Magistrate/Sessions Court Has No Jurisdiction To Grant Bail To Accused If HC Issues NBW In Appeals Against Acquittal Or Conviction: Allahabad HC [FB]

A bench of Justices Sangeeta Chandra, Pankaj Bhatia, and Mohd. Faiz Alam Khan reasoned that the fate of the accused or appellant/convict would be governed as per the terms of the order of the High Court under which non-bailable warrants have been issued.

“…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,” the full bench held.

The bench, however, clarified that so far as the issuance of a bailable warrant is concerned, the subordinate court would have the discretion to release 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.

The court held thus, while answering a reference made to it by the Division Bench (HC's Bench at Lucknow) in March 2024, disagreeing with two orders passed by a coordinate bench (at Allahabad/Prayagraj) in January 2024.

Essentially, the Division bench (sitting at Allahabad/Prayagraj) had passed a generalised direction to the CJM or any other Magistrate to enlarge an acquitted person or a person convicted of an offence on bail, even in cases where the High Court has issued a non-bailable warrant.

The two generalised directions (with which a co-ordinate bench at Lucknow disagreed) are as follows:

(a) As and when Non Bailable Warrants are issued in appeal from acquittal and accused is brought before the CJM / Ilaka Magistrate, he will be admitted bail subject to furnishing bail bonds to their satisfaction and on undertaking that they will appear before the High Court on particular date as per the order of the Court.

(b) Even in cases where appeal against conviction is pending before the High Court and sentence is suspended and either he or his counsel could not appear before the High Court and Non Bailable Warrants are issued on and produced before the CJM, they will be released on bail to the satisfaction of the court concerned with an undertaking that they will appear before the High Court.

The Division Bench at Lucknow framed the following questions for consideration by a Larger Bench: –

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, wherein an Appeal against acquittal or conviction, as the case maybe, the High Court or any other Appellate Court has issued non-bailable warrant for securing his presence without any such stipulation there in for release by the Court below, when such non-bailable warrant has been issued at a subsequent stage of Appeal and not at the admission stage?
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 Government Appeal No. 454 of 2022 and order dated 19.01.2024, Govt 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?
3. Whether the observations and directions as contained in the order dated 18.01.2024 in Govt Appeal No. 454 of 2022: State of U.P. Vs. Geeta Devi and another and the directions dated 19.01.2024 in Govt Appeal No. 2552 of 1981, State of U.P. Vs. Shamsuddin Khan and others are in accordance with law?
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?
5. Whether an Appeal, either against acquittal or conviction, can be heard by appointing an Amicus Curiae for the accusedrespondent or the convicted appellant, as the case maybe, in the event he is not appearing in the proceedings, though his presence can be secured, without his consent and without any intimation to him, if so, under what circumstances?

Disagreeing with the directions issued by the division bench sitting at Allahabad/Prayagraj, and answering Questions 1, 2 and 3, a full bench of the HC ruled thus:

“…where the High Court has consciously issued nonbailable warrant for the confinement or arrest of an appellant, the intention of issuance of such warrant is to commit the accused/ appellant or convict to prison and in that condition the Magistrate or the Sessions Judge as the case may be would have no jurisdiction to release such person on bail…the subordinate court would be divested of any jurisdiction to release such an appellant or accused person on bail, unless otherwise directed by the High Court”.

In view of this, the observations and directions of the division bench (sitting at Prayagraj/Allahabad) was set aside.

Regarding question 4, the Full bench held that 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.

The bench, however, clarified that it must not be construed that in all appeals against acquittal, while summoning a person, warrants would variably be issued as in suitable cases, in the discretion of the Court, a summons may also be issued.

However, in an appeal against conviction wherein an appellant has already been released on bail, and his counsel has not appeared to argue the appeal, the full bench held that generally, no warrant of arrest could be straightaway issued in such cases.

“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,” the Court held.

Regarding question no. 5, the full bench held that in cases where an appellant who is avoiding his presence before the court and is not cooperating with hearing of the appeal, the HC could move ahead with the hearing by appointing an Amicus Curiae for the accused-respondent or the convicted-appellant.

“…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 [96] 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,” the full bench held.

The reference was answered accordingly.

The full bench, before parting with the judgment, appreciation the dedication with which it was assisted by 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, learned Advocates, as also Dr. V.K. Singh, learned Government Advocate, Sri Umesh Chandra Verma, learned Additional Government Advocate-I, Shri Pawan Kumar Mishra, learned Additional Government Advocate, Sri Shivendra Shivam Singh Rathore, learned counsel for the State, Shri Bhavesh Chandel and Shri Shivang Tiwari.

Case title - In Re- Procedure To Be Followed In Hearing Of Criminal Appeals vs. State of U.P 2025 LiveLaw (AB) 29

Case citation : 2025 LiveLaw (AB) 29

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