Allahabad High Court
Brahm Singh & 2 Others vs State Of U.P. & 2 Others on 8 July, 2016
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 49
Case :- CRIMINAL MISC. WRIT PETITION No. - 15609 of 2016
Petitioner :- Brahm Singh & 2 Others
Respondent :- State Of U.P. & 2 Others
Counsel for Petitioner :- Chandra Prakash Singh
Counsel for Respondent :- G.A.,D.S. Pandey
Hon'ble Ramesh Sinha,J.
Hon'ble Shamsher Bahadur Singh,J.
1. Heard Sri Chandra Prakash Singh, learned counsel for the petitioners, Sri D.S. Pandey, learned counsel for respondent no.3, learned A.G.A. for the State and perused record.
2. This petition has been filed by the petitioners with a prayer to quash the F.I.R. Dated 11.06.2016 in Case Crime No. 361 of 2016 under Sections 420, 406, 504 and 506 I.P.C. at Police Station Sector-58, Noida, District Gautam Budh Nagar.
3. Prosecution case in brief is that F.I.R. was lodged by informant, respondent no.3, Surendra against petitioners alleging that an agreement to sell was executed by petitioner nos. 1 and 2, namely, Brahm Singh and Budhram on 7.5.2014 in his favour by which it was agreed that sale deed would be executed of Khasra No. 324 situated in Village Bishanpur, District Gautam Budh Nagar within three months for total consideration of Rs.39 lacs for which he also made a part payment of Rs.11 lacs and further gave Rs.5 lacs to petitioner nos.1 and 2. Petitioner no.3, Sant Ram is a witness of said agreement to sell. It is further alleged that when respondent no.3 required petitioner nos.1 and 2 to execute sale deed, he came to know that said land has been acquired by NOIDA authorities, hence he lodged F.I.R. against petitioners for the aforesaid offences at the concerned police station.
4. It is argued by learned counsel for the petitioners that it was the respondent no.3 who has not come forward to honour the agreement to sell and the allegation of respondent no.3 that plot in question has been acquired by NOIDA authorities is absolutely incorrect as the same being Abadi land, the NOIDA authorities have not acquired the same. He submitted that petitioners are still ready to execute the sale deed provided terms and conditions of agreement to sell is honoured by respondent no.3.
5. Per contra, learned counsel for respondent no.3 has vehemently opposed argument of learned counsel appearing for petitioners and has submitted that as the land in question has been acquired by NOIDA authorities and he was also not informed about said fact and Rs.11 lacs has been given by him to petitioner nos. 1 and 2 and further Rs.5 lacs has also been parted with but petitioners themselves have not come forward to execute the sale deed in view of agreement to sell entered into between the parties. In spite of the fact that land has been acquired by NOIDA authorities, petitioners played fraud upon respondent no.3 and they fraudulently and dishonestly have taken Rs. 16 lacs from him knowing fully that said agreement to sell cannot be executed.
6. The Full Bench of this court in Ajit Singh @ Muraha v. State of U.P. and others (2006 (56) ACC 433) reiterated the view taken by the earlier Full Bench in Satya Pal v. State of U.P. and others (2000 Cr.L.J. 569) that there can be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the F.I.R. or there is any statutory restriction operating on the power of the Police to investigate a case as laid down by the Apex Court in various decisions including State of Haryana v. Bhajan Lal and others (AIR 1992 SC 604) attended with further elaboration that observations and directions contained in Joginder Kumar's case (Joginder Kumar v. State of U.P. and others (1994) 4 SCC 260 contradict extension to the power of the High Court to stay arrest or to quash an F.I.R. under article 226 and the same are intended to be observed in compliance by the Police, the breach whereof, it has been further elaborated, may entail action by way of departmental proceeding or action under the contempt of Court Act. The Full Bench has further held that it is not permissible to appropriate the writ jurisdiction under Article 226 of the constitution as an alternative to anticipatory bail which is not invokable in the State of U.P. attended with further observation that what is not permissible to do directly cannot be done indirectly.
7. The learned counsel for the petitioners has not brought forth anything cogent or convincing to manifest that no cognizable offence is disclosed prima facie on the allegations contained in the F.I.R. or that there was any statutory restriction operating on the police to investigate the case.
