The Supreme Court of India clarified that the appellate court while considering the release of the convict on bail at post-conviction stage has to give an opportunity to the public prosecutor for showing cause in writing against such release where the conviction is for an offence punishable with death or imprisonment for life or for a term not less than ten years.
Differentiating Sections 389 and 439 of Criminal Procedure Code (“Code”), the Court said, “….there is a marked difference between the procedure for consideration of bail under Section 439, which is pre-conviction stage and Section 389 Cr.PC, 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 Cr.PC, 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.”
The Court further added that 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 Cr.PC. 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.