Case Note & Summary
The matter was referred to a Full Bench of the Bombay High Court due to a conflict between two Division Bench decisions and the purport of Section 390 of the Code of Criminal Procedure, 1973. The Division Bench of Justice Oak and Justice Potdar, while hearing a criminal bail application, found that the decisions in State of Maharashtra vs. Bapu Pandu Mali and Farooq Abdul Gani Surve vs. State of Maharashtra held that upon issuance of a warrant under Section 390 CrPC, the accused is entitled to bail as a matter of right and the Sessions Judge has no power to commit the accused to prison. This view was in conflict with the Supreme Court decisions in State of U.P. vs. Poosu and Amin Khan vs. State of Rajasthan, which recognized judicial discretion in such matters. The Full Bench, comprising Justices A.M. Khanwilkar, R.M. Savant, and P.D. Kode, analyzed the provisions of Section 390 CrPC and the relevant precedents. The Court held that Section 390 CrPC empowers the appellate court to issue a warrant for the arrest of the accused at any stage of the appeal against acquittal, but the decision to grant bail or commit to prison is a matter of judicial discretion. The accused is not entitled to bail as a matter of right. The Sessions Judge, before whom the accused is produced, has the power to either grant bail or commit the accused to prison pending disposal of the appeal. The Full Bench overruled the earlier Division Bench decisions in Bapu Pandu Mali and Farooq Abdul Gani Surve as they were not in consonance with the law laid down by the Supreme Court. Regarding the second question, the Court held that every breach of directions by the Sessions Judge does not automatically constitute contempt of court; it must be assessed on a case-by-case basis. The reference was answered accordingly.
Headnote
A) Criminal Procedure - Appeal Against Acquittal - Section 390 CrPC - Issuance of Warrant - Bail as Matter of Right - The Full Bench held that upon issuance of a warrant under Section 390 CrPC, the accused is not entitled to bail as a matter of right; the Sessions Judge before whom the accused is produced has the power to commit the accused to prison or grant bail, exercising judicial discretion. The earlier Division Bench decisions in State of Maharashtra vs. Bapu Pandu Mali and Farooq Abdul Gani Surve vs. State of Maharashtra were overruled as they conflicted with the Supreme Court decisions in State of U.P. vs. Poosu and Amin Khan vs. State of Rajasthan. (Paras 1-27) B) Criminal Procedure - Contempt of Court - Breach of Directions by Sessions Judge - The Full Bench held that every breach committed by the Sessions Judge of the direction issued by the High Court will not automatically constitute contempt of court; it depends on the facts and circumstances of each case. (Paras 1-27)
Issue of Consideration
Whether upon issuance of a warrant under Section 390 CrPC in an appeal against acquittal, the accused is entitled to bail as a matter of right, and whether the Sessions Judge has power to commit the accused to prison till disposal of the appeal; and whether breach of directions by Sessions Judge constitutes contempt of court.
Final Decision
The Full Bench answered the reference by holding that upon issuance of a warrant under Section 390 CrPC, the accused is not entitled to bail as a matter of right; the Sessions Judge has the power to either grant bail or commit the accused to prison, exercising judicial discretion. The earlier Division Bench decisions in Bapu Pandu Mali and Farooq Abdul Gani Surve were overruled. Regarding the second question, the Court held that every breach of directions by the Sessions Judge does not automatically constitute contempt of court; it depends on the facts of each case.
Law Points
- Section 390 CrPC
- appeal against acquittal
- issuance of warrant
- bail as matter of right
- judicial discretion
- contempt of court
