Arrest of accused in appeal from acquittal (Section 390 of CrPc)

In a capital case where an appeal against acquittal has been preferred, it is neither the practice nor is desirable that the accused should be at large while his fate is being discussed in the Court. The High Court has the discretion to exercise the power of granting bail; it is not meant for the protection of the accused, but to ensure that an accused against whom an appeal has been filed may not abscond during the pendency of the appeal.

The Supreme Court while granting special leave to appeal against an order of acquittal passed by the High Court is competent by virtue of Article 142 read with Article 136 of the Constitution to exercise the same powers which the High Court has under Section 390 of the Code. Where special leave to appeal against acquittal is granted by the Supreme Court and the Supreme Court directs the session’s judge to issue a non-bailable warrant, the High Court cannot release the accused on bail.

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Normally, all offences including capital offences the accused-respondents in State appeals against their acquittal are to be considered as eligible to be released on bail during the pendency as such appeals unless there are grave and exceptional reasons for detaining them in custody.