What is the difference between Section 439 and Section 389 of the Code of Criminal Procedure?

  It may be seen that there is a marked difference between the procedure for consideration of bail Under Section 439, which is pre-conviction stage and Section 389 Code of Criminal Procedure, which is post-conviction stage. In case of Section 439, the Code provides that only notice to the public prosecutor unless impractical be given before granting bail to a person who is Accused of an offence which is triable exclusively by the Court of Sessions or where the punishment for the offence is imprisonment for life; whereas in the case of post-conviction bail Under Section 389 Code of Criminal Procedure, where the conviction in respect of a serious offence having punishment with death or life imprisonment or imprisonment for a term not less than ten years, it is mandatory that the appellate court gives an opportunity to the public prosecutor for showing cause in writing against such release. {Para 13}

14. ...in case the appellate court is inclined to consider the release of the convict on bail, the public prosecutor shall be granted an opportunity to show cause in writing as to why the Appellant be not released on bail. Such a stringent provision is introduced only to ensure that the court is apprised of all the relevant factors so that the court may consider whether it is an appropriate case for release having regard to the manner in which the crime is committed, gravity of the offence, age, criminal antecedents of the convict, impact on public confidence in the justice-delivery system, etc. Despite such an opportunity being granted to the Public Prosecutor, in case no cause is shown in writing, the appellate court shall record that the State has not filed any objection in writing. This procedure is intended to ensure transparency, to ensure that there is no allegation of collusion and to ensure that the court is properly assisted by the State with true and correct facts with regard to the relevant considerations for grant of bail in respect of serious offences, at the post-conviction stage.

IN THE SUPREME COURT OF INDIA

Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Crl.) No. 5191 of 2021 

 Satender Kumar Antil Vs. Central Bureau of Investigation and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: M.M. Sundresh, J.

Decided On: 11.07.2022

Citation: MANU/SC/0851/2022.

Read full Judgment here: Click here

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Whether the court should release the woman accused of heinous offence on bail?

The counsel for the petitioner submitted that, the petitioner is a woman. Therefore, she is entitled the benefit of first proviso to Section 437 (1) Cr.P.C. The first proviso to Section 437 (1) Cr.P.C. says that, 'the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm'. The counsel for the petitioner vehemently argued that, this is a mandatory provision and the petitioner is entitled bail under the first proviso to Section 437 (1) Cr.P.C. I cannot agree with this submission of the petitioner. In the first proviso to Section 437 (1) Cr.P.C. the word 'may' is used, that itself shows that, it is the discretion of the court concerned to grant or not to grant bail to a person who is under the age of 16 years or a woman or a sick person or an infirm person.

 This Court earlier dismissed the bail application of the petitioners filed in Crime No. 980 of 2019 of Thamarassery Police Station and Crime No. 189 of 2011 of Kodenchery Police Station. Similar allegations are raised against the petitioner in this case also. The other contentions raised by the petitioner are discussed in detail by this Court. This Court also considered the arguments of the learned Public Prosecutor that the petitioner had attempted to commit suicide inside the jail and releasing the petitioner at this stage is dangerous to her. The relevant discussion in the order dated 30.6.2020 in B.A. No. 3246 of 2020 filed by the petitioner is extracted hereunder:

"10. Applying the above principles to the case in hand, I find that the petitioner is a lady, who is involved in six cases in which she has allegedly murdered her close relatives, including her former husband. It is also brought in by the learned Public Prosecutor that the petitioner had attempted to commit suicide inside the jail by slashing her wrists. Timely intervention saved her life. In case she is released on bail, there is every possibility of her influencing or intimidating witnesses, repeating similar offences also cannot be ruled out, and may even go to the extent of causing harm to herself. The nature of the accusation definitely will have to be borne in mind and the facts in this case point out to a very grave crime allegedly committed by the petitioner. The learned Sessions Judge was therefore, justified and declining bail to the petitioner. I have no reason to find otherwise"

The relevant paragraph of the order dated 20.3.2020 in B.A. No. 1607 of 2020 is extracted hereunder:

"14. Deprivation of freedom by refusal of bail is of - course not for punitive purpose, but prima facie when there are reasonable grounds to believe that the petitioner had committed the offence and seriousness and the gravity of the offences alleged against her is quite obvious, while exercising the discretion in a judicious manner, this court can only reject her request to enlarge her on bail. In fact there are no circumstances justifying her release on bail, at this stage. She is the prime accused in five other murder cases. The deceased in all the cases were close relatives rather members of the very same family. Release of her on bail where charge is not even framed would shake the confidence of the public/society in judicial system. To ensure a fair trial, I find that the discretion of this court cannot be exercised in favor of this petitioner, just considering the fact that she is a lady undergoing incarceration for the last more than five months."

