Honourable S.S. Kulshrestha, J. - (1.) IN view of conflict of opinion rendered by a Bench of two learned Judges in Criminal Appeal No. 7549 of 2006, Arimardan v. State of U.P. connected with 9 other appeals, regarding interpretation of proviso to Section 389(1) of the Code of Criminal Procedure (as amended by The Criminal Law (Amendment) Act, 2005) (for short Cr.P.C), this reference has been placed before this Bench.
(2.) THE facts of this case may be noticed in brief. Criminal Appeal No. 7549 of 2006, Arimardan v. State of U.P., connected with 9 other criminal appeals (referred above), were brought under Section 374(2) Cr.P.C. against the judgment and order of the Sessions Judge convicting and sentencing the accused appellants for various offences. At the time of hearing of bail application moved along with the memorandum of appeal(s) request appears to have been made on behalf of the State to furnish adequate time to them for filing the written reply as is required under Section 389(1) Cr.P.C. so as to facilitate the disposal of the bail application. However, objections were raised by the learned counsels for the appellants that the proviso added to Section 389(1) Cr.P.C. is directory in nature and in fact no time should be given to the Public Prosecutor to show-cause in writing against the release of the appellants on bail as there was sufficient notice of the filing of bail application along with memorandum of appeal in view of Rule 18(3) Chapter XVIII of the Rules of Court. Hon. Sri Mukteshwar Prasad, J gave decision rendering proviso added to Section 389(1) to be mandatory and the Public Prosecutor has to be given an opportunity of hearing and to oppose the grant of bail to the convict who has been found guilty for committing heinous offences. Hon. Sri B.A. Zaidi, J was of the opinion that the use of word "shall" in the proviso would not make the requirement of giving show-cause notice to the Public Prosecutor to be compulsory. It has no such mandatory import. Further placing reliance on the decision given by the Apex Court in the case of Sheikh Salim Haji Abdul Khayumsab v. Kumar and others, (2006) 1 SCC 46, proviso to Section 389(1) Cr.P.C. was construed to be directory as this would also be in furtherance to the cause of justice and to avoid inconvenience to the appellant(s). Learned counsel for the appellants placing reliance on the decisions given by the Apex Court in the cases of Sheikh Salim Haji Abdul Khayumsab v. Kumar and others, (2006) 1 SCC 46; Sangram Singh v. Election Tribunal Katak, AIR 1955 SC 425; Narayan Rao v. State of Andhra Pradesh, AIR 1957 SC 7737 and also the principle of interpretation (as has been referred in the decision of Hon. Sri B.A. Zaidi, J) have submitted that procedural law is not to be tyrant but an aid to justice. The provisions of the procedural enactment ought not to be construed in the manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. To the contrary on behalf of the State it was submitted that the provisions as contained in Section 389(1) Cr.P.C. are clear and unambiguous and a plain reading of proviso to Section 389(1) Cr.P.C. is not capable of any other interpretation except giving opportunity to the Public Prosecutor for showing cause in writing against the release of appellant(s) on bail in the classes or category of offences referred therein. The principal controversy revolves round the interpretation of the expression "shall give opportunity to the Public Prosecutor for showing cause in writing against such release" occurring in proviso to Section 389(1) Cr.P.C. The question which requires consideration as to whether the arrangement made in the proviso is mandatory or directory in nature having in regard the Criminal Law (Amendment) Act, 2005 through which this proviso was added to section 389(1) Cr.P.C. and object sought to be achieved. Since it is a matter of general importance and so the notice of the reference was given to the High Court Bar Associations both at Allahabad and Lucknow. Presidents and Secretaries of Bar Associations and certain Senior Advocates submitted that the purpose of proviso to Section 389(1) Cr.P.C. is not to bar the hearing of the bail application in appeal without giving opportunity for showing cause in writing to the Public Prosecutor. If a very restricted interpretation is given to the said proviso, the protection afforded by the principal Section 389(1) Cr.P.C. will be virtually reduced to vanishing point, defeating the very object of the Code or at least the convict would be required to suffer incarceration for some more time on these technicalities or niceties, even when his appeal and bail application are well merited. The proviso, it is urged, does not completely bar the hearing of bail of convicted person of an offence of the type described thereunder, but introduces a safeguard in the sense that when the Court find the written reply in the matter necessary to appreciate the points involved in admitted the accused on bail, may give show-cause notice to the Public Prosecutor. It is also submitted by the learned counsel for the appellants that the procedural Law should be interpreted in the manner which avoids hardship to the convict.
(3.) THE Learned Advocate General has submitted that language of the proviso to Section 389(1) Cr.P.C. is clear and there being no ambiguity therein, the only possible manner in which it can be interpreted is that the opportunity is to be given to the Public Prosecutor for show-cause in writing against the release of the appellant. THE proviso has to be strictly construed as it creates a bar for the release of the convicted person for an offence punishable with death or imprisonment for life or imprisonment for a term of not less than 10 years unless opportunity is given to the Public Prosecutor to give reply in writing. It was also urged by him that any provision which provides specific arrangement must be strictly construed and cannot be given an enlarged meaning at the discretion of the Court. Since the accused appellant is found guilty for offences specified in the proviso and so his bail application should not be allowed in routine manner as it would adversely affect the interest of society. THE learned Advocate General submitted that in certain cases evidence adduced in the trial Court are required to be referred in the- Court so as to appreciate the points taken at the time of disposal of bail application. It was further submitted by him that the object of introducing the provision was clearly to limit the powers of the appellate Court under Section 389(1) Cr.P.C. for granting bail unless reply in writing is called for. The scheme of statutory provision may now be examined. Section 389 Cr.P.C. reads as under: 389-Suspension of sentence pending the appeal; release of appellant on bail.-(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release. Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail. (2) The power conferred by this Section on an Appellate Court may be exercised also by the High Court in the case of an appeal by convicted person to a Court subordinate thereto. (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,- (i) Where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or (ii) Where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under subsection (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced. Sub-sections (1) and (2) of this Section contemplate suspension of sentence by the appellate Court only pending appeal. Sub-section (3) can be invoked for interim relief before the convicting Court only in cases where the accused is sentenced to imprisonment for a term not exceeding three years and is on bail where the offence for which he has been convicted is bailable and he is on bail. Further sub-section (1) enjoins that where convict for offence(s) applies for grant of bail, the appellate Court while granting bail has to record reasons in writing. But the powers under sub-section (1) for certain categories of offences can be exercised only after the fulfilment of certain requirements as are envisaged in the proviso added to this Section. The language of proviso would not justify the taking up of the bail application by the appellate Court without giving opportunity for showing cause in writing against the grant of bail. This proviso requires a show-cause notice to the Public Prosecutor before passing an order by the Court on the bail application of the convict in the offences enumerated in the proviso thereof. The object of the main Section as the history of its legislation shows and the decided cases indicate that the bail of the convicted persons may be considered for the reasons recorded under Section 389(1) Cr.P.C. The proviso engrafts an exception on the general powers of the Court. In deed, in view of the aforesaid facts, there is statutory prohibition against the grant of bail to the convicted persons in the offences provided in the provision unless opportunity is given to Public Prosecutor. This proviso appears to have been conceived in an attempt to find out the evidence against the convict.;