In a recent important judgement delivered by a larger bench with majority of 2:1, the Allahabad High Court at Lucknow has set a significant precedent regarding the powers of Larger Benches to stay the Directions/Order of One of the Division Benches and the execution of non-bailable warrants in criminal appeals against acquittal.
By majority of 2:1 the Court ruled that “The power to hold a decision to be in accordance with law also carries with it the power to stay its operation during the pendency of consideration of the issue to render the judgement which we would eventually give, effective and not meaningless.”
The majority judgment delivered by Justice Sangeeta Chandra and Justice Faiz Alam Khan, emanated from the doubts raised about the correctness of orders issued by a Coordinate Bench in Government Appeals dated January 18 and 19, 2024, which had far-reaching implications on government authorities and the broader administration of justice in Uttar Pradesh.
The Court in above mentioned Government Appeal ordered the Director, Judicial Training and Research Institute, Lucknow to take online seminar of all the Chief Judicial Magistrates as well as Secretary, District Legal Services Authority and inform that:
- 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.
- 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 Director of the Judicial Training and Research Institute, Lucknow will conduct a survey in the State of UP to find out where in terms of issuance of Non Bailable Warrant either in case of bail against acquittal or in case where accused sentence is suspended, but subsequently he failed to appear, is in jail (prison) for considerable long time, they will be released on bail in same terms as mentioned in above sub para (a) and (b).
- Since keeping a person in judicial custody for long time without any justification violate the right of life and liberty of such person, after 30 days of this order, if still bails are not granted, this Court will impose cost of Rs. 50,000/- to be paid by the District State Legal Services Authority concerned.”
The court delved into the intricate legal discourse surrounding the powers vested in a Larger Bench when a reference is made by a Division Bench. The heart of the matter revolved around above mentioned directions given in previous orders concerning the procedures to be followed when non-bailable warrants are issued, particularly in cases of appeals from acquittal and when accused persons are unable to appear in the High Court.
A critical analysis of Chapter V Rule 6 of the Allahabad High Court Rules was undertaken, which elucidated that a Larger Bench, while considering referred questions of law, is not confined by statutory jurisdiction of any specific Act. This implies that its, save for established legal precedents.
The contentious directions aimed to ensure that accused individuals brought before a magistrate on non-bailable warrants, especially those acquitted by trial courts but later issued warrants by the High Court, are granted bail. These directions also called for comprehensive training for judicial officers on the bail process and mandated a survey to identify and release individuals languishing in jails due to non-service of warrants or inability to secure legal representation in the High Court.
However, the Larger Bench, upon thorough examination and arguments from various legal counsels, found these directions to be in potential conflict with established legal principles, particularly the Supreme Court’s constitution bench judgment in State of U.P. Vs. Poosu (1976), which clarified the appellate court’s power regarding the issuance of non-bailable warrants.
The matter is scheduled for further hearing on April 3, 2024.
Questions Referred to Larger bench:
Questions to be answered by the 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 where in an appeal against acquittal or conviction, as the case may be, the High Court or any other appellate Court has issued non-bailable warrants for securing his presence without any such stipulation therein for release by the Court below, more so when such non-bailable warrant has been issued at a subsequent stage of appeal and not 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 passed in Government Appeal No. 454 of 2022 and order dated 19.01.2024 passed in Government 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 passed in Government Appeal No. 454 of 2022 (State of U.P. vs. Geeta Devi and another) and the directions dated 19.01.2024 in Government Appeal No. 2552 of 1981 (State of U.P. Vs Shamshuddin 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 accused-respondent or the convicted- appellant, as the case may be, in the event he is not appearing in the appellate proceedings though his presence can be secured, without his consent and without any intimation to him, if so, under what circumstances?”
Minority Opinion:
Justice Pankaj Bhatia disagreed with the majority view and delivered a separate judgement refusing to agree with the findings and observations of majority opinion.
Justice Bhatia noted:
“ancillary/ inherent powers can be exercised by a Court as an appellate power or when the entire case is referred, whereas, the same cannot be exercised while discharging the obligations in exercise of a jurisdiction of giving advice, however, it is clear that a Court while referring a question has a power to grant any interim measure as it may deem fit in the facts of the present case, as duly explained in the case of Dr. Jaishri Laxmanrao Patil (Supra).”
He said:
In the event, a ‘case’ express provision. Ex debito justitiae is to do justice between the parties.” referred for decision by Hon’ble the Chief Justice, which are traceable to the First part of Rule 6, there is no doubt that a court on reference has a power to decide the entire case and in that event, the reference court or a larger court constituted by Hon’ble the Chief Justice would be well and duly empowered to decide the case and while doing so, would be inherently having all the powers to pass any orders, which are so required in the interest of justice, however, when the question of law formulated or referred to before a Bench of two or more Judges by Hon’ble the Chief Justice, as are traceable to the Second part of Rule 6, the powers are circumcised by the later part of Rule 6, which, restricts the power and confines it only for the decision on the question so formulated and thereafter, mandates that the matter be returned to the Bench which had referred the matter for disposing of the case on the questions that arise. To that effect as the observations of the Full Bench of this Court in the case of Shriram Industrial Enterprises Limited (Supra).
Justice Bhatia concluded:
I have no hesitation in holding that while exercising the power of answering the question so formulated and referred to a Larger Bench, the reference Court is confined only to answering the question so referred and cannot go beyond answering the questions referred except after framing the questions which so arise in the facts of any case. It is not a ‘Court’ vested with the powers of ancillary and inherent powers and scope of the power of reference Court is confined to the questions so referred. The reference court has no power to pass any interim order specially staying the directions/ order of one of the Division Benches.
Appearances: The Court heard Sri Apoorve Tiwari, Sri Nadeem Murtaza, Sri S. M. Singh Royekwar, Sri Vikas Vikram Singh and Sri Naved Ali, Advocates, as also Dr. V. K. Singh, Government Advocate, and Sri Umesh Verma, Additional Government Advocate-I at length on the powers that can be exercised by Larger Bench in a Reference made to it by a Division Bench.
Case Details:
Case: - CRIMINAL APPEAL No. – 465 of 1999
(Surednra Prasad Misra vs State Of U.P. And Ors).
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