Result of U.P. Higher Judicial Service (Main Written) Examination, 2014 Direct Recruitment to U.P. Higher Judicial Service held on 14th, 15th and 16th November, 2014 has been declared. High Court of Madhya Pradesh, Jabalpur notified Advertisement for recruitment additional district judges through M.P. Higher Judicial Service (Entry Level) Direct Recruitment for BAR, Exam 2015 Haryana Judicial Services Examination 2014-Pre is conducted on 10th of Jan 2015. The result is awaited. THE HIGH COURT OF DELHI will hold examination for direct recruitment against 14 vacancies to Delhi Higher Judicial Service on Sunday, the 06th April,2014-Last Date 06.02.2014 13/11/2013: While renewing the term of the appointment of the existing incumbents the State Government is required to consider their past performance and conduct in the light of the recommendations made by the District Judges and the District Magistrates. Therefore, the High Court could not have issued a Mandamus for renewal of the term of respondent Nos. 1 and 2 and other similarly situated persons and thereby frustrated the provisions of LR Manual and Section 24 Cr.P.C .- SUPREME COURT.
HIGH COURT JUDGEMENT
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  Date 9/14/2011 12:00:00 AM
  Court Allahabad High Court
  Parties Smt. Tara Devi and another ......................Appellants Versus State of U.P. ........................................Respondent.
  Appeal Criminal Appeal - 109/2011
  Act Cr.P.C. - 389
  Judgement
 

HIGH COURT OF JUDICATURE AT ALLAHABAD  

Criminal Appeal No.Smt. Tara Devi and another ......................Appellants 
Versus 
State of U.P. ........................................Respondent. 


Smt. Tara Devi and another ......................Appellants 
Versus 
State of U.P. ........................................Respondent. 


Hon'ble Vinod Prasad, J. 


Heard Sri Arvind Srivastava, learned counsel for the appellants and learned AGA in opposition in support and opposition of bail prayers of the two appellants, Smt. Tara Devi and her husband Shivdan Gaur, who were in-laws of the deceased Sona Devi, and who have been convicted for offences U/Ss 306, 498A,201 I.P.C., in S.T. No. 147 of 2008, State of U.P. versus Brajnandan and others, by Additional Session's Judge, Court No. 3 , Mau.
During course of argument the neat question of law which has been mooted for consideration and judicial determination by appellant's counsel is as to whether pending consideration of final relief of bail U/S 389 Cr.P.C., in short code, can an appellant be released on short term bail inspite of newly added proviso to the said section? Submission of appellant's counsel is that requirement of granting time to State counsel to file an objection on the bail prayer of an appellant, who has been convicted and sentenced to ten years or more of imprisonment is restricted only to grant of final relief for bail and not for granting interim bail pending consideration of final relief of bail. According to appellant's contention proviso attached to section 389 of the code does not curtail or abridge power of appellant court to grant interim bail pending consideration final relief of bail. Considered in right prospective said proviso cannot scuttle power of high court to grant interim bail nor it can put an embargo on such a power of this court to grant interim bail to deserving appellants submitted appellant counsel. 
Before deliberating and dilating on the harangued question a brief resume of preceding facts are noted below. 
Deceased Sona Devi, daughter of informant Keshav Prasad Gaur, a clerk in Life Insurance Corporation of India, Bokaro, Jharkhand, tied her nuptial knot with Brajnandan Prasad @ Lallan, son of appellants, on 4.2.2001, according to Hindu customs and rites. In the marriage dowry was offered according to fiscal and economic conditions by the informant but that had not satisfied the rapacious psyche of the bride groom, his parents and relatives, who were further demanding one and half lacs of rupees and a two wheeler. None fulfilment of dowry demand resulted in inflicting torture on the wife Sona Devi. On 30.12.2007 at 8.45.a.m. appellant Shivdan Gaur, father-in-law of Sona Devi, telephoned informant and told him that she is not keeping well. Ten minutes thereafter, one Mohammad Ali, husband of village Pradhan, made a second telephone call to the informant to intimate him that his daughter expired. Subsequently body of Sona Devi was also cremated without waiting for the informant. Since informant sensed that his daughter was poisoned to death by her husband Brajnandan Prasad @ Lallan, father-in-law Shivdan Gaur and mother-in- law Smt. Tara Devi and without waiting for him they, to conceal their crime and obliterate evidences of murder, had cremated corpse of the deceased, that the informant scribed written FIR, Ext. Ka 1 and lodged it on 2.1.2008 at 12.30 p.m. at PS Mohammadabad Gohana, as Crime No.4 of 2008, U/Ss 498A, 304B, 201 IPC and 3/4 D.P. Act. vide Ext. Ka 5, the GD of registration of crime being Ext. ka 6. 
