Supreme Court:'Bail Is The Rule' Even When Higher Court Orders Arrest Of Accused U/ S.390 CrPC While Considering Challenge To Acquittal/Discharge

 SECTION 390 OF CODE OF CRIMINAL PROCEDURE

 As we have held earlier, in view of Section 401(1) of the Code of Criminal Procedure, the revisional Court can exercise power Under Section 390 in a given case. As can be seen from Section 390, when an appeal is preferred against an order of acquittal, the High Court is empowered to issue a warrant directing that the Accused be arrested and brought before it or any sub-ordinate Court. The Court, before which the Accused is brought, may commit him to prison pending disposal of the appeal or admit him to bail. Once an appeal against acquittal is admitted, the status of the person acquitted as an Accused can be said to be restored. That is what is held in the case of State of Uttar Pradesh v. Poosu and Ors.   MANU/SC/0191/1976 : 1976:INSC:94 : (1976) 3 SCC 1. The object of Section 390 of the Code of Criminal Procedure is that if ultimately the order of acquittal is converted into the order of conviction, the Accused must be available for undergoing sentence. The second object of Section 390 is that when an appeal against acquittal is finally heard, the Accused's presence at the hearing can be secured. Therefore, there is a power vested in the High Court to arrest an acquitted Accused and bring him before it or the Trial Court. The object is that the Accused remains under the jurisdiction of the Court dealing with the appeal against acquittal. It is well settled that an order of acquittal further strengthens the presumption of innocence of an Accused. Therefore, as a normal rule, where an order Under Section 390 of the Code of Criminal Procedure is passed, the Accused must be admitted to bail rather than committing him to prison. It is well-settled in our jurisprudence that bail is the rule, and jail is the exception. This Rule must be applied while exercising power Under Section 390 of the Code of Criminal Procedure, as the position of the acquitted Accused is on a higher pedestal than an Accused facing trial. When an Accused faces trial, he is presumed to be innocent until he is proven guilty. In the case of an acquitted Accused, as stated earlier, the presumption of innocence is further strengthened because of the order of acquittal. Only in extreme and rare cases by way of exception can an order committing an acquitted Accused to prison be passed Under Section 390. {Para 18}

19. When a revision application challenging the order of discharge is admitted for hearing, the High Court may exercise power Under Section 390 by directing the person discharged to appear before the Trial Court and by directing the Trial Court to admit him to bail on appropriate terms and conditions. If such an order is passed after the admission of the revision application against the order of discharge, it is a sufficient safeguard for ensuring the presence of the discharged Accused at the time of hearing of the revision application and for undergoing trial, if the order of discharge is set aside. If the discharge order is eventually set aside, such an order Under Section 390 of the Code of Criminal Procedure passed in an admitted revision application against the discharge order will be in the aid of final relief. As held earlier, while exercising power Under Section 390 of the Code of Criminal Procedure, the normal Rule is that the acquitted Accused should not be committed to custody, and a direction should be issued to admit him to bail. This normal Rule should apply all the more to cases where the challenge is to the order of discharge, as the order of discharge is on a higher pedestal than an order of acquittal.

20. Passing an order Under Section 390 directing the discharged Accused to admit to bail is sufficient to procure the presence of the discharged Accused at the time of hearing of the revision application and for undergoing trial if the order of discharge is set aside.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 536-537 of 2025

Decided On: 28.02.2025

Sudershan Singh Wazir Vs. State (NCT of Delhi) and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Ujjal Bhuyan, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: 2025 INSC 281,MANU/SC/0293/2025.

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