8. Having scanned the allegations contained in the F.I.R. the Court is of the view that the allegations in the F.I.R. do disclose commission of cognizable offence and, therefore, no ground is made out warranting interference by this Court. The prayer for quashing the same is refused.
9. The petition lacks merit and is accordingly, dismissed.
10. After passing of aforesaid order, learned counsel for the petitioners submitted that a direction be given to courts below for consideration of bail of the petitioners in the light of 7 Judges' Bench decision in the case of Amrawati and another Versus State of U.P. reported in 2004 (57) ALR 290 and as approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. reported in 2009 (3) ADJ 322 (SC). It is submitted by him that it is prevalent practice in District Court at Gautam Budh Nagar as well as in other district courts of the State that bail applications normally filed are not being heard and disposed of in the light of Amrawati and another Versus State of U.P.(supra) as also approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. (supra) and are posted for some other date and the accused has to go to jail unnecessarily and his fundamental right to liberty as enshrined under Article 21 of the Constitution of India is violated. Hence necessary direction be given to courts below by this Court.
11. We have examined the above contention of learned counsel for the petitioners and find that said apprehension of petitioners' counsel appears to be unfounded as the petitioners have neither yet moved bail application before the court below nor surrendered.
12. The law in this regard has been settled by 7 Judges' Bench decision dated 15.10.2004 in the case of Amrawati and another Versus State of U.P.(supra) as also approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. (supra) and is not being followed by the courts below, hence the learned counsel for the petitioners prayed for a direction to be given therefor. Moreover, there is no material before us to accept the contention of learned counsel for the petitioners in the instant case that the law which has been propounded by 7 Judges' Bench decision in the case of Amrawati and another Versus State of U.P.(supra) as also approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. (supra) are not being followed in the State of U.P. also appears to be not correct as we have not come across any such case that law of 7 Judges' Bench decision in the case of Amrawati and another Versus State of U.P.(supra) as also approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. (supra) has been placed by the accused before court below and the same was not complied with by the courts below. Therefore, said prayer is also hereby refused.
13. Before parting with the case we find to observe that apprehension which is in the mind of legal fraternity and the litigants in the concerned district of the State that law which has been settled by 7 Judges' Bench decision in the case of Amrawati and another Versus State of U.P.(supra) as also approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. (supra) is not being followed by the District Courts appears to be some time correct also as this Court is flooded with criminal misc. writ petitions under Articles 226/227 of Constitution of India, 482/483 Cr.P.C. Applications and criminal revisions. When such petitions are being rejected on merits, very often prayer is made by learned counsel for the parties that direction be given to the court below to consideration bail application in the light of 7 Judges' Bench decision in the case of Amrawati and another Versus State of U.P.(supra) as also approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. (supra) and it has become a normal feature these days because some slackness on the part of courts below in not following guidelines and directions given in 7 Judges' Bench decision in the case of Amrawati and another Versus State of U.P.(supra) as also approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. (supra).
14. We find that after passing of judgement in 7 Judges' Bench decision in the case of Amrawati and another Versus State of U.P.(supra) as also approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. (supra) a circular has also been issued by Registrar General of this Court to the judicial officers in judgeship for their guidance vide C.L. No.44/2004 Dated: 16th October, 2004 for strict compliance of the directions given by the Hon'ble Court in Cri.Misc. Application No.2154 of 1995 (Smt. Amarawati and another Vs. State of U.P.) and the same is quoted below:
"I am directed to say that the Full Bench comprising of seven Judges of the Court in Cri.Misc. Application No.2154 of 1995-Smt. Amarawati and another Vs. State of U.P. has considered to following questions:-
1. Whether the arrest of an accused is a must if cognizable offence is disclosed in the FIR or in a criminal complaint;
2. Whether the High Court can direct the Subordinate Courts to decide the Bail Application on the same day it is filed; and
3. Whether the case Dr. Vinod Narain v. State of U.P., Writ Petition No.3643 of 1992, reported in 1995 (32) ACC 375, has been correctly decided by the five Judges Full Bench of this Court.
Upon consideration of the above questions, the Full Bench has ordered as under:-
(1) Even if cognizable offence is disclosed, in the FIR or complaint the arrest of the accused is not a must, rather the police officer should be guided by the decision of the Supreme Court in Joginder Kumar v. State of U.P., 1994 Cr. L.J. 1981 before deciding whether to make an arrest or not.
(2) The High Court should ordinarily not direct any Subordinate Court to decide the bail application the same day, as that would be interfering with the judicial discretion of the Court hearing the bail application. However, as stated above, 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. As regards the application under 439 Cr.P.C., it is in the discretion of the learned Sessions Judge 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 the final decision on the bail application later.
(3) The decision in Dr. Vinod Narain v. State of U.P. (supra) is incorrect and is substituted accordingly by this judgment.
I am, therefore, directed to send herewith a copy of the judgement and order dated 15.10.2004 passed by the Full Bench of this Court in Cri. Misc. Application No. 2154 of 1995,aforesaid for your information and strict compliance of the directions as contained therein. The directions of the Court may kindly be brought to the notice of all the Judicial Officers in the Judgeship for their guidance."
15. But filing of writ petitions before this Court for this purpose shows that guidelines are not being strictly complied with by the courts below. Moreover, seeing slackness on the part of the courts below in not complying with the directions issued in 7 Judges' Bench decision in the case of Amrawati and another Versus State of U.P.(supra) as also approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. (supra). Learned Single Judge of this Court in Criminal Misc. Application No.21679 of 2014 (Munawwar and others Versus State of U.P. and another), after considering all aspects of aforesaid non compliance, passed order dated 3.7.2014, disposing of 482 Cr.P.C. application wherein a prayer was made for consideration of bail application expeditiously, if possible on the same day in the light of 7 Judges' decision in the case of Amrawati and another Versus State of U.P.(supra) as also approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. (supra). Learned Single Judge, seeing a large number of such petitions coming before him, appears to have heard learned members of bar and their contentions for justifying the prayer seeking direction from this Court for expeditious disposal of bail application in the light of 7 Judges' Bench decision in the case of Amrawati and another Versus State of U.P.(supra) as also approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. (supra) has also rejected said prayer and had once again directed courts below in State of Uttar Pradesh through Registrar General for strict compliance of guidelines 7 Judges' Bench decision in the case of Amrawati and another Versus State of U.P.(supra) as also approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. (supra) in letter and spirit and also gave direction that said judgement be transmitted to the District Judges of all judgeships in Uttar Pradesh through Registrar General forthwith, who in pursuance of the same issued Circular Letter No.12869/Admin.'G-II' Dated: Allahabad: 04.09.2014, for compliance of order dated 03.07.2014, passed by this Court in Criminal Misc. Application (482) No.21679 of 2014(Munawwar and others Versus State of U.P. and another) which is quoted below:-
"Sir, While deciding the above mentioned Criminal Misc. Application Hon'ble Court has taken a serious note upon not following up the guidelines laid down by the Hon'ble Full Bench of this Court in the matter of Smt. Amarawati (supra) and by the Hon'ble Apex Court in the matter of Lal Kamlendra Pratap Singh (supra) in connection with considering the applications of the bail.
It is therefore directed by Hon'ble Court that the guidelines laid down by the Hon'ble Apex Court and by the Hon'ble High Court in the matter of Lal Kamlendra Pratap Singh (supra) respectively be followed up in letter and spirit.
I am, therefore, directed to request you to circulate a copy of the enclosed order dated 03.07.2014, passed by Hon'ble Court in Criminal Misc. Application (482) No.21679 of 2014 titled Munawwar and others Vs. State of U.P. and another amongst all the Judicial Officers working under your supervision and control highlighting those aspect which require compliance by them."
16. It is very surprising and painful to note that in spite of issuance of two circulars in compliance of this Court's order, petitions are regularly coming before this Court and written or oral prayer is being made seeking direction for consideration of bail in the light of 7 Judges' Bench decision in the case of Amrawati and another Versus State of U.P.(supra) as well as by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. (supra). Such petitions have become regular feature and has flooded High Court in its various criminal jurisdictions, filing of such petitions has to be discouraged as the law has already been settled in 7 Judges' Bench decision in the case of Amrawati and