PW7 Ram Bhawan Chaurasia, Circle Officer, commenced investigation into the crime and after conducting routine investigation and observing all the investigatory formalities, charge sheeted the accused for the aforesaid offences. 
Committal Magistrate registered the case against the accused and summoned them to stand trial and finding their case triable by Session's Court committed it to Session's Court for trial where it was registered as S.T.No. 147 of 2008, State versus Brajnandan and others. Additional Session's Judge, Court NO. 3 Mau, who conducted the trial found the case of the prosecution established for offences U/Ss 306,498A, 201 I.P.C. only to the hilt and therefore convicted the accused for those offences and sentenced them to ten years R.I. with fine of Rs.5000/-, the default sentence being 1 year further imprisonment for the first charge, three years SI with fine of Rs. 2000/- the default sentence being six months additional imprisonment on the second count, and for the last offence one year SI with fine of Rs. 1000/-, the default sentence being additional one month imprisonment vide it's impugned judgement and order dated 23.12.2010. All the sentences were ordered to run concurrently. 
Against the said conviction and sentence accused persons filed two separate appeals. Present appeal is by Smt. Tara devi and her husband Shivdan Gaur, mother-in-law and father-in-law, which has been admitted and now their interim and final bail prayer is being decided by this order. Since, during course of argument mooted question noted in the opening paragraph of this order has been harangued that it is now being decided. 
Bail of a convicted accused and suspension of his sentence during pendency of appeal by that convicted accused is governed by section 389 of the code and consequently that section is reproduced below:- 
"389.Suspension of sentence pending the appeal; release on appellant on bail.- (1) Pending any appeal by a convicted person, the Appellant Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond. 
(Provided that the Appellant Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the public prosecutor for showing cause in writing against such release: 
Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.) 
(2)The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto. 
(3)Where the convicted person satisfied the Court by which he is convicted that he intends to present an appeal, the Court shall,- 
(i)where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or 
(ii)where the offence of which such person has been convicted is a bailable one, and he is on bail, 
Order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub-section (1), and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. 
(4)When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced." 
From a perusal of the aforesaid section it is evident that pending disposal of an appeal by a convicted accused, appellate court can suspend execution of his sentence or order under challenge and can release accused appellant on bail or on his own bond. By Amending Act of 2005, which came into force on 23.6.2006, now a proviso has been attached to the parent section in the following terms: 
"Provided that the Appellant Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the public prosecutor for showing cause in writing against such release: 
Provided further that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail." 
Perusal of this newly added proviso ordains that in those appeals where conviction of an accused is for death or life imprisonment or imprisonment for not less than ten years accused appellants shall not be released on bail or on his own bond unless public prosecutor is afforded an opportunity to show cause, in writing, against such release on bail or on bond. Aforesaid proviso further conferred power on public prosecutor to move for cancellation of bail granted to an accused convict. Now, the question to be determined is as to whether, pending consideration of final bail, ie: during period allowed to the public prosecutor to file written objection, can an appellant be released on interim bail? 
