ARIMARDAN Vs. STATE OF U P

JUDGEMENT

(1.) IN view of conflict of opinion rendered by a Bench of two learned Judges in Criminal Appeal No. 7549 of 2006, Arimardan v. State of U.P. connected with 9 other appeals, regarding interpretation of proviso to Section 389(1) of the Code of Criminal Procedure (as amended by The Criminal Law (Amendment) Act, 2005) (for short Cr.P.C), this reference has been placed before this Bench.

(2.) THE facts of this case may be noticed in brief. Criminal Appeal No. 7549 of 2006, Arimardan v. State of U.P., connected with 9 other criminal appeals (referred above), were brought under Section 374(2) Cr.P.C. against the judgment and order of the Sessions Judge convicting and sentencing the accused appellants for various offences. At the time of hearing of bail application moved along with the memorandum of appeal(s) request appears to have been made on behalf of the State to furnish adequate time to them for filing the written reply as is required under Section 389(1) Cr.P.C. so as to facilitate the disposal of the bail application. However, objections were raised by the learned counsels for the appellants that the proviso added to Section 389(1) Cr.P.C. is directory in nature and in fact no time should be given to the Public Prosecutor to show-cause in writing against the release of the appellants on bail as there was sufficient notice of the filing of bail application along with memorandum of appeal in view of Rule 18(3) Chapter XVIII of the Rules of Court. Hon. Sri Mukteshwar Prasad, J gave decision rendering proviso added to Section 389(1) to be mandatory and the Public Prosecutor has to be given an opportunity of hearing and to oppose the grant of bail to the convict who has been found guilty for committing heinous offences. Hon. Sri B.A. Zaidi, J was of the opinion that the use of word "shall" in the proviso would not make the requirement of giving show-cause notice to the Public Prosecutor to be compulsory. It has no such mandatory import. Further placing reliance on the decision given by the Apex Court in the case of Sheikh Salim Haji Abdul Khayumsab v. Kumar and others, (2006) 1 SCC 46, proviso to Section 389(1) Cr.P.C. was construed to be directory as this would also be in furtherance to the cause of justice and to avoid inconvenience to the appellant(s).

(3.) THE Learned Advocate General has submitted that language of the proviso to Section 389(1) Cr.P.C. is clear and there being no ambiguity therein, the only possible manner in which it can be interpreted is that the opportunity is to be given to the Public Prosecutor for show-cause in writing against the release of the appellant. THE proviso has to be strictly construed as it creates a bar for the release of the convicted person for an offence punishable with death or imprisonment for life or imprisonment for a term of not less than 10 years unless opportunity is given to the Public Prosecutor to give reply in writing. It was also urged by him that any provision which provides specific arrangement must be strictly construed and cannot be given an enlarged meaning at the discretion of the Court. Since the accused appellant is found guilty for offences specified in the proviso and so his bail application should not be allowed in routine manner as it would adversely affect the interest of society. THE learned Advocate General submitted that in certain cases evidence adduced in the trial Court are required to be referred in the- Court so as to appreciate the points taken at the time of disposal of bail application. It was further submitted by him that the object of introducing the provision was clearly to limit the powers of the appellate Court under Section 389(1) Cr.P.C. for granting bail unless reply in writing is called for.