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Allahabad High Court

Abid & Ors. vs State Of U.P. & Anr. on 28 January, 2010

Author: Rakesh Tiwari

Bench: Rakesh Tiwari

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                                                            Court No. 42


                Criminal Misc. Application No.33602 of 2009
                 Abid and others Vs.      State of U.P. & another
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Hon'ble Rakesh Tiwari, J.

Heard learned counsel for the parties and perused the record. In the present case, the deponent is the applicant no. 1, which is being filed under section 482 Cr.P.C. and he is one of the accused persons who claims to have been falsely implicated in the proceedings of complaint case no. 357 of 2009.

The cause of action arose from the application moved under Section 156 (3) Cr.P.C. which was treated as a complaint case by the court below.

The applicants by means of present application are praying for quashing the entire proceedings of complaint case no. 357 of 2009 under Sections 323/324/379/427/504/506 IPC of Police Station- Siyana, District-Bulandshahar pending in the court of Civil Judge/Judicial Magistrate, Court No. 1, Bulandshahar as the said proceedings are absolutely tainted with malafide and also because no offence is actually made out against the applicants under the said provisions of Indian Penal Code.

The prosecution story in brief is that on 25.4.2008 Smt. Samina Begum wife of Abid Ali (applicant no. 1) was alone in the house and at about 1.30 p.m. in the afternoon Kafil, Wasim son of Jarjish, Liyakat and Idrish who used to bare grudge against the applicants barged into her house using abusive language against Smt. Samina Begum and also started breaking the house hold. It is also alleged that they tore the clothes of Samina Begum and assaulted her with kicks, fists and Danda; that Kafil also assaulted her with knife causing injuries upon her body. Aggrieved by the said incident as well in- action of the local police Smt. Samina Begum filed application under section 156 (3) Cr.P.C. on 22.5.2008.

The contention of learned counsel for the applicants is that family members of the applicants have been attacked by opposite party no. 2. They have resisted to abuse of process of Court as the Court has failed to consider the fact that twice earlier the sons of opposite party no. 2 had attacked upon the family members of the applicants in which they had received injuries.

Learned A.G.A. submits that back ground of earlier incident could be strong motive for committing the present crime for which application under section 156 (3) Cr.P.C. has been filed by the opposite party no. 2, father of the accused persons in the earlier incident. It is also submitted that argument of the learned counsel for the applicants regarding abuse of process of law would have carried weight if any of the son of the accused would had filed the application under section 156 (3) Cr.P.C. but it has been filed by the father who is not associated with the sons in the earlier incident. Therefore, the court has to look into the facts and circumstances of each of the incidents and case separately.

Learned counsel for the applicants at this stage submits that in view of the judgment rendered in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. (2009 (3) A.D.J.- 322 (S.C.) and also the Full Bench decision of this Court in Amrawati and another Vs. State of U.P. 2005 (1) AWC-416 a direction may be issued to the lower court for considering their bail applications on the same day.

It appears that there is no illegality in the summoning order dated 20.5.2009 by which son of the opposite party no. 2 was summoned.

This Court has made certain observations in this regard in Criminal Misc. Application No. 34538 of 2009; Meena and others Vs. State of U.P. and others wherein it has been held as under:-

"At this stage it has been brought to the notice of the Court and has been emphasized by the counsels at the Bar that despite the pronouncements in the case of Lal Kamlendra Pratap Singh versus State of U.P. ( 2009 ( 3) A.D.J.-322(S.C.) and also the Full Bench decision of this Court in Amrawati and another versus State of U.P., 2005 (1) AWC-416 the lower Courts attempt to soft paddle and ignore the directions given therein. It has been argued that a hugeinflux of 482, Cr.P.C. petitions filed in this Court is just to seek a direction that thelower Courts should consider and dispose of the bail application in the light of whathas been settled in the above noted two cases.

If it is so, it is not a very laudible judicial attitude exhibited by the lower Courts. The pronouncement of the Apex Court and also of the Full Bench decision of this Court have a binding effect on the Courts below and any attitude showing lack of respect for them can not be countenanced with. Seeking direction from this Court to direct the lower Courts to follow judicial verdict of above noted cases would be simply tantamount to asking this Court to direct the lower Courts to act according to the law. This they are even otherwise supposed to do. Such an attitude naturally results into a cruel waste of public time and money and unduly adds to the already staggering weight of heavy pendency of this Court on the criminal side.

It is note-worthy that the seven Judges Full Bench's decision in Amarwati (supra) makes it clear that this Court had, as a matter of judicial policy, observed complete restraint in issuing directions of same day hearing and abstained itself from meddling with the discretion of the lower Courts in this matter. Such course was adopted with the implicit faith that the lower Courts shall in appropriate cases exercise their discretion. But it is unfortunate to observe that the lower Courts have simply abdicated their powers and have persistently refused to exercise the jurisdiction vested in them. Such an attitude encourages the litigants to bye-pass the remedy available to them in Courts below and file 482 Cr.P.C., petitions in this High Court- a jurisdiction meant to be used in rarest of rare cases alone where the abuse of the Court process is apparent on the face of record or where the ends of justice impel to make such interference.

In these circumstances, this Court deems it proper to direct that if any accused appears before the Courts below and submits application for grant of bail,the pronouncements in the cases of Lal Kamlendra and Amrawati (supra) shall be strictly followed in letter & 4 spirit both. The purpose is obviously to minimize the unnecessary incarceration of the accused. If and in case, he is ultimately to be enlarged on bail finally why should the accused go to the jail because of any inability of the Court to decide their bail applications expeditiously ?. That is the rationale behind the directions given in the pronouncements noted above."

For the reasons stated above, and after going through the impugned order as well as the record, the Court is not inclined to quash the proceedings exercising its inherent discretionary powers under Section 482 Cr.P.C. as no illegality or infirmity is shown by the applicants in the summoning order. The court below may consider the bail prayer of the applicants in accordance with law, if same is made.

The application is accordingly, rejected.

Dated: 28.1.2010 RCT/-