The Allahabad High Court (Full Bench) has stayed a Division Bench judgment which issued general directions with regard to the grant of bails in criminal appeals.

The court said that these directions have wide reaching impact not only on the administration of justice in the State, but also on the public exchequer.

The Bench (2:1) observed that they possessed all powers ancillary and incidental that may help in deciding the issue, and subsequently said 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. We, therefore, find it appropriate to stay the directions issued by the Divisional Bench at Allahabad in its Judgement dated 18.01.2024 and 19.01.2024 to various State Authorities including the Director, J.T.R.I., State Legal Services Authority and the Chief Judicial Magistrates during the pendency of this Reference."

Counsel Arun Sinha, along with others, appeared for the appellant, while GA Abhinandan Kumar Pandey appeared for the respondents.

The Division Bench had issued the following directions with regard to the release of the accused against whom non-bailable warrants have been issued by the High Court in criminal appeals:

(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.

(c) 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). (d) 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 majority of the Full Bench, while considering the reference, Justice Sangeeta Chandra and Justice Mohd Faiz Alam Khan observed that these directions were in ignorance of the law settled by a Constitution Bench judgement rendered way back in 1976 and followed till date. In that context, it was said that, "The procedure that is being followed under Section 390 of the Cr.P.C. for securing the presence of the accused respondents in Appeals against acquittal having been discussed in detail by the aforecited Constitution Bench and it was also considered by the Full Bench of the Bombay High Court in Balkrishna Mahadev Lad (supra). The Division Bench at Allahabad has unfortunately misread the observations made by the Full Bench of the Bombay High Court."

It was further observed that, "such directions have wide reaching impact not only on the administration of justice in the State, but also on the public exchequer and this Court, prima facie, is satisfied that when the correctness of such directions have been doubted and questions have been framed by a Coordinate Bench, which have been referred to us, including the question regarding as to whether such directions are in accordance with law, we possess all powers ancillary and incidental that may help us in deciding the issue."

Subsequently, they directed the Registry to assign a different number to this Larger Bench Reference with a separate cause title as In Re: "Procedure to be Followed in Hearing of Criminal Appeals". The matter has been listed on 03.04.2024 for further hearing.

Justice Pankaj Bhatia wrote a dissenting judgment, and held 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."


Appellant: Counsels Arun Sinha, Aurag Singh Chauhan, Brij Mohan Sahai

Respondent: GA Abhinandan Kumar Pandey

Cause Title: Surednra Prasad Misra vs State Of U.P. And Ors.

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