16/07/2014
AFR
Court No. - 44
Case :- APPLICATION U/S 482 No. - 21679 of 2014
Applicant :- Munawwar And 9 Ors
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Meraj Ahmad Khan
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Rajesh Dayal Khare,J.
Heard Sri Meraj Ahmad Khan learned counsel for the applicants, Sri
Dharmendra Singhal, Sri Brijesh Sahai and Sri Daya Shankar Mishra learned
counsel for the Bar and the learned A.G.A. for the State respondent.
The applicants, through the present application under Section 482 Cr.P.C.,
have invoked the inherent jurisdiction of this Court with a prayer that their
bail application in Case Crime No. 299 of 2013, under Sections 147, 148, 149,
307, 504, 323, 324 I.P.C., Police Station Asmoli, District Sambhal, be
ordered to be considered expeditiously, if possible on the same day by the
Courts below.
When the matter was taken up before this Court on 01.7.2014 following order
was passed:-
"Heard learned counsel for the applicants and learned A.G.A. for the State.
The applicants, through the present application under Section 482 Cr.P.C.,
have invoked the inherent jurisdiction of this Court with a prayer that their
bail application in Case Crime No. 299 of 2013, under Sections 147, 148, 149,
307, 504, 323, 324 I.P.C., Police Station Asmoli, District Sambhal, be
ordered to be considered expeditiously, if possible on the same day by the
Court below.
Another Bench of this Court, vide order dated 16.06.2014 passed in Criminal
Misc. (482) Application No. 21567 of 2014 had rendered a detailed
Judgement and order wherein similar prayer was sought which was dismissed
with costs on the ground of maintainability of such petition, primary on the
ground, that the scope of Section 482 Cr.P.C. does not permit filing of such
petition for consideration of bail application on the same day.
When the present 482 Cr.P.C. was taken today for arguments, Sri A.B.L.
Gour, Senior Advocate made a mention on behalf of the members of the Bar
that the matter may be deferred for today and may be taken up tomorrow, as
the Judgement aforesaid passed in 482 application no. 21567 of 2014 is to be
considered, thereafter arguments will be advanced regarding maintainability
of such petitions. He further states that he needs 24 hours time for preparing
the same. Similar request has been made by most of the members of the Bar
that the matter may be deferred for today and may be taken up tomorrow.
In view of above, prayer made by members of the Bar, let the matter be
posted for tomorrow.Accordingly, put up this case along with other fresh cases tomorrow i.e. on
02.07.2014."
It is argued on behalf of the applicants that similar 482 applications had
earlier been filed, in which directions were issued by this Court for
consideration of the bail application of the applicants, if possible, on same
day, in view of the settled law as laid down by this Court in the matter of
Smt.Amarawati and Anr. Vs. State of U.P. 2004 (57) ALR 390 and by the
Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ
322 and thus it is prayed that similar directions be issued in order to protect
the applicants from being arrested unnecessarily mechanically or as a routine.
It is argued that only on account of filing of the present case, the applicants
apprehend arrest, which the police is trying to do in a routine manner without
following the due process of law which infringes the fundamental right of
citizens guaranteed under the Constitution of India. It is further argued that
the applicants are not fleeing away from prosecution, but is only seeking
protection with regard to his consideration of application for grant of bail
expeditiously one way or the other so that he may not be put behind bars at
the mere asking or only because a case has been registered against him. It is
further argued that as there is no provisions for anticipatory bail in the State of
U.P. and as the subordinate courts are over burdened with work, therefore,
most of the time bail applications are not heard, on the same day due to
paucity of time or for want of instructions and the accused is sent to jail for no
fault of their's. It is thus, contended that in such circumstances, there is gross
violation of the fundamental rights guaranteed to the citizens of India by the
Constitution and therefore, in order to protect their fundamental right, present
application and such type of applications are being filed under Section 482
Cr.P.C. in the interest of justice and therefore, it is argued that the present
application with such a prayer is maintainable. It is further argued by learned
counsel for the applicants that in order to ensure that the fundamental rights of
a citizen is not infracted and he is not put behind bars without following due
procedure of law, that the present applications are being filed to secure the
ends of justice and therefore, the application under Section 482 Cr.P.C. is
maintainable.
Learned counsel for the applicants has further contended that it is not his
prayer that the bail application of the applicants be considered and granted on
the same day but the only prayer which is being made is that the bail
application of the applicants, if possible, be ordered to be considered on the
same day and appropriate orders, one way or the other be passed thereon so
that the accused is not put to disadvantage or harassment for no fault on their
behest.
Learned counsel for the applicants has further argued that learned single
Judge while passing his judgment and order dated 16.6.2014 in 482
application No. 21567 of 2014 has not expressed any independent view with
regard to the maintainability of the 482 applications for consideration of the
bail application on the same day, but has merely quoted some paragraphs of
the judgment rendered in the case of Trilok Chand Versus State of U.P. and
another and the judgment in the case of Trilok Chand (supra) has followed the
judgment of the Hon'ble Apex Court rendered in the case of Siddharam
Satlingappa Mhetre versus State of Maharashtra 2011 1 SCC 694 which
pertains to the provisions of Section 438 Cr.P.C. and not to Section 482
Cr.P.C.. It is next contended that provisions of Section 438 Cr.P.C. was taken
away from the Uttar Pradesh Judiciary in the year 1978 and taking humanitarian view of the matter, applications under Section 482 Cr.P.C. like
the present one were being filed to ensure that the liberty of a individual is not
curtailed without following the process of law and to ensure that his bail
application be heard and decided one way or the other and only when the bail
is refused, the liberty of a individual can be curtailed. It is thus argued that
without deciding the bail application of the accused one way or the other, the
accused cannot be put behind bars only on the mere asking on the ground of
paucity of time and want of instructions or any other like reasons. Learned
counsel for the applicants has further argued that this Court as well as the
Hon'ble Apex Court has repeatedly held that if a person is arrested, his
reputation in society is tarnished and even if he is granted bail or is acquitted
in future, his personal prestige and reputation in society is adversely affected.
In this regard learned counsel for the applicant has drawn the attention of this
Court to paragraph 33 of the judgment rendered in the case of Smt.
Amarawati and another versus State of U.P. reported in 2004 (2)JIC 630 FB
which is quoted below"-
"33. It may be mentioned that a person's reputation and esteem in society is a
valuable asset, just as in civil law it is an established principle that goodwill of
a firm is an intangible asset. In practice, if a person applies for bail he has to
surrender in Court, and normally the bail application is put up for hearing
after a few days and in the meantime he has to go to Jail. Even if he is
subsequently granted bail or is acquitted his reputation is irreparably tarnished
in society. Often false and frivolous F.I.R. are filed and the innocent person
has to go to Jail and this greatly damages his reputation in society. For
instance, as observed by the Supreme Court in Kans Raj v. State of Punjab.
2000 (2) JIC 353 (SC): 2000 Cr.L.J. 2993 (vide para 5), a tendency has
developed of roping in all relations of the in-laws of the deceased wife in
matters of dowry death. All these factors must be kept in mind by the Court
particularly after the promulgation of the Constitution, which has embodied
the right to liberty as a valuable fundamental right in Article 21 of the
Constitution of India."
Learned counsel for the applicants contends that it is incumbent that a person
is put behind bars after following due procedure as per law and in this regard
learned counsel for the applicants has relied upon the Full Bench Judgment
reported in 1995 JIC 433 in the matter of Dr. Vinod Narain versus State of
U.P. and another and has drawn the attention of this Court to paragraph 50, 51
and 52 of the aforesaid judgment which are quoted below:-
" 50. Thus, in view of well settled legal position any order or direction made
by the Apex Court in aforesaid cases has got a binding effect on all courts
within the territory of India. (See M/s Baver India Limited v. State of
Maharashtra, 1993 (3) SCC 29).
51.As regards the argument based on Article 21 of Constitution, it may be
stated that the object of Article 21 of the Constitution is to prevent
encroachment in the personal liberty of citizen by Executive save in
accordance with law and in conformity with the provisions thereof.
Before a person is deprived of his personal liberty by executive save in
accordance with law and in conformity with the provisions thereof and
in accordance with the procedure established by law, the provisions of
law must be strictly followed and must not be deviated from to the
disadvantage of the person affected. The right to live with human
dignity is a fundamented right of every citizen for pursuit of happiness and excellence. As discussed above, the provisions of Section 157 read
with Section 169 of the Code, envisage that in pursuance of F.I.R. in
all cognizable offences, the arrest is not a must but it always depends
upon the facts and circumstances of each case coupled with the sharp
wisdom of the investigating officer so that he may be able to sift the
grain from the chaff then and there eliminating harassment of innocent
persons.
52.We may observe at this stage that Article 21 is indeed available where
the action is not taken in accordance with the procedure established by
law. In Maneka Gandhi's case (supra), Apex Court while dealing with
this subject ruled that personal liberty includes variety of rights.
Further in Kartar Singh v. State of Punjab, (1994) 3 SCC 569, Apex
Court observed that liberty cannot stand alone but must be paired with
a companion virtue, liberty and morality, liberty and law, liberty and
justice, liberty and common good, liberty and responsibility which are
concomitants for orderly progress and social stablilty."
Learned counsel for the applicants has further argued that even in the case of
cognizable offences, arrest is not a must and the police office should be
guided by the law as laid by the Apex Court in the matter of Joginder Kumar
versus State of U.P. reported in 1994 Cr.L.J. 1981 and has argued that the
Hon'ble Apex Court has held that when the bail application is under Section
437 Cr.P.C., ordinarily the Magistrate should himself decide the bail
application the same day and if he decides in a rare and exceptional case not
to decide it on the same day, he must record his reasons in writing. It is
further held that with regard to the bail application under Section 439 Cr.P.C.,
it is the discretion of the learned Magistrate considering the facts and
circumstances whether to decide the bail application the same day or not and
it is also in his discretion to grant interim bail the same day subject to final
decision of the bail application later. It is contended that the Full Bench
judgment of this Court rendered in the matter of Smt. Amarawati (supra) even
affirmed by the Apex Court in the matter of Lal Kamlendra Pratap Singh
versus State of U.P. and others reported in (2009)4 SCC 437 wherein in
paragraph 6 and 7 it has been held as follows:-
"6. 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. (2005 Cri LJ 755) in which a seven-Judge Full Bench of
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.
(1994)4 SCC 260:(AIR 1994 SC 1349: 1994 AIR SCW 1886).
7. 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 provisions for anticipatory bail
does not exist in U.P."
Learned counsel for the applicants has lastly referred to paragraph 11 and 12
of the judgment rendered by the Apex Court in the matter of Pepsi Foods
Limited versus Special Judicial Magistrate reported in AIR (SC) 1998-0-128
and has contended that the Apex Court has held that the court examined the extraordinary powers under Article 226 of the Constitution of India and also
inherent powers under section 482 of the Cr.P.C. which could be exercised by
the High Court either to prevent the abuse of process of Court or otherwise to
secure the ends of justice. It has further been held that powers conferred on
the High Court under Article 226 and 227 of the Constitution of India and
under Section 482 Cr.P.C. has no limits but more the power, more care and
caution is to be exercised while invoking these powers. He has further argued
that in the aforesaid judgment it was held that the nomenclature under which
the petition is filed is not quite relevant and the purpose to secure the ends of
justice should be focused. It is further contended that in view of the aforesaid
settled principle of law, petitions for consideration of the bail application on
the same day can be filed.
Learned A.G.A. has contended that bare reading of the provisions of Section
482 Cr.P.C. would go to show that application under Section 482 Cr.P.C. for
consideration of the bail application of the applicants on the same day are not
maintainable and therefore, he has argued that present application be
dismissed as being not maintainable.
Another Bench of this Court vide judgment and order dated 16.6.2014 passed
in 482 application NO. 21567 of 2014, while considering the same issue had
dismissed the said application with costs of Rs. 25,000/- by holding that such
type of applications are not maintainable and cannot be filed under Section
482 Cr.P.C. and jurisdiction under Section 482 Cr.P.C. cannot be exercised in
a routine manner but has to be exercised for limited purposes to give effect to
any order under the Code or to prevent the abuse of process of Court or
otherwise to secure the ends of justice. It has further been held that inherent
powers under Section 482 Cr.P.C. should be exercised most sparingly. It has
further been observed by this Court that as such orders in similar identical
petitioners earlier were non speaking orders, therefore, it cannot be treated as
binding precedent.
This Court has further taken note of the fact that on account of mounting
pressure, huge number of cases pending before the court and such type of
cases which cannot be filed under Section 482 Cr.P.C. should not be
entertained specially in view of law laid down by larger Bench of this Court
in the case of Smt.Amarawati and Anr. Vs. State of U.P. which was approved
by the Apex Court in the matter of Lal Kamlendra Pratap Singh Vs. State of
U.P. and also considered recently in the matter of Trilok Chand Vs. State of
U.P. & Anr, no such directions need to be passed. It has been further noted in
the aforesaid order of this Court dated 16.6.2014 that considerable time of the
court is being consumed while dealing with such matters and other important
issues/matters do not get proper time for consideration and therefore, the
aforesaid application has been dismissed with costs.
After hearing the contentions of rival parties and after perusing the aforesaid
judgments referred to in the body of this order, this Court cannot deviate from
the settled principle of law that the liberty of a individual, which is a
fundamental right guaranteed under the Constitution of India cannot be
infracted without following the due procedure of law. This Court as well as
the Hon'ble Apex Court has repeatedly held that ordinarily the bail application
filed by the accused be considered and decided one way or the other on the
same day and if the same cannot be done for exceptional reasons, the reasons
are to be recorded in writing. It is further observed that in exceptional
circumstances and if a case is made out by the counsel for the applicant, the application for consideration of the bail application on the same day can be
filed to secure the ends of justice in the facts and circumstances of the case.
The Full Bench decision of this Court in the matter of Smt. Amarawati (supra)
and the judgment of the Hon'ble Apex Court in the matter of Lal Kamlendra
Pratap Singh (supra) has already dealt with the matter in detail with regard to
the consideration of the bail application of the accused and therefore, in the
opinion of the Court, no further directions need to be issued. However the
learned counsel for the applicants as well as the other members of the Bar
present stated that the aforesaid judgments of this Court as well as the Apex
Court along with other judgments laying down identical law are not being
followed by the courts below and therefore, it is prayed that a general
direction be issued so that the principle of law as laid by the Full Bench of
this Court which has been affirmed by the Apex Court are followed in letter
and spirit.
The law laid down by the Apex Court shall be binding on all the courts.
Article 141 and 144 of the Constitution of India provides that all authorities,
civil and judicial in the territory of India shall act in aid of and in accordance
with law laid down by the Apex Court. This Court has no doubt that the
courts below are following the judgment and orders passed by this Court as
well as by the Hon'ble Apex Court.
However, in view of the above submissions made by the learned members of
the Bar, a fresh direction is again being issued to the courts below through the
District Judges concerned throughout the State of U.P. to follow the law laid
down by the Apex Court in the matter of Lal Kamlendra Pratap Singh (supra)
as well as the Full Bench decision of this Court in the matter of Smt.
Amrawati (supra) in letter and spirit which has also been approved by the
Apex Court, which directions are to be transmitted to all the District Judges of
the State through the Registrar General of this Court forthwith.
The District Judges concerned shall circulate the copy of this order to the
concerned Magistrates dealing with the bail matters so that the settled
principles of law by this Court as well as the Hon'ble Apex Court is strictly
followed, under intimation to this Court.
Present application accordingly disposed of.
A copy of this order be placed before the Registrar General of this Court for
immediate compliance.
Order Date :- 3.7.2014
