BALKRISHNA MAHADEV LAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This matter has been referred to the Full Bench, pursuant to the order passed by the Division Bench of Mr. Justice A. S. Oak and Mr. Justice A. V. Potdar on 29th February, 2012. The said Division Bench was of the opinion that the view expressed in the decision of another Division Bench of this Court (Bilal Nazki as he then and A. R. Joshi, JJ. ) in the case of State of Maharashtra vs. Bapu Pandu Mali, 2010 AllMR(Cri) 120 , and followed in the subsequent decision of another Division Bench of this Court (V. M. Kanade and A. M. Thipsay, JJ. ) in the case of Farooq Abdul Gani Surve vs. the State of Maharashtra, 2012 AllMR(Cri) 271 , was in conflict with the purport of Section 390 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") and in particular the exposition of the Apex Court in the case of State of U. P. vs. Poosu and Anr., 1976 3 SCC 1 and Amin Khan vs. State of Rajasthan, 2009 3 SCC 776 , which decisions were not brought to the notice of the Division Bench in the case of Bapu Pandu Mali . Having taken that view, the Division Bench of Justice Oak and Justice Potdar formulated questions for consideration by a Larger Bench of this Court. The said questions read thus:

(2.) In the reference order, the Court has analysed the two previous decisions of the Division Bench referred to above. It found that keeping in mind the purport of Section 390, it would appear that judicial discretion could be exercised by the High Court on the question of issuance of bailable or non bailable warrant against the acquitted accused, at any stage of the appeal against acquittal. Further, the provision confers discretion on the Court, before whom the accused is brought, either to commit him to prison or to admit him to bail, pending disposal of the appeal.

(3.) It then went on to consider the direction issued in the earlier two decisions of the respective Division Benches to the effect that if Sessions Judge fails to follow the directions so issued, in that case, he shall be liable for contempt action. In the reference order, the Division Bench has noted that it is well settled that breach of an order of a Court will constitute civil contempt if and only if the breach is deliberate or wilful. Every breach is not a civil contempt. As a result of difference of opinion on these two issues the Court formulated two questions referred to above, in the reference order.