Bombay High Court
State Of Mah. Thr. Pso Taluka Morshi ... vs Prakash Manikrao Vighe on 4 November, 2025
Order 0411apeal374.22
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 374 OF 2022.
State of Maharashtra
-VERSUS-
Prakash Manikrao Vighe.
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
Shri D. Sirpurkar, Advocate for the Respondent.
CORAM : M.M. NERLIKAR, J.
DATE : NOVEMBER 04, 2025.
Criminal Application No. /2025.
This matter was mentioned by the learned Counsel for the
respondent in the morning session, stating urgency.
2. The learned Counsel for the respondent has tendered an
application for clarification and appropriate order (un-numbered) in
Criminal Appeal No.374/2022. In paragraph no.3 of the said
application, it is mentioned by the respondent that in furtherance of
the directions of this Court, the respondent has approached the learned
Sessions Court, Amravati to furnish bail bond and comply with the
routine procedure under Section 390 of the Code of Criminal
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Order 0411apeal374.22
Procedure. It is further stated that the learned Sessions Court has
refused to accept the bail bond of the respondent and orally directed
the concerned Police Officer to arrest the respondent, therefore, the
respondent is constrained to approach this Court seeking clarification
of the order dated 15.09.2025.
3. So far as the scope of Section 390 of the Code of Criminal
Procedure is concerned, it has already been settled in catena of
judgments, however, the latest judgment on which reliance is placed by
the learned Counsel for the respondent is in the case of Sudershan
Singh Wazir .vrs. State (NCT of Delhi) and others (2025 SCC Online
SC 461), wherein in paragraph nos.18 and 19, it has been observed as
under :
"18. As we have held earlier, in view of Section
401(1) of the CrPC, the revisional Court can exercise power
under Section 390 in a given case. As can be seen from
Section 390, when an appeal is preferred against an order of
acquittal, the High Court is empowered to issue a warrant
directing that the accused be arrested and brought before it or
any sub-ordinate Court. The Court, before which the accused
is brought, may commit him to prison pending disposal of
the appeal or admit him to bail. Once an appeal against
acquittal is admitted, the status of the person acquitted as an
accused can be said to be restored. That is what is held in the
case of State of Uttar Pradesh v. Poosu & Ors. The object of
Section 390 of the CrPC is that if ultimately the order of
acquittal is converted into the order of conviction, the
accused must be available for undergoing sentence. The
second object of Section 390 is that when an appeal against
acquittal is finally heard, the accused's presence at the hearing
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Order 0411apeal374.22
can be secured. Therefore, there is a power vested in the High
Court to arrest an acquitted accused and bring him before it
or the Trial Court. The object is that the accused remains
under the jurisdiction of the Court dealing with the appeal
against acquittal. It is well settled that an order of acquittal
further strengthens the presumption of innocence of an
accused. Therefore, as a normal rule, where an order under
Section 390 of the CrPC is passed, the accused must be
admitted to bail rather than committing him to prison. It is
well-settled in our jurisprudence that bail is the rule, and jail
is the exception. This rule must be applied while exercising
power under Section 390 of the CrPC, as the position of the
acquitted accused is on a higher pedestal than an accused
facing trial. When an accused faces trial, he is presumed to be
innocent until he is proven guilty. In the case of an acquitted
accused, as stated earlier, the presumption of innocence is
further strengthened because of the order of acquittal. Only
in extreme and rare cases by way of exception can an order
committing an acquitted accused to prison be passed under
Section 390.
19. When a revision application challenging the
order of discharge is admitted for hearing, the High Court
may exercise power under Section 390 by directing the
person discharged to appear before the Trial Court and by
directing the Trial Court to admit him to bail on appropriate
terms and conditions. If such an order is passed after the
admission of the revision application against the order of
discharge, it is a sufficient safeguard for ensuring the presence
of the discharged accused at the time of hearing of the
revision application and for undergoing trial, if the order of
discharge is set aside. If the discharge order is eventually set
aside, such an order under Section 390 of the CrPC passed in
an admitted revision application against the discharge order
will be in the aid of final relief. As held earlier, while
exercising power under Section 390 of the CrPC, the normal
rule is that the acquitted accused should not be committed to
custody, and a direction should be issued to admit him to
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Order 0411apeal374.22
bail. This normal rule should apply all the more to cases
where the challenge is to the order of discharge, as the order
of discharge is on a higher pedestal than an order of
acquittal."
4. Considering the law laid down by the Supreme Court, the
very purpose of passing of order under Section 390 of the Code of
Criminal Procedure is to secure presence of the accused when the
appeal is admitted by this Court. Therefore, where an order under
Section 390 of the Code of Criminal Procedure is passed, the accused
must be admitted to bail, instead of sending him to jail. Hence, the
Application is allowed and the order is clarified in above terms.
5. Office to register the application accordingly.
JUDGE
Signed by: R.G. Dhuriya (RGD)
Designation:Rgd.
PS To Honourable Judge
Date: 04/11/2025 17:53:03
