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The existence of a dual legal system will only chip away the legitimacy of the law : SC

“India cannot have two parallel legal systems, “one for the rich and the resourceful and those who wield political power and influence and the other for the small men without resources and capabilities to obtain justice or fight injustice.” The existence of a dual legal system will only chip away the legitimacy of the law. The duty also falls on the State machinery to be committed to the rule of law and demonstrate its ability and willingness to follow the rules it itself makes, for its actions to not transgress into the domain of “governmental lawlessness”.(Para 44)

SOMESH CHAURASIA V. STATE OF M.P. & ANR.

Criminal Appeal Nos 590-591 of 2021.

Decided on July 22, 2021.


The two-judge bench comprising Justice Dr Dhananjaya Y Chandrachud and Justice Hrishikesh Roy decided the present case. The Supreme Court allowed the appeal revoking the suspension of the sentence as granted by the High court.


On 3rd February 2016 by the judgement of the High Court the respondent no2’s sentence was suspended under provision of Section 389(1) of the Code of Criminal Procedure 1973. He was convicted for an offence punishable under Section 302 of the IPC and was imprisoned for life. Following which two applications were filed, one by the State of Madhya Pradesh and the other one by the appellant before the Division Bench of the High Court seeking revocation of the suspension of the sentence and bail granted to the respondent no2. The appellant filed the application on the ground that after the sentence was suspended, FIR No 143 of 2019 was registered against the second respondent at Police Station Hata, District, Damoh, in which he is implicated in the murder of the appellant’s father. In the State's application, the respondent’s criminal history is outlined. The High Court via the judgement on 23July 2019 dismissed the application for revocation of the suspension of sentence/ grant of bail.


A counter affidavit was filed but in the meantime the Additional Sessions Judge(ASJ) issued a summon to the second respondent under Section 319 of the CrPC in the course of the sessions trial arising out of the charge sheet filed in FIR 143 of 2019 but he was resisting arrest. On February 8, the ASJ expressed grave concerns that the accused and the Superintendent of Police ("SP") Damoh were plotting against the judge and colluded with their subordinates. The false allegation had been made against the judge for transfer of the case. However the allegation were proved to be false and the transfer was dismissed by the District Judge. Following which the Director General of Police (“DGP”) of Madhya Pradesh was directed “to immediately ensure the arrest of the second respondent and report compliance by filing a personal affidavit in this Court”. However, DGP filed an affidavit that police were unable to apprehend and arrest respondent no2. It was further reported by the Counsel of the appellant that security had been provided to him by the State of Madhya Pradesh. The DGP by the second affidavit stated the reason for the security provided to the second respondent by the state.


Mr Varun Thakur, learned counsel appearing on behalf of the appellant urged that the second respondent has been implicated in a serious offence punishable under section 302 of the Penal Code after he was enlarged on bail. They further submitted that the investigating authorities were complicit in this and continued to protect the second respondent whose spouse is an MLA.


In his submission, Mr. Shakeel Ahmed, learned Counsel appearing on behalf of the second respondent, asserts that the second respondent is not entitled to an adverse judgment.


The Court stated that, “The High Court by its impugned order dated 23 July 2019 allowed the second respondent, who allegedly committed murder during the period when his sentence was suspended, to continue on bail until his claim that he was being falsely implicated was first investigated in ninety days. In adopting such a procedure, the High Court has clearly transgressed into an unusual domain. The High Court has in effect stultified the administration of criminal justice.”(Para 29)


