Allahabad High Court
Ankur Maurya & Others vs State Of U.P. & Another on 31 August, 2020
Author: Virendra Kumar Srivastava
Bench: Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 28 Case :- U/S 482/378/407 No. - 2072 of 2020 Applicant :- Ankur Maurya & Others Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Shailendra Kumar Dubey,Kuldeep Gupta Counsel for Opposite Party :- G.A. Hon'ble Virendra Kumar Srivastava,J.
In view of the COVID-19 pandemic situation, the matter is being taken in e-court through video conferencing.
Heard learned counsel for the applicants, Sri G.D. Bhatt, learned A.G.A. for the State and perused the record.
The instant application under Section 482 Cr.P.C. has been filed for quashing the charge sheet dated 09.01.2020 and summoning order dated 10.07.2020 passed by the Special Judge / SC/ST Act, Ambedkar Nagar in Case Crime No.36/2020 and Computer Case No.180/2020 (State Vs. Rahul and others) arising out of Case Crime No.625/2019, under Sections 147, 308, 323, 504, 506 I.P.C. & 3(1) (D) and 3(1)(Gha) SC/ST Act, Police Station Akbarpur, District Ambedkar Nagar.
Learned counsel for the applicants submits that though the applicants are innocent and have been falsely implicated but they are not pressing the matter on merit. Learned counsel further submits that applicants are ready to surrender before the lower Court if a direction is given to consider their bail application in the light of law laid down in Lal Kamlendra Pratap Singh Vs. State of U.P. and others, (2009) 4 SCC 437.
Learned A.G.A. vehemently opposes and submits that in the instant case, the summoning order dated 10.07.2020 as well as whole proceeding has been challenged, whereas in view of Section 14-A of S.C./S.T. Act, such order is appealable order. Learned A.G.A. further submits that applicants are involved in causing brutal injury to a member of Schedule Caste and Schedule Tribe, wherein cognizable offence is made out and the merit or demerit of the case cannot be adjudged at this stage. Learned A.G.A. further submits that in offences pertaining to atrocity to the member of Schedule Caste and Schedule Tribe, the provision of anticipatory bail is also not applicable. Learned A.G.A. further submits that prayer of the applicants is liable to be refused.
From perusal of records, it transpires that a specific allegation has been made against the applicants that they had caused injury by lathi & danda by hurling abuses to one Mukesh, Arun and Vipin, whereby two injured became unconscious.
Thus from perusal of record, a cognizable offence is made out. Hence prayer for quashing the aforesaid proceeding is refused.
So far as the prayer of applicants that a direction is required to be given to the concerned Court that in the case of surrender, the bail application of the applicants be decided in view of law laid down by the Hon'ble Supreme Court in Lal Kamlendra (Supra) is concerned, the Hon'ble Apex Court in aforesaid case while considering the matter has held as under:
"We fully agree with the view of the High in Amaravati's case (supra), and we direct that the said decision be followed by all Courts in U.P. in letter and spirit, particularly since the provision for anticipatory bail does not exist in U.P. In appropriate cases, interim bail should be granted pending disposal of the final bail application, since arrest and detention of a person can cause irreparable loss to a person's reputation, as held by this Court in Joginder Kumar's case (Supra). Also, arrest is not a must in all cases of cognizable offences, and in deciding whether to arrest or not the police officer must be guided and act according to the principles laid down in Joginder Kumar's case (Supra)."
(Emphasis supplied) Thus it is clear that the Hon'ble Supreme Court taking into consideration that in U.P., the provision of anticipatory bail was not applicable has passed the aforesaid direction/order.
In State of Telangana vs. Habib Abdullah Jeelani and others, AIR 2017 SC 373 the Apex Court, while setting aside the order/direction passed by the High Court that police shall not arrest the applicants during pendency of the investigation, discussing the law laid down by the Apex Court in Lal Kamlendra (Supra), Amravati (Supra) and various case laws on this point of extra ordinary power as well as inherent power of the High Court under Article 226 of the Constitution and under Section 482 Cr.P.C., has held as under:-
"18. At this juncture, we are obliged to refer to the decision in Hema Mishra v. State of Uttar Pradesh and ors (AIR 2014 SC 1066). In the said judgment, the Court was dealing with the power of the High Court of Allahabad pertaining to grant of pre-arrest bail in exercise of extraordinary or inherent jurisdiction and it is significant, for in the State of Uttar Pradesh Section 438 CrPC has been deleted by the State Legislature. Be it noted that constitutional validity of the said deletion was challenged before the Constitution Bench in Kartar Singh v. State of Punjab (1994 Cri. L.J. 3139) wherein it has been held that deletion of the application of Section 438 CrPC in the State of Uttar Pradesh is constitutional. The Constitution Bench has ruled held that claim for pre-arrest protection is neither a statutory nor a right guaranteed under Article 14, Article 19 or Article 21 of the Constitution of India. The larger Bench has further observed thus:-
"368. (17). Though it cannot be said that the High Court has no jurisdiction to entertain an application for bail under Article 226 of the Constitution and pass orders either way, relating to the cases under the 1987 Act, that power should be exercised sparingly, that too only in rare and appropriate cases in extreme circumstances. But the judicial discipline and comity of courts require that the High Courts should refrain from exercising the extraordinary jurisdiction in such matters."
.............
.............
23. We have referred to the authority in Hema Mishra (AIR 2014 SC 1066) (supra) as that specifically deals with the case that came from the State of Uttar Pradesh where Section 438 CrPC has been deleted. It has concurred with the view expressed in Lal Kamlendra Pratap Singh (AIR 2009 SC (Supp) 2178). The said decision, needless to say, has to be read in the context of State of Uttar Pradesh. We do not intend to elaborate the said principle as that is not necessary in this case. What needs to be stated here is that the States where Section 438 CrPC has not been deleted and kept on the statute book, the High Court should be well advised that while entertaining petitions under Article 226 of the Constitution or Section 482 CrPC, exercise judicial restraint. We may hasten to clarify that the Court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, has the jurisdiction to quash the investigation and may pass appropriate interim orders as thought apposite in law, but it is absolutely inconceivable and unthinkable to pass an order of the present nature while declining to interfere or expressing opinion that it is not appropriate to stay the investigation. This kind of order is really inappropriate and unseemly. It has no sanction in law. The Courts should oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the Court on the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is the obligation of the court to keep such unprincipled and unethical litigants at bay.
24. It has come to the notice of the Court that in certain cases, the High Courts, while dismissing the application under Section 482 CrPC are passing orders that if the accused-petitioner surrenders before the trial magistrate, he shall be admitted to bail on such terms and conditions as deemed fit and appropriate to be imposed by the concerned Magistrate. Sometimes it is noticed that in a case where sessions trial is warranted, directions are issued that on surrendering before the concerned trial judge, the accused shall be enlarged on bail. Such directions would not commend acceptance in light of the ratio in Rashmi Rekha Thatoi (supra), Gurbaksh Singh Sibbia (AIR 1980 SC 1632) (supra), etc., for they neither come within the sweep of Article 226 of the Constitution of India nor Section 482 CrPC nor Section 438 CrPC. This Court in Ranjit Singh (2013 AIR SCW 5728) (supra) had observed that the sagacious saying "a stitch in time saves nine" may be an apposite reminder and this Court also painfully so stated."
(Emphasis supplied) In Uttar Pradesh now the provision of anticipatory bail (Section 438 Cr.P.C.) has been enforced vide U.P. Act No.4 of 2019, whereas the provision of anticipatory bail is not applicable in offence of S.C./S.T. (Prevention of Atrocities) Act, 1989.
It is supposed that law declared by the Hon'ble Apex Court is binding on all Courts and the Courts are bound to follow the law declared by the Hon'ble Apex Court as well as the existing laws.
In view of above, the prayer of the applicants is misconceived and not maintainable, hence refused.
Accordingly, the application is dismissed.
Order Date :- 31.8.2020 S. Verma