On the aforesaid aspect it was submitted by appellant's counsel that Section 389 of the Code, being a beneficial legislation, favouring convicted accused to get bail pending disposal of his appeal, has to be interpreted beneficially in tune with legislative intent as said section anoint power on the appellate court to release convicted appellant on bail and suspend his sentence. Judging from aforesaid angle, power to grant interim bail, pending consideration of final bail, is inherent in appellate court and such a power cannot be curtailed or abridged nor any fetters can be put on court's power in that respect. Proviso attached to the main section cannot limit the scope of the parent section nor can curtail it's exercise and therefore should not be interpreted in a restricted manner and in support of this contention learned counsel relied upon Smt. Amarawati and another versus State of U.P.: 2005 Cr.L.J. 755; Lal Kamlendra Pratap Singh versus State of U.P. and others: (2009) SCC 437; and Dadu @ Tulsi Das versus State of Maharastra: (2000) 8 SCC 437. A court, which is conferred with power to grant final relief can always grant interim relief pending consideration of final relief and appellate court cannot be divested of such a power. Basic principle of interpretation of Statute countenances such a view. Like cardinal principle under General Clauses Act that if an authority has got a power to do a thing it also possesses power to undo it , similarly power to grant final relief inhibit power to grant interim relief. Elaborating further it was submitted that restrictions placed by the added proviso to section 389 of the code is limited in it's scope and application and that too only to grant final relief and not interim relief and it should not be taken to be an impediment on exercise of such a power by the appellate court. According to appellant's submission proviso has been added in the parent section 389 only to allay the fears that bail to a convict can be granted without hearing State counsel. Proviso does not enlarge scope of parent section nor is an independent proviso but it only makes observance of certain procedure mandatory in cases of grievous offences where sentence awarded to the convicted accused is ten years or more of imprisonment. It was further contended that word ''bail' used in proviso is relatable only to ''final bail' and not interim bail as during interim bail custody of convicted accused continues with the court. Next it was contended that proviso has to be read down to harmonise it with parent section in tune with interpretation of Principles of Interpretation Of Statutes. Curtailment of right to seek interim relief of a convict pending consideration of final relief sought by him will offend Article 21 of the Constitution Of India and therefore cannot be approved. Concluding his argument on legal aspect it was submitted that view expressed in aforementioned decisions of Amarawati (Supra) and Lal Kamlendra Pratap Singh (Supra) and the reasoning expressed in those decision be adopted and imported to bring forth appellate court's power to grant interim bail to the appellants in suitable appeals pending consideration his final relief. 
On the merits of the appeal it was contended that there are no specific allegations against the appellants and only because of their relationship that they have been convicted by the trial court. Charge of dowry demand has been found to be false. It was further submitted that for offence U/S ¾ D.P.Act , both the appellants have been acquitted and therefore charge of dowry demand fails. It was next submitted that mother of the deceased has testified favourably in favour of the appellants and therefore entire prosecution story is false and cooked up and on this contention learned counsel relied upon page 19 of impugned judgement. It was further submitted that charge for the offence U/S 304B was found to be disproved and both the appellants have been convicted only for offence U/S 306 IPC and for this submission learned counsel referred to pages 19 and 20 of the impugned judgement. It was next submitted that for offence U/s 498 A IPC maximum sentence is 3 years RI and there is no evidence on record to convict the appellants for the said charge nor there is reliable evidence to hold them guilty U/S 306 IPC as there is no evidence of abatement. It was also submitted that both the appellant's were on bail during trial which liberty they have not misused and their appeal is not likely to be heard in near future. It was also contended that trial court itself found at pages 19/20 of the impugned judgement that allegations of demand of dowry is false. Learned counsel further stated that accused examined three defence witnesses DW1 Mohd Ali, DW2 Dr. D.R.Rai, and DW3 Brijnandan Gaur to support his defence that deceased was being treated well and she was accused even attempted to give her further education through BTC course Learned counsel relied upon pages 3 and 4 of impugned judgement to support appellant's defence. 
On the afore mentioned contentions it was argued that, on the facts of the present appeal, appellants should be allowed to be released on bail. 
Per contra, learned AGA submitted that if the law enjoins filing of written objection prior to consideration of bail of a convict accused, then it also enjoins grant of time while considering interim bail. Learned AGA further submitted that if a thing is required to be done in a particular manner then either it should be done in that manner or not at all. He further submitted that amendment was brought by the legislature so that convicts of death sentence, life imprisonment or for a term of ten years, or more may not be released on bail easily without hearing public prosecutor. Learned AGA, therefore, submitted that no interim bail should be granted to the appellant without giving opportunity to the State counsel to file objection. On merits learned AGA, argued that conviction of the appellants is sustainable and trial court rightly held them guilty. He supported impugned judgement of conviction and sentence by contending that diary of the deceased indicate that she was maltreated with disrespect. He further submitted on the strength that mother did not support prosecution version as she was compelled for it to save Khedan Prasad from conviction , who was her relative. He further pointed out that PW4,5,and 6 have supported prosecution story and therefore evidence of PW3 does not damage prosecution case and for this he pointed out page 19.Ultimately it was argued that bail of the appellants be refused. 