13. I respectfully agree with the findings of this Court in the above two cases. The same principle is applicable in the facts and circumstances of this case also.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl. No. 4628 of 2020

Decided On: 14.08.2020

 Jollyamma Joseph  Vs.  State of Kerala

Hon'ble Judges/Coram:

P.V. Kunhikrishnan, J.

Citation: MANU/KE/2189/2020

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Whether the order of Pocso court granting or refusing bail to accused involved in an offence both under Pocso Act and SC & ST Atrocities Act is appealable under Section 14A(2) of the SC/ST Act or S 439 of CRPC?

 In view of the foregoing discussions, especially, taking into consideration the decisions rendered in the case of Sarwan Singh (supra) and Ranjeet Kumar Sinha (supra) this Court is of the view that while harmoniously construing the provisions of two legislations, it is to be presumed that the legislature has enacted the later enactments with knowledge of the provision of the former legislation, and therefore a non-obstante clause in subsequent legislation, may be regarded as overriding in effect. The SC/ST Act was enacted in the year 1989, whereas the POCSO Act, being enacted in the year 2012. Section 42-A has given the POCSO Act, overriding effect over the provisions of any other law to the extent of inconsistency. It clearly indicates the intention of legislature to give overriding effect of POCSO Act over the SC/ST Act. So far the amendment in SC/ST Act is concerned, it having no clause for overriding effect vis-à-vis laws operating at that time. Therefore, the overriding effect as contemplated under Section 42-A of the POCSO Act, shall prevail over the SC/ST Act.

Therefore, in the considered opinion of this Court where any prosecution is brought for offences under both Acts i.e. POCSO Act and the SC/ST Act, the Special Court constituted under POCSO Act, alone would have jurisdiction in the matter at precognizance stage and post cognizance stage including trial, provided the accused may be charged at the same trial under the Code of Criminal Procedure, 1973.

29. Now, this Court thinks it appropriate to clarify one more aspect of the matter that the jurisdiction of the Special Court under the POCSO Act at pre-cognizance and post-cognizance stage including trial of the offences, under both statutes as referred above, would invest ipso-facto that court power to hear bail application of the accused. For answering the second issue that an order of the Special Court POCSO rejecting the bail of an accused who also being prosecuted under SC/ST Act would be appealable under Section 14-A(2) of the SC/ST Act, or the accused would have a right to apply further for bail under Section 439 of the Cr.P.C. before the High Court, at this juncture this Court would take note of Section 31 of the POCSO Act, which contemplates that the provisions of the Code of Criminal Procedure, 1973, including the provisions of bail and bonds shall apply to the proceeding before a Special Court and for the purpose of the said provision the Special Court shall be deemed to be a Court of Session. Under Section 31 of the POCSO Act, there is. fiction that the Special Court for the purpose of its proceedings shall be deemed to be a Court of Session. Therefore, the Special Court under POCSO Act would exercise power to grant or refuse bail under Section 439 of the Cr. P.C. There is no fiction under the SC/ST Act or POCSO Act that the Special Court constituted under POCSO Act, while considering the application for bail in a case where one of the offences charged was under the SC/ST Act, would be deemed to be a Special Court constituted under the SC/ST Act, for the limited purpose of granting or refusing the plea of bail. Furthermore, in view of Section 14-A(2) of the SC/ST Act, an appeal shall lie to the High Court only against an order of the Special Court constituted under the Act, granting or refusing bail, not against the order granting or refusing bail by the Special Court constituted under the POCSO Act.

30. In view of the forgoing discussions and observations, in the opinion of this Court, where an order granting or refusing bail to an accused being passed by the Special Court constituted under POCSO Act, in connection with a case involving offences under both Acts i.e. POCSO Act and SC/ST Act, the same would not be appealable under Section 14A(2) of the SC/ST Act. In such circumstances the application for bail in terms of Section 439 of the Cr.P.C. would alone be maintainable before the High Court.

IN THE HIGH COURT OF PATNA

Cr. Misc. No. 52792 of 2019

Decided On: 07.11.2019

Guddu Kumar Yadav  Vs.  The State of Bihar

Hon'ble Judges/Coram:

Sudhir Singh, J.

