Does a person acquitted of an offence have a right to secure bail if the state government appeals against the acquittal? A full bench of the Bombay high court has reserved its judgment on the issue after two benches of the Bombay high court held conflicting views.
If the government challenges an acquittal, the high court usually calls for action under section 390 of the Criminal Procedure Code. The accused is then arrested and brought before it or a subordinate court after which the court can either imprison the person or grant bail.
A division bench had held in 2010 that the trial court only has to secure the presence of the accused against a surety and there should be no difficulty in releasing him.
The court insisted that this procedure was mandatory and if violated, the sessions judge would be liable for departmental inquiry and contempt of court. The court said that only if the accused cannot furnish the surety can he be sent to jail.
Advocates Revati Dhere and Usha Kejriwal, however, argued that the nature of the offence and possibility of the accused absconding have to be considered while granting bail. In February 2012, another bench referred the case to a larger bench to determine whether an acquitted accused is entitled to bail as a matter of right till the appeal against his acquittal is decided.
The issue was raised first in 2010 in a case where a man was acquitted of raping a minor. Following the state government’s appeal against his acquittal, the person was arrested and granted bail on a surety of Rs20,000. However, the accused is still in prison due to his inability to put together the bail amount.