The court further stated that, “Section 389 (1)1 of the CrPC allows the court to release a convicted person on bail. The second proviso to Section 389 (1) of CrPC provides that where a convicted person has been released on bail, it is open to the public prosecutor to file an application for the cancellation of bail. However, the grant of bail post-conviction is governed by well-defined procedures and parameters. The factors that govern the grant of suspension of sentence under Section 389 (1) have been discussed by thisCourt (speaking through Justice Kurian Joseph) in Atul Tripathi vs. State of U.P.2 in the following terms: “It may be seen that there is a marked difference between the procedure for consideration of bail under Section 439, which is pre conviction stage and Section 389 Code of Criminal Procedure, which is post-conviction stage. In case of Section 439, the Code provides that only notice to the public prosecutor unless impractical be given before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Sessions or where the punishment for the offence is imprisonment for life; whereas in the case of post-conviction bail under Section 389 Code of Criminal Procedure, where the conviction in respect of a serious offence having punishment with death or life imprisonment or imprisonment for a term not less than ten years, it is mandatory that the appellate court gives an opportunity to the public prosecutor for showing cause in writing against such release. 15. Service of a copy of the appeal and application for bail on the public prosecutor by the Appellant will not satisfy the requirement of first proviso to Section 389 Code of Criminal Procedure. The appellate court may even without hearing the public prosecutor, decline to grant bail. However, in case the appellate court is inclined to consider the release of the convict on bail, the public prosecutor shall be granted an opportunity to show cause in writing as to why the Appellant be not released on bail. Such a stringent provision is introduced only to ensure that the court is apprised of all the relevant factors so that the court may consider whether it is an appropriate case for release having regard to the manner in which the crime is committed, gravity of the offence, age, criminal antecedents of the convict, impact on public confidence in the justice delivery system, etc. Despite such an opportunity being granted to the public prosecutor, in case no cause is shown in writing, the appellate court shall record that the State has not filed any objection in writing. This procedure is intended to ensure transparency, to ensure that there is no allegation of collusion and to ensure that the court is properly assisted by the State with true and correct facts with regard to the relevant considerations for grant of bail in respect of serious offences, at the post conviction stage.”(Para 30)


The Court with regarding to the grant of bail stated that, “There are distinct doctrinal concepts in criminal law namely (i) the grant of bail before trial or, what is described as the ‘pre-conviction’ stage; (ii) setting aside an order granting bail when the principles which must weigh in the decision on whether bail should be granted have been overlooked or wrongly applied; (iii) the post- conviction suspension of sentence under the provisions of Section 389(1); and (iv) the cancellation of bail on the ground of supervening events, such as the conduct of the accused during the period of bail, vitiating the continuance of bail.” (para 34)


The Court further stated that, “India cannot have two parallel legal systems, “one for the rich and the resourceful and those who wield political power and influence and the other for the small men without resources and capabilities to obtain justice or fight injustice.” The existence of a dual legal system will only chip away the legitimacy of the law. The duty also falls on the State machinery to be committed to the rule of law and demonstrate its ability and willingness to follow the rules it itself makes, for its actions to not transgress into the domain of “governmental lawlessness”.(Para 44)


With regard to the apprehension expressed by the ASJ, the court stated that, “The apprehensions expressed by the ASJ should be duly enquired into by the High Court of Madhya Pradesh on its administrative side so that if they are found to be true, necessary action should be taken in order to secure the fair administration of justice. We have already taken note of the fact that the SDOP Hata had submitted a complaint to the Registrar General. The complaint by the SDOP as well the the order of the ASJ dated 8 February 2021 shall be placed before the Chief justice of the Madhya Pradesh High Court on the administrative side by the Registrar General within two weeks. The Chief Justice of the High Court of Madhya Pradesh is requested to cause an enquiry to be made on the administrative side so that an appropriate decision in that regard is taken. Having regard to this direction we are not expressing any views on the report which has been submitted by the ADGP and STF, Bhopal. The enquiry as directed above should be concluded expeditiously and preferably within a period of one month from the date of the receipt of a certified copy of this judgment. A copy of this order shall be communicated by the Registrar (Judicial) of this court to the Registrar General of the High Court for compliance. The appeals shall stand disposed of in the above terms”(Para 46)


The court concluded by stating that, “conviction suspension of sentence under the provisions of Section 389(1); and (iv) the cancellation of bail on the ground of supervening events, such as the conduct of the accused during the period of bail, vitiating the continuance of bail.” (Para 39)




Utkarsh Kumar Jayaswal


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