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Duty of court while deciding bail application of accused in serious offences

Merely recording ―having perused the record‖ and ―on the facts and
circumstances of the case‖ does not sub-serve the purpose of a reasoned judicial
order. It is a fundamental premise of open justice, to which our judicial system is
committed, that factors which have weighed in the mind of the judge in the
rejection or the grant of bail are recorded in the order passed. Open justice is
premised on the notion that justice should not only be done, but should manifestly
and undoubtedly be seen to be done. The duty of judges to give reasoned
decisions lies at the heart of this commitment. Questions of the grant of bail
concern both liberty of individuals undergoing criminal prosecution as well as the
interests of the criminal justice system in ensuring that those who commit crimes
are not afforded the opportunity to obstruct justice. Judges are duty bound to
explain the basis on which they have arrived at a conclusion.

24 In Kalyan Chandra Sarkar v Rajesh Ranjan13, a two judge Bench of this
Court was required to assess the correctness of a decision of a High Court
enlarging the accused on bail. Justice Santosh Hegde, speaking for the Court,
discussed the law on the grant of bail in non-bailable offences and held:
―11. The law in regard to grant or refusal of bail is very well
settled. The court granting bail should exercise its discretion
in a judicious manner and not as a matter of course. Though
at the stage of granting bail a detailed examination of
evidence and elaborate documentation of the merit of the
case need not be undertaken, there is a need to indicate in
such orders reasons for prima facie concluding why bail
was being granted particularly where the accused is
charged of having committed a serious offence. Any
order devoid of such reasons would suffer from nonapplication
of mind.‖
(Emphasis supplied)
25 Where an order refusing or granting bail does not furnish the reasons that
inform the decision, there is a presumption of the non-application of mind which
may require the intervention of this Court. Where an earlier application for bail
has been rejected, there is a higher burden on the appellate court to furnish
specific reasons as to why bail should be granted.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 1843 of 2019

Mahipal Vs  Rajesh Kumar @ Polia 

Dated:December 5, 2019.
Dr Dhananjaya Y Chandrachud, J

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Whether provisions of money laundering Act will have overriding effect over CRPC in respect of grant of bail?

We have noted that Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. As mentioned earlier, Section 45 of the PMLA imposes two conditions for grant of bail, specified under the said Act. We have not missed the proviso to Section 45 of the said Act which indicates that the legislature has carved out an exception for grant of bail by a Special Court when any person is under the age of 16 years or is a woman or is a sick or infirm. Therefore, there is no doubt that the conditions laid down under Section 45A of the PMLA, would bind the High Court as the provisions of special law having overriding effect on the provisions of Section 439 of the Code of Criminal Procedure for grant of bail to any person accused of committing offence punishable under Section 4 of the PMLA, even when the application for bail is considered under Section 439 of the Code of Criminal Procedure.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1706 OF 2015

(Arising out of SLP(Crl.) No.6701 of 2015)

GAUTAM KUNDU … APPELLANT(S)

:VERSUS:

MANOJ KUMAR, 

Citation;2016 CRLJ 666

Dated;December 16, 2015. 

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Precaution to be taken by Magistrate prior to releasing accused on bail

 In Criminal Courts thousands of Bail Applications would be

dealt with and disposed of. The accused would be released on bail

either on the basis of the affidavits filed by the sureties or on production

of revenue receipts, electoral identity cards, title deeds or solvency

certificates by the sureties.    It would not be proper to verify the

genuineness or otherwise of all the documents before issuing copy of

the order in the Bail Application or before releasing the accused from

judicial custody. The urgency of the situation would warrant immediate

release of the accused.        The Courts would normally rely on the

documents produced by the sureties. If the sureties produce forged

documents and get release of the accused, the Criminal Courts would

not be in a position to enforce the attendance of the accused. Even the

sureties cannot be proceeded against since in some of the cases the


details furnished regarding sureties may be bogus. The proceedings in

Bail Applications are taken and finalized on a mutual trust and

confidence. If such trust and confidence is found out of place, it would

affect the chances of getting bail urgently by other deserving accused.

The practice of producing forged documents in Courts and getting

release of the accused on the basis of such forged documents of the

sureties should be curbed at any cost. If such cases are detected, a

very strict approach is required, even in the matter of granting bail to the

accused against whom allegation is levelled that they produced forged

documents as sureties in another case.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl..No. 5668 of 2011()

RAJAN, S/O.CHELLAPPAN, V  STATE OF KERALA,
                    
 MR. Justice K.T.SANKARAN

 Dated :19/07/2011

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