I have considered the contentions raised by rival sides. 
For deciding the legal question debated by rival sides a glimpse of some of the judicial precedents relating to interpretation of Proviso attached with parent section seems essential. On this aspect, it is to be noted, that normal function of a proviso is to provide for an exception or to qualify the parent section with something, which but for the proviso would be within the purview of the enactment, had the proviso not been there. Sometimes proviso is added to explain the scope and ambit of parent section or to allay fears in matter of scope and interpretation of main body of section to which it is attached. This aspect of the matter has been considered in various judicial pronouncements. In the words of Hon. Lush J:- 
"When one finds a proviso to a section, the natural presumption is that, but for the proviso the enacting part of the section would have included the subject-matter of the proviso." 
The same view has been expressed by Lord Macmillan J. in Madras and Southern Maharastra Rly. Co. Ltd. Vs. Bezwada Municipality AIR 1944 PC 71 in the following words:- 

" Proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case." 
The said aspect of the matter came up for consideration before Hon. Hidayatullah J, in Shah Bhojraj Kuverji Oil Mills and Ginning Factory Vs. Subhash Chandra Yograj Sinha: AIR 1961 SC 1596 where His Lordship has been pleased to observe thus:- 
" As general rule a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule." 
Hon.Kapoor,J in the decision of CIT Mysore etc. Vs. Indo Mercantile Bank Ltd.: AIR 1959 SC 713, decided the said question in following words:- 
" The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment." 
From above judicial verdicts what is evident is that a proviso is not normally construed as nullifying the main enactment or taking away a right conferred by it. Further, that a proviso does not travel beyond the scope of main provision to which it is attached. This has so been held by the apex court in Ram Narain Sons Ltd. V. Assistant Commissioner of Sales Tax: AIR 1955 SC 765, where in Apex Court has held as under :- 
" It is a cardinal rule of interpretation, that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other." 
Now analysing ambit and scope of the proviso attached to section 389 of the Code, it transpires that the said proviso relates to only to a procedure and does not affect or curtail power of the appellate court in matter of grant of bail. It nowhere restricts or creates an embargo on such a power. What it provides is only a procedure to be observed while considering bail of a convicted accused sentenced with death, life imprisonment or imprisonment for ten years or more. Thus the legislative intent was never to curtail power of appellate court in matters of grant of bail but only to hear public prosecutor. Scope of such a proviso therefore cannot be stretched to scuttle power of the court to grant interim bail. It was rightly argued that a proviso may carve out an exception but cannot curtail limits of parent section. Further sentences of less than ten years of imprisonment is beyond the purview of said proviso, where it's observance of granting time to the public prosecutor, to file written objection can be eschewed, albeit hearing of public prosecutor may be strictly adhered to. Thus the proviso has been added as an abundant caution only, otherwise, normally, but for certain aberrations, no bail in appeal against conviction is considered without hearing public prosecutor. Mandatory character of granting time to file written objection and hearing public prosecutor has been enacted only to eschew aberrations and block loop holes of hearing State counsel in matters of grant of bail after conviction. It has always been the cardinal principle of law, imbibed in principles of natural justice, that no decision could be made without hearing adverse party to be affected by it. 
Grant of bail after conviction has been subjected to many judicial decisions by the Apex Court where the subject has been dealt with comprehensively. Without being verbose and ostentatious, one of such decision is Kashmira Singh versus State of Punjab: (1977) 4 SCC 291 where Apex Court has held as under :- 
"Now, the practice in this Court as also in many of the High Court has been not to release on bail a person who has been sentenced to life imprisonment for an offence under S. 302 of the Indian Penal Code. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it operates to cause injustice. Every practice of the Court must find its ultimate justification in the interest of justice. The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person would be disposed of within a measurable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified? Would it be just at all for the Court to tell a person : 'We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?' What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a Judge not to be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence." 
In Bhagwan Rama Shinde Gosai v. State of Gujarat (1999) 4 SCC 421 it has been held by the apex court as under :- 
"3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate Court liberally unless there are exceptional circumstances. Of course if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate Court finds that due to practical reasons such appeals cannot be disposed of expeditiously the appellate Court must bestow special concern in the matter of suspending the sentence. So as to make the appeal right, meaningful and effective. Of course appellate Courts can impose similar conditions when bail is granted." 
The above quoted two views have been affirmed by the apex court in one it's recent decisions in Angana and others versus State of Rajasthan: AIR 2009 SC 1669. 
Above referred to decisions of the apex court indicate the guide line to be followed while considering bail of a convicted accused. Any curtailment of right of accused to be released on bail therefore has to be judged from a pragmatic angle looking to the nature of allegations and evidences brought forth to establish the same. Apex court has declared curtailment of right of accused to get bail by statutory enactment ultra vires. In Dadu @ Tulsi Das (Supra) it has been held by the apex court as under :- 
"17. Not providing at least one right of appeal, would negate the due process of law in the matter of dispensation of criminal justice. There is no doubt that the right of appeal is the creature of a statute and when conferred, a substantive right. Providing a right of appeal but totally disarming the Court from granting interim relief in the form of suspension of sentence would be unjust, unfair and violative of Art. 21 of the Constitution particularly when no mechanism is provided for early disposal of the appeal. The pendency of criminal litigation and the experience in dealing with pending matters indicate no possibility of early hearing of the appeal and its disposal on merits at least in many High Courts. As the present is not the occasion to dilate on the causes for such delay, we restrain ourselves from that exercise. In this view of the matter, the appellate powers of the Court cannot be denuded by Executive or judicial process. 
................................................................................. 
24. In Ram Charan v. Union of India, 1991 (9) LCD 160, the Allahabad High Court while dealing with the question of the constitutional validity of Section 32A found that as the Section leaves no discretion to the Court in the matter of deciding, as to whether, after conviction the sentence deserves to be suspended or not without providing any guidelines regarding the early disposal of the appeal within a specified period, it suffers from arbitrariness and thus violative of mandate of Articles 14 and 21 of the Constitution. In the absence of right of suspending a sentence, the right of appeal conferred upon accused was termed to be a right of infructuous appeal. However, Gujarat High Court in Ishwarsingh M. Rajput v. State of Gujarat, (1990) 2 Guj LR 1365 : 1991 (2) Crimes 160, while dealing with the case relating to grant of parole to a convict under the Act found that Section 32-A was Constitutionally valid. It was held : 
"Further, the classification between the prisoners convicted under the Narcotics Act and the prisoners convicted under any other law, including the Indian Penal Code is reasonable one, it is with specific object to curb deterrently habit forming, booming and paying (beyond imagination) nefarious illegal activity in drug trafficking. Prisoners convicted under the Narcotics Act are class by themselves. Their activities affect the entire society and may, in some cases, be a death-blow to the persons, who become addicts. It is much more paying as it brings unimaginable easy riches. In this view of the matter, the temptation to the prisoner is too great to resist himself from indulging in same type of activity during the period, when he is temporarily released. In most of the cases, it would be difficult for him to leave that activity as it would not be easy for the prisoner to come out of the clutches of the gang, which operates in nefarious illegal activities. Hence, it cannot be said that Section 32-A violates Article 14 of the Constitution on the ground that it makes unreasonable distinction between a prisioner convicted under the Narcotics Act and a prisoner convicted for any other offences. 
25. Judged from any angle the Section insofar as it completely debars the appellate Courts from the power to suspend the sentence awarded to a convict under the Act cannot stand the test of constitutionality. Thus Section 32-A insofar as it ousts the jurisdiction of the Court to suspend the sentence awarded to a convict under the Act is unconstitutional. We are, therefore, of the opinion that Allahabad High Court in Ram Charan's case (supra) has correctly interpreted the law relating to the constitutional validity of the Section and the judgment of Gujarat High Court in Ishwarsingh M. Rajput's case cannot be held to be good law." 
In my humble view the above decision by the apex court gives an answer to the question harangued by appellant's counsel. Divesting appellate court of it's power to grant interim relief pending consideration of final relief cannot be countenanced as it will be ultra vires to the constitution. No view curtailing power of the appellate court to grant interim relief can be upheld affecting right of an accused to seek such a remedy, albeit whether to grant such interim bail or refuse it will depend on the facts and circumstances of each case. It is always desirable to evolve a device which preserves powers of the courts as against shedding of it. This view finds support from a decision of this court in Ram Charan Versus Union Of India: 1991 ( Suppl) ACC 67, where this court has struck down section 32-A of NDPS Act as it had taken away right to grant interim relief from this court. Aforesaid section (32-A) was held to offend Article 14 and 21 of the Constitution Of India. It was held therein as under :- 
"We are of the view that there existed no rational or reasonable basis to deny the right of a person to claim suspension, commutation or remission of sentence or to be released on bail if the Court passes such an order, even after conviction while his appeal against the conviction has been pending or otherwise provided under law for the time being in force." 
Adopting and applying above reasoning it is not difficult to hold that any attempt by legislature to curtail power of the courts to grant interim relief although it were anointed with the power to grant final relief has to be abhorred and must be struck down. Thus I find great force in appellant's contention that interim relief of bail can be granted pending consideration final relief of bail, U/S 389 of the code, to a convict accused appellant. 
Judging from another angle, section 389 of the code relates to grant of bail pending appeal by a convict whereas sections 436 to 439 of chapter XXXIII of the code relates with grant of bail pending investigation and trial. There is not much of a difference between guidelines to be adopted by the courts on both the occasions to grant or refuse bail in offences punishable with imprisonment for life and therefore considerations to be kept in mind, on most of the aspects, are common. For a ready reference it is noted here that U/S 439 Cr.P.C. high court or court of session's has to give opportunity to public prosecutor before granting bail to an accused in all cases which are triable by court of Session's or which are punishable with imprisonment for life. Proviso attached with section 439 of the code is reproduced below:- 
"Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice." 
Perusal of above proviso makes it evident that in all cases which are triable by session's court or where punishment is life imprisonment, hearing of public prosecutor is sine qua non before granting bail to an accused. Most of the offences, where punishment is for life or ten years or upward of imprisonment are triable by session's court, which is well perceivable from The First Schedule attached with the code and therefore parameters to grant bail at both the occasions- pre conviction and post-conviction, does not have different scales in procedures to be observed in matter of bail applications. Otherwise also General Rules (Criminal), applicable to lower courts and High Court Rules, applicable to high court, both provide for giving of notice of the bail application to the public prosecutor and as a well ingrained practise hearing of public prosecutor in matter of consideration of bail applications has become the rule of law. Consequently the law relating to the procedure to be followed in matters of consideration of bail applications prior to conviction holds good for post-conviction bail applications also. In this respect a full bench of our court in Smt.Amarawati's case(Supra) has held that interim bail pending consideration of final bail is permissible. It has been held therein as under- 
"40. We again make it clear that the learned Sessions Judge in his discretion can hear and decide the bail application under Section 439 on the same day of its filing provided notice is given to the Public Prosecutor, or he may not choose to do so. This is entirely a matter in the discretion of the learned Sessions Judge. There may also be cases where the learned Sessions Judge on the material available before him may decide to grant interim bail as he may feel that while he has sufficient material for giving interim bail he required further material for grant of final bail. In such cases also he can in his discretion, grant interim bail and he can hear the bail application finally after a few days. All these are matters which should ordinarily be left to his discretion." 
The aforesaid opinion by this court got it's approval by the apex court inLal kamlendra Pratap Singh versus State of Uttar Pradesh And Others: (2009) SCC 437 wherein it has been held by the apex court as under:- 
"Learned counsel for the appellant apprehends that the appellant will be arrested as there is no provision for anticipatory bail in the State of U.P. He placed reliance on a decision of the Allahabad High Court in Amarawati v. State of U.P. in which a seven-Judge Full Bench of the Allahabad High Court held that the court, if it deems fit in the facts and circumstances of the case, may grant interim bail pending final disposal of the bail application. The Full Bench also observed that arrest is not a must whenever an FIR of a cognizable offence is lodged. The Full Bench placed reliance on the decision of this Court in Joginder Kumar v. State of U.P. 
We fully agree with the view of the High Court in Amarawati case and we direct that the said decision be followed by all courts in U.P. in letter and spirit, particularly since the provision for anticipatory bail does not exist in U.P.
In appropriate cases interim bail should be granted pending disposal of the final bail application, since arrest and detention of a person can cause irreparable loss to a person's reputation, as held by this Court in Joginder Kumar Case. Also, arrest is not a must in all cases of cognizable offences, and in deciding whether to arrest or not the police officer must be guided and act according to the principles laid down in Joginder Kumar Case." 
Thus from the above discussion the law has been crystallised that pending consideration of final bail prayer an accused can be granted interim bail and hence the answer to the mooted question is that the proviso to section 389 of the Code does put an embargo nor does it curtails power of appellate court to grant interim bail. A Proviso cannot take away right conferred by parent provision and has to be read down to harmonise it with the parent section. On this aspect support can be had from apex court decision in Dadu alias Tulsidas(Supra) wherein Apex Court has observed as under:- 
"Providing a right of appeal but totally disarming the Court from granting interim relief in the form of suspension of sentence would be unjust, unfair and violative of Art. 21 of the Constitution particularly when no mechanism is provided for early disposal of the appeal. The pendency of criminal litigation and the experience in dealing with pending matters indicate no possibility of early hearing of the appeal and its disposal on merits at least in many High Courts. As the present is not the occasion to dilate on the causes for such delay, we restrain ourselves from that exercise. In this view of the matter, the appellate powers of the Court cannot be denuded by Executive or judicial process". 

In view of the above discussion, right of appellate court to consider interim bail prayer in appropriate case, pending consideration of final relief of bail is preserved even after addition of proviso. The rider provided by the proviso relates to final relief of bail and not interim bail prayer in appropriate cases. Reference to word ''bail' under it denotes final bail and not interim bail. 
Wrapping up the discussion on legal aspect I lean in favour of appellant's submission that pending consideration final relief of bail u/s 389 Cr.P.C. appellate court can grant interim bail to a convicted accused and there is no embargo or fetters on it's power. 
Now turning towards the question as to whether interim bail should be granted on not merits of the appeal indicate that so far as two appellants are concerned, they have been acquitted for the charge u/s 304-B IPC of causing dowry death. On the other hand they have been convicted u/s 306 IPC. The record further reveals that cause of suicide by the deceased was not dowry demand but demand for education and other activities. The said allegation does not bring the demand within the purview of dowry demand. Trial court further recorded a finding that offence u/s 4 of D. P. Act could not have been established against the appellants. The record further indicate that conviction u/s 201 IPC is difficult to be sustained and the mother of the deceased turned hostile and did not support prosecution version. Impugned judgement further indicates that both the appellants were on bail during the trial which liberty they have not misused. It is further noted that there is no likelihood of the appeal being heard in near future and case of the appellants is distinguishable from the case of the husband Brajnandan Prasad alias Lallan. On an overall facts and circumstances, I consider it appropriate to release the appellants on interim bail for a period of two months, pending consideration of their final bail prayer. 
Let the appellants Smt. Tara Devi and Shivdan Gaur be released on interim bail on their furnishing a personal bond of Rs. one lakh and two sureties each in the like amount to the satisfaction of trial court concerned in S.T. No. 147/08, State Vs. Brajnandan Prasad alias Lallan and others, u/s 498-A, 306, 201 IPC, P.S. Mohammadabad Gohana, district Mau, starting from 17.9.2011, on which date they shall be released from jail. Their interim bail shall lapse on 16.11.2011, on which date they shall surrender, unless meanwhile, their prayer for final release on bail is allowed or rejected by this court, and in that eventuality both the appellants shall be bound by that order. Further, office of this court is directed to get the record of trial court within three weeks. Learned AGA is allowed two weeks time to file objection on the bail prayer of the appellants. List this appeal at the top of the list for consideration of final bail prayer of the appellants on 10.10.2011. 
Dt.14.9.2011.