Allahabad High Court
Meena And Others vs State Of U.P. And Another on 5 January, 2010
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
Court no. 42
A.F.R.
Criminal Misc. Application No. 34538 of 2009
Meena and others versus State of U.P. and others
Hon'ble Rakesh Tiwari, J.
Heard Sri S.P. Mishra, learned counsel for the applicants, Sri Karuna Nand Bajpai, learned A.G.A. for the respondents and perused the record.
This application under Section 482 Cr.P.C. has been filed by the applicants for quashing of the summoning order dated 21.5.2008 passed by the Judicial Magistrate, Hasanpur, District J.P. Nagar in complaint case no. 123 of 2008, under Sections 451, 504, 506, 323 and 380 IPC, PS Hasanpur, District J.P. Nagar and for stay of the further proceedings in the aforesaid complaint case.
From perusal of the impugned summoning order it appears that the same has been passed after hearing and there is an allegation against applicant no.1 , Meena wife of opposite party no.2, Rajendra as well as against Seria, Chandia, Hardeo, Bhuria, Smt. Prem, Bhura, Ram Kishan, Desh Raj and Leeladhar alleging that they had gone to the house of opposite party no.2 and beaten him and looted some money. In so far as applicant no.1 is concerned, she is the wife of Rajendra, opposite party no.2 and Criminal Misc. Case No. 75 of 2008, under Section 125 Cr.P.C. is pending before the Court below, therefore, it can not be said that she had looted her own house in which she was living with her husband. The rest of the allegations are regarding abusing and beating of the opposite party by the persons who had come along with her. There is no injury report. The only contention of learned counsel for the applicants is that the allegations have been made against the applicants as a counterblast to her application under Section 125 Cr.P.C..
In the facts and circumstances of the case that applicant no.1, Meena is a lady, she may be given the benefit of Section 437 Cr.P.C. while considering her application for bail. After going through the impugned order as well as the record, the Court is not inclined to quash the impugned order exercising its inherent discretionary powers under Section 482 Cr.P.C. as no illegality or infirmity is shown by the applicants in the impugned order. The Court below may consider the bail prayer of the applicants in accordance with law.
The application is accordingly, rejected.
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 2 soft paddle and ignore the directions given therein. It has been argued that a huge influx of 482, Cr.P.C. petitions filed in this Court is just to seek a direction that the lower Courts should consider and dispose of the bail application in the light of what has 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 & 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.
There may be some exceptional circumstances which may impel the Courts below not to enlarge the accused on interim bail during the pendency period of the bail application. The class and category of cases in which the lower Courts may not exercise their discretion in favour of the accused regarding their enlargement on interim bail has been observed by Hon. R.D.Khare, J. in another Criminal Misc. Application thus:-
(I) If the case involves a grave offence like murder, dacoity, robbery rape etc.or it is necessary to arrest the accused and bring his 3 movements under restraint to infuse confidence among the terror stricken victims and society at large and for protecting witnesses. (II) If the case involves an offence under the U.P. Gangsters Act and in similar statutory provisions.
(III) If the accused is likely to abscond and evade the processes of law. (IV) If the accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint. (V) If the accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
(VI) If the offence is in the nature of a scam, or there is an apprehension that there may be interference with the investigation or for any other reason the Magistrate/Competent Court feels that it is not a fit case for releasing the applicant on interim bail pending the hearing of the regular bail. (VII)An order of interim bail can also not be passed by a Magistrate, who is not empowered to grant regular bail in offences punishable with death or imprisonment for life or under the other circumstances enumerated in Section 437 Cr.P.C.
(VIII) If the Public Prosecutor/ Investigating Officer can satisfy the Magistrate/ Court concerned that there is a bonafide need for custodial interrogation of the accused regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime, or for obtaining information leading to discovery of material facts.
In case the Courts below have any such reasons as illustrated above not to comply with what has been provided and contemplated in the above noted two cases cited above, they must pass an order in writing giving reasons for not exercising their discretion in favour of the accused.
Keeping in view the general importance of the issue involved, the Registry of this Court is directed to circulate this order to all the Subordinate Courts through the District Judge concerned for proper guidance and compliance. Copy of the order shall also be provided to the Bar Associations concerned for information to the members.
Dated 5.1.2010 CPP/-