A full bench comprising Justices A M Khanwilkar, P D Kode and R M Sawant heard the arguments.
When the state government challenges an acquittal, the high court orders action under Section 390 of Criminal Procedure Code (CrPC). Accordingly, the High Court may issue a warrant directing the accused to be arrested and brought before it or a subordinate court, and then the court may sent him to prison, or release him on a bail.
A division bench of the high court had held in 2010 that as per Section 390, the trial court has to secure only the presence of the accused (against a surety) so that he does not abscond, and there should be no impediment in releasing him on bail.
The court also said that a sessions judge will be liable for departmental inquiry and contempt of court action if these directions are not followed.
Only if the person cannot furnish a surety, he/she could be sent to jail, and in that case the High Court should be informed immediately, the bench had said.
However, another division bench of the high court, in February this year, faced the same issue in another bail case. It referred the case to a larger bench (full bench) to decide whether an acquitted person is entitled to bail as "a matter of right".
State government lawyers Revati Mohite-Dere and Usha Kejriwal argued today that the nature of the offence and the possibility of the accused absconding have to be factored in, and bail can not be given by default.
