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 full bench of the Allahabad High Court has held that where the High Court has consciously issued a non-bailable warrant for the arrest of an accused, against whose acquittal/conviction an appeal has been moved, the Magistrate or the Sessions Judge, as the case may be, would have no jurisdiction to release such person on bail. 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 ...

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

Sparsh Upadhyay

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