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Allahabad High Court · body

2012 DIGILAW 85 (ALL)

SYED ARMAN v. STATE OF U. P.

2012-01-10

AMAR SARAN, RAMESH SINHA

body2012
JUDGMENT By the Court.—Heard Shri Vimlendu Tripathi, learned A.G.A. and also record which points of argument submitted by the learned A.G.A. 2. Application was given by Syed Arman, Barrack No. 10, District Jail, Moradabad dated 31.8.2010 to the Registrar of the Supreme Court, New Delhi which mentioned that Section 437A Cr.P.C. made available in the Courts of Uttar Pradesh. This letter was forwarded by the Ministry of Law & Justice, Government of India, New Delhi to the Allahabad High Court, Allahabad. 3. The letter mentioned that new provision of Section 437A Cr.P.C. has been introduced which requires that six months’ trial to the prisoners, the Courts released all the accused who are facing trial on bail. In order to facilitate, the accused persons for doing pairvi in their cases so that he could avoid the harassment by the lawyers. 4. It has further mentioned that the Court at Kanpur started interpretation for other case is not followed and that Supreme Court issued directions for releasing all such prisoners. 5. Prima facie, we feel that there is no substance in the interpretation of Section 437A Cr.P.C. by the convicting is to release all the prisoners whose trial is being concluded within six months prior to the disposal of the trial or appeal in order to facilitate pairvi by the prisoners. Section 437A Cr.P.C. is being quoted below : “437A-Bail to require accused to appear before next appellate Court.—(1) Before conclusion of the trial and before disposal of the appeal, the Court trying thee offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months. (2) If such accused fails to appear, the bond stand forfeited and the procedure under Section 446 shall apply.” It only requires that before the conclusion of the trial or the appeal, the Appellate Court is to get the accused to execute the bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Courts. This bail bond is being for six months. This bail bond is being for six months. If the accused fails to appear, the bond shall stand forfeited and the procedure under Section 446 can be applied. 6. The purpose of this Section can be called out from a perusal of the 154 Report of Law Commission, 1996 which mentioned that in many cases of appeals against acquittal have been filed in the higher Courts and have been acquitted and filed to the higher Courts. It becomes very difficult to secure the presence of the said accused persons. Even, again non-bailable warrant issued to serve notice as well as non-bailable warrant for a long time. Such warrants are returned, the police have trace out whereabouts the accused-respondents, as a result, such appeals are pending without being disposed of, since service cannot be effected for the present executed ... could not be saved inspite of issuance of non-bailable warrant. 7. This Report further recommended Form 45 Schedule A of the Court amended suitably, hence by the said report under Section 437A was recommended for binding the accused to appear. Conclusion of the trial Court or disposal of the accused are before the higher Courts. The Commission suggested that the said bond be faced in period of 12 months for the judgment. The Section 437A Cr.P.C. is, therefore, not introduced to allow the accused to be released on trial to the judgment and sent securing the presence of the accused after in the even executed of the trial Court would become and it would be totally projective suggestion to the problem which has to be called by the Law Commission. 8. The judgment of the Division Bench of Lucknow Bench of the High Court, Lucknow has passed an order dated 24.8.2011 in Criminal Appeal No. 74 of 2001, State of U.P. v. Gauri Shankar, wherein it has given this interpretation of Section 437-A Cr.P.C. as directed and pointed out the amended 2001. It has directed all Courts subordinate to the High Court conducted the trial under Section 437A. At that time, the conclusion of trial acquitted that the accused should be made fill up with two points with sureties for ensuring the appearance before the High Court without necessary for filing the appeal. However, the Registry has raised the following 8 points : “1. At that time, the conclusion of trial acquitted that the accused should be made fill up with two points with sureties for ensuring the appearance before the High Court without necessary for filing the appeal. However, the Registry has raised the following 8 points : “1. Whether the provisions of Section 437A will apply in the High Court while deciding criminal appeals against conviction, acquittal and for enhancement of sentence awarded by the trial Court ? 2. The appropriate stage of the trial or appeal, where the direction to execute bail bonds with sureties is required under this section ? 3. Whether the direction to execute bail bonds with sureties will be in the cases where accused is in judicial custody during trial or pending appeal or where the accused is on bail or in both conditions ? 4. Whether the execution of the bail bonds with sureties must be required in all the matters or in some specific or particular matters ? 5. When appeal is pending in the Hon’ble High Court, the bail bonds will be executed/filed in the High Court or in the trial Court with the directions of the High Court ? 6. Whether the provisions of this section contemplate for the release of accused who is in judicial custody or is merely for executing bail bonds only without any release from judicial custody ? 7. The purpose and scope of the execution of bail bonds with sureties under this section ? 8. Such other and further directions/guidelines which the Hon’ble Court may deem appropriate in the interest of justice ?” 9. The matter needs to be examined in better that of prima facie view is first quarry as to whether the State should apply before the High Court when it is deciding any criminal appeal against the conviction, acquittal and for enhancing sentence only by the trial Court. The said provision may be kept in abeyance as in the High Court. There is no system for appearance of the accused at the time of hearing of the regular appeal or during the course of pendency of the cases are disposed of by holding counsel of the A.G.A. There is huge pending cases in the High Court and it is great difficult that any appeal is disposed of with add of the counsel at long time. 10. 10. If the final disposal of the appeal would be further said, because of the accused have not appeared, it could only be delayed the disposal of the appeal by further prolonged period of time and the projective of introducing Section 437A Cr.P.C. of the Law Commission 154 Report vis. speedy disposal of the appeal and for which the initial presence of the accused or his counsel for needed, would be defeated. Also the accused would travel distance only to fill up the bailed bond. Further, problem to the procedure by which the High Court Judge of the Registry would get bailed bond filled up and how the legal sureties could be arranged or the sureties forfeited. No such structure exists in this High Court. Further, more very similar nature of the cases finally decided by the High Court. Either regarding conviction or enhancement of the sentence or appeal before the Supreme Court. We, therefore, feel for similar ——————