ALI AHMAD versus THE STATE OF BIHAR & ANR.

ALI AHMAD versus THE STATE OF BIHAR & ANR.

The impugned High Court orders granting bail under Section 389 Cr.P.C. did not conform to the requirement of the first proviso of Section 389 because the mandated procedure (opportunity to the Public Prosecutor to show cause in writing and consideration of any written objections) was not followed; accordingly the orders were set aside and the High Court was directed to reconsider the suspension/bail applications following Section 389 (including the first proviso) and dispose of them within six weeks, with the second respondents not required to surrender pending reconsideration.

Parties
Appellant: Ali Ahmad; Respondent: The State of Bihar; Respondent: Brij Mohan Pandey
Jurisdiction
India
Judgment Date
12 November 2021
Procedural Posture
Criminal Appeal / Appeal Challenging High Court Order Under Section 389 Cr.p.c. Suspending Sentence and Granting Bail Post Conviction
Outcome
Appeals allowed; impugned High Court orders set aside; matters remitted to High Court to reconsider applications under Section 389 Cr.P.C. following the first proviso; second respondents need not surrender pending reconsideration
Legal Topics
Section 389 Cr.p.c., Suspension of Sentence, Bail Post Conviction, Section 302 IPC
Criminal Law Criminal Procedure Section 389 Cr.p.c. Suspension of Sentence Bail Post Conviction Section 302 IPC

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Parties

Ali Ahmad

Appellant

The State of Bihar

Respondent

Brij Mohan Pandey

Respondent

Procedural Posture

Criminal Appeal / Appeal Challenging High Court Order Under Section 389 Cr.p.c. Suspending Sentence and Granting Bail Post Conviction

Legal Issues

  1. 1 Whether the High Court complied with the first proviso to Section 389 Cr.P.C. by affording the Public Prosecutor an opportunity to show cause in writing before releasing a convict sentenced to life
  2. 2 Whether the second proviso to Section 389 Cr.P.C. could be relied upon in lieu of following the procedure in the first proviso
  3. 3 Whether the High Court ought to have considered the suspension/bail applications on their individual merits rather than keeping them pending because of an SLP in respect of a co-convict

Ratio Decidendi

The impugned High Court orders granting bail under Section 389 Cr.P.C. did not conform to the requirement of the first proviso of Section 389 because the mandated procedure (opportunity to the Public Prosecutor to show cause in writing and consideration of any written objections) was not followed; accordingly the orders were set aside and the High Court was directed to reconsider the suspension/bail applications following Section 389 (including the first proviso) and dispose of them within six weeks, with the second respondents not required to surrender pending reconsideration.

Court Disposition

Appeals allowed; impugned High Court orders set aside; matters remitted to High Court to reconsider applications under Section 389 Cr.P.C. following the first proviso; second respondents need not surrender pending reconsideration

Orders

  • Impugned orders are set aside
  • High Court to take up the Section 389 applications afresh and follow the procedure in Section 389 including the first proviso