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Synopsis

The Supreme Court has said that the high court cannot straightaway go on to cancel the bail, without issuing notice or giving a reasonable opportunity, to the accused who was released and his sentence was suspended.

A bench of Justices Abhay S Oka and Pankaj Mithal set aside the Madras High Court's order of July 7, 2023 which cancelled the bail of the accused in a POCSO Act case, as an advocate for appellant Purushothaman sought four weeks adjournment when his appeal was called for hearing.

"For the default of the advocate appointed by the accused, the Appellate Court cannot penalise the accused by proceeding to cancel his bail only on the ground that his advocate has sought adjournment and that also without giving an opportunity of being heard to him on the issue of cancellation of bail," the bench said.

The appeal against conviction filed by the appellant was admitted by the high court and by the order of January 12, 2018, the substantive sentence was suspended and he was ordered to be enlarged on bail.

The high court proceeded to cancel the bail only on the ground that the appellant was enjoying the facility of bail and that his advocate applied for adjournment.

The apex court said, "Under sub-section 1 of Section 389 while suspending the sentence of the appellant-accused who is in jail, the appellate court has to enlarge the accused on bail till the final disposal of the appeal."

It also pointed out that the second proviso to sub-section 1 of Section 389 permits the Public Prosecutor to file an application for cancellation of the bail granted under sub-section 1. The second proviso to sub-section 1 of Section 389 is on par with sub-section 2 of Section 439 of CrPC.

"Therefore, the court can even Suo Motu issue a notice calling upon the accused to show cause why the bail should not be cancelled. Under no circumstances, the bail granted to an accused under sub-section 1 of Section 389 can be cancelled without giving a reasonable opportunity to the accused of being heard," the bench said.

"Unfortunately, the High Court, without even giving an opportunity of being heard to the appellant-accused on the issue of cancellation of bail, has straight away proceeded to cancel the bail granted to him. Such approach on the part of the High Court cannot be countenanced especially when the High Court can always deal with the situation when an adjournment is sought by the advocate for the accused at the time of final hearing of the appeal on unreasonable grounds," the bench added.

The court further said that in a given case, if the advocate appearing for the appellant-accused seeks adjournment on untenable and unreasonable grounds, the Appellate Court is well within its power to refuse the prayer for adjournment. 

"In such a case, one of the courses suggested by a decision of this Court in the case of 'Bani Singh v. State of UP' (1996) can always be adopted by the High Court. The High Court has a discretion to appoint an advocate to espouse the cause of the appellant when the advocate appointed by the appellant refuses to argue the appeal on unreasonable grounds," court said. 

Though the high court has an option of considering the merits of the appeal and deciding the same on merits, it could always adopt the first course of appointing an advocate to espouse the cause of the appellant, the bench suggested.

"We have come across cases where an application for suspension of sentence was rejected by the High Court only on the ground that the advocate for the accused declined to argue the appeal on merits. When only the application for suspension of sentence is listed for hearing, the advocate for the accused is not expected to be ready to argue the appeal," the bench said.

The court thus restored the high court's earlier order granting suspension of sentence and bail to the appellant.

"We make it clear that if the appellant applies for adjournment on any unreasonable or unwarranted ground, it will be always open for the High Court to proceed with the appeal by taking recourse to one of the options laid down in the case of Bani Singh," the bench said.

Case Title: Purushothaman Vs State of Tamil Nadu