos. 1 and 
243 of 1975. 
F 
\. 
(Appeal by special leave from the judgmnt and order dated the 
24-10-1973 of the Allahabad High Court in Criminal Appeal No. 710 
of 1973. 
Referred No. 34 of 1973) 
R. K. Garg, S. C. Agarwal, V. J. Francis, for the petl'.ioner in Cri. 
Mis. 1 and 243 of 1975. 
0. P. Rana, for the petitioner/r. 2 in Cr. M.P. No. 546/75 . 
D. P. Uniyal with 0. P. Rana for the opposite side in Crl. M. P. 
Nos. 1 and 243 of 1975. 
Pramod Swarup, for respondent No. 2 in Cr. M. P. No. 546 of 
1975. 
G 
The Judgment of the Court was delivered by 
H 
SARKARIA, J. 
The common question referred to the Constitution 
Bench in these two cases is : Whe'.her the Supreme Court while granting 
14-725SC!f76 
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B 
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1006 
SUPREME COURT REPORTS 
[1976] 3 S .. C.R. 
Special Leave to appeal under Article 136 of the Constitution, against 
an order of acquittal. on a capital charge,, has the power to issue a non-
bailable warrant for the arrest and co11unittal to prison of the accused-
respondent who had bery. acquitted by the High Court? 
>-._} 
Mr. R. K. Garg, Counsel for· the accused-respondcn'.s herein, con-
tends that while the legislature bas, in its wisdom, empowered the High 
Court to cause an accused person to be arrested and committed to 
prison pending the disposal of the appeal against acquittal, no such 
power has been conferred on the Supreme Court by the Code or any 
other statute. 
According to Counsel, in the absence of a specific statu-
tory provision, the inherent power of the Court to do complete justice 
under the Code or even under Article 142 of the Constitution cannot 
be invoked to order deprivation of the liberty of a person who has 
b,een found innocent and acquitted by the High Cour,t on all the charges 
against him because such an order would be violative of Articles 14, 
19(1) (a) to (g) and 21 of the Constitution. 
It is maintained that 
even after the grant of special leave to appeal under Article 136 against 
an order of acquittal passed by the High Court, the acquittal and the 
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findings on which it is based, remain fully in force during the pen-
dency of appeal by the State. It is contended that once it i

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