The Full Bench of the Allahabad High Court, Lucknow, delivered a landmark judgment on January 22, 2025, addressing procedural and substantive legal questions surrounding criminal appeals. This judgment arose out of a reference made by a Division Bench concerning divergent views of coordinate benches on the powers of subordinate magistrates and procedures for bail in appeals against acquittals or convictions.
Facts of the Case:
- Origin of Reference:
The matter arose from Criminal Appeal No. 465 of 1999, wherein procedural issues related to the hearing of criminal appeals were highlighted. The reference stemmed from conflicting decisions by the Lucknow and Allahabad benches regarding:
• Powers of Chief Judicial Magistrates (CJMs) to grant bail.
• Protocol for issuance and execution of warrants in criminal appeals.
2. Core Issue:
The divergence related to whether CJMs or other magistrates could grant bail to individuals arrested under non-bailable warrants issued by the High Court in appeals.
3. Scope of Reference:
The Full Bench was tasked with resolving these conflicting interpretations to provide clarity and establish standardized procedures.
Legal Questions Raised:
1. Bail Powers of Magistrates:
Can a CJM or magistrate grant bail to an acquitted or convicted individual when a non-bailable warrant (NBW) has been issued by the High Court at a subsequent stage of appeal?
2. Mandatory Directions by High Court:
Can the High Court issue general mandatory directions to magistrates for granting bail in such circumstances, or does this undermine judicial discretion?
3. Legality of Directions in Earlier Orders:
Were the directions issued by coordinate benches at Allahabad in 2024 valid?
4. Modes to Secure Presence:
What are the lawful methods to secure the presence of individuals in appeals before the High Court?
5. Role of Amicus Curiae:
Can an appeal against acquittal or conviction be decided in the absence of the accused, with the appointment of an Amicus Curiae?
Findings and Answers by the Court:
1. Jurisdiction of Magistrates:
The Full Bench concluded that magistrates cannot grant bail to individuals arrested under NBWs issued by the High Court unless explicitly authorized by the High Court in the warrant. The reasoning was that Section 390 Cr.P.C. vests appellate courts with exclusive jurisdiction to decide bail in such scenarios.
2. General Directions Invalid:
Mandatory directions issued by the Allahabad Bench in 2024 (regarding automatic bail by CJMs upon arrest) were deemed inappropriate. Such directions undermine the High Court’s supervisory jurisdiction and the case-by-case discretion of magistrates.
3. Securing Presence of Parties:
The court emphasized that procedures under Chapter VI of the Cr.P.C. must be followed. Warrants (bailable or non-bailable) should be issued judiciously, and alternative measures such as summons and property attachment (under Sections 82 and 83 Cr.P.C.) must be considered before resorting to NBWs.
4. Appointment of Amicus Curiae:
The court held that appointing Amicus Curiae is permissible when the accused or their counsel is absent, provided efforts to secure their presence have been exhausted. This ensures that the appeal is not unduly delayed while safeguarding the principles of fair trial.
5. Balance Between Liberty and Procedure:
While affirming the importance of securing the presence of parties, the court cautioned against prolonged detention or procedural delays. It highlighted the constitutional mandate of ensuring life and liberty under Article 21.
Quoted from Judgment-
“Question No.(1) Whether the Chief Judicial Magistrate or any other Magistrate can enlarge an acquitted person or a person convicted of an offence on bail even in a case where in an appeal against acquittal or conviction, as the case may be, the High Court or any other appellate Court has issued non-bailable warrants for securing his presence without any such stipulation therein for release by the Court below, more so when such non-bailable warrant has been issued at a subsequent stage of appeal and not the admission stage?
Question No.(2) Assuming the Magistrate has jurisdiction as referred in Question No. 1, whether a general direction of a mandatory nature can be issued by the High Court to the Magistrate for such release, as has been done vide order dated 18.01.2024 passed in Government Appeal No. 454 of 2022 and order dated 19.01.2024 passed in Government Appeal No. 2552 of 1981, does it not deprive the Magistrate of his discretion in this regard to consider such release on case to case basis in view of the law discussed?
Question No.(3) Whether the observations and directions as contained in the order dated 18.01.2024 passed in Government Appeal No. 454 of 2022 (State of U.P. vs. Geeta Devi and another) and the directions dated 19.01.2024 in Government Appeal No. 2552 of 1981 (State of U.P. Vs. Shamshuddin Khan and others) are in accordance with law?
Answer– Where the High Court has consciously issued nonbailable warrant for arrest of an appellant the Magistrate or the Sessions Judge as the case may be would have no jurisdiction to release such person on bail. It would be the terms of the order of the High Court under which non-bailable warrants have been issued which will govern the fate of the accused or appellant/convict and neither C.J.M. nor Session Judge would have jurisdiction to release such appellant or accused on bail irrespective of the fact whether the non-bailable warrant has been issued in an appeal against acquittal or in an appeal against conviction. In case the appellant or accused is arrested and committed to prison an information to that effect shall be given to the High Court pertaining to the arrest of such person by the Chief Judicial Magistrate or Session Judge concerned, forthwith. So far as issuance of bailable warrant is concerned the discretion would always be of the subordinate court to release such an appellant or accused on bail subject to the condition that he will appear before the High Court on a particular day highlighted or indicated by the High Court in its order.
In view of above the observations and directions as contained in the order dated 18.01.2024 passed in Government Appeal No. 454 of 2022 (State of U.P. vs. Geeta Devi and another) and the directions dated 19.01.2024 in Government Appeal No. 2552 of 1981 (State of U.P. Vs. Shamshuddin Khan and others) cannot be said to be a correct appreciation of law.
Question No.(4) What are the modes prescribed in law for securing the presence of acquitted person or one who has been convicted, in an appeal before the High Court and what should be the course to be ordinarily adopted by the High Court in exercise of its appellate criminal jurisdiction for securing such presence to facilitate hearing of such appeals?
Answer- Having regard to the law propounded in Poosu (supra)31 in an appeal against acquittal in an appropriate case coercive process even of the nature of bailable warrants or non-bailable warrants may be issued against the accused having regard to the peculiar facts and circumstances of each case, but it may not be construed that in all appeals against acquittal while summoning a person warrants would in variably be issued as in suitable cases, in the discretion of the Court summons may also be issued. In an appeal against conviction wherein an appellant has already been released on bail and his counsel has not appeared for arguing the appeal. Generally, no warrant of arrest could be straightaway issued against him at the first instance for the reason that he has already been released on bail by the court and no condition of his personal presence on each day of hearing was imposed on him. A bailable warrant may be issued after the office reports that Trial Court Record has been received and paper-book has been prepared.
Question No.(5) Whether an appeal, either against acquittal or conviction, can be heard by appointing an Amicus Curiae for the accused-respondent or the convicted-appellant, as the case may be, in the event he is not appearing in the appellate proceedings though his presence can be secured, without his consent and without any intimation to him, if so, under what circumstances?
Answer– This question is no more res integra and has been set at rest by the Apex Court in Bani Singh and others Vs. State of U.P. 11, Surya Baksh Singh Vs. State of Uttar Pradesh 12 and K.S. Panduranga Vs. State of Karnataka 13 and in Anokhilal Vs. State of Madhya Pradesh 7 in terms that an appellant who is avoiding his presence before the court and is not cooperating with hearing of the appeal may not be allowed to do-so and if the appellate court is satisfied that delaying tactics are being adopted by such an accused or appellant/convict, it may act in accordance with the law laid down by the Hon’ble Supreme Court in the above mentioned law reports and in this situation the appellate court would be justified in deciding the appeal on merits by perusing the judgment of the trial court and taking into account all the possible arguments which may be made by the appellant, had his counsel been present before the appellate court, however, this will not preclude the appellate court to appoint an amicus in terms of the law laid down by the Hon’ble Supreme Court in Anokhilal Vs. State of Madhya Pradesh (supra), specially in an appeal wherein the appellant is in jail.”
Key Observations:
1. Importance of Discretion:
Judicial discretion should not be curtailed through blanket directions, as every case requires individual assessment.
2. Role of Legal Aid:
The court reiterated the obligation to provide legal assistance to unrepresented accused, emphasizing that justice should not be denied due to procedural lapses.
3. Avoiding Prolonged Detention:
Detaining individuals for extended periods due to administrative inefficiencies or procedural delays violates their fundamental rights.
4. Judicial Training and Monitoring:
The court directed the Judicial Training and Research Institute (JTRI), Lucknow, to organize workshops for magistrates on bail jurisprudence and compliance with the Cr.P.C.
Impact and Implications:
• Uniform Procedures:
This judgment clarifies the procedural nuances of securing the presence of parties in criminal appeals, ensuring uniformity across Uttar Pradesh.
• Safeguarding Rights:
By restricting magistrates’ powers in cases of NBWs, the court upheld the appellate court’s primacy while ensuring safeguards for individual liberty.
• Training for Judiciary:
The directive to train judicial officers will enhance their understanding of procedural laws, reducing future inconsistencies.
The Full Bench’s judgment sets a significant precedent for handling criminal appeals in Uttar Pradesh. By striking a balance between procedural efficiency and individual rights, it reinforces the judiciary’s commitment to fair trial principles. The guidelines provided will streamline judicial processes and prevent arbitrary or excessive detention, ensuring adherence to constitutional values.
Appearances-
Shri Apoorva Tiwari, Shri Nadeem Murtaza, assisted by S/Shri Wali Nawaz Khan, Harsh Vardhan Kedia and Ms. Smigdha Singh, Shri S.M. Singh Royekwar, assisted by Shri Sumeet Tahilramani, Sri Vikas Vikram Singh, Sri Naved Ali, Sri Rajat Gangwar, Sri Alok Mishra, assisted by Shri Ajeet Kumar Mishra, Sri Ayush Tandon, Advocates, as also Dr. V.K. Singh, Government Advocate, Sri Umesh Chandra Verma, Additional Government Advocate-I, Shri Pawan Kumar Mishra, Additional Government Advocate, Sri Shivendra Shivam Singh Rathore, counsel for the State, Shri Bhavesh Chandel and Shri Shivang Tiwari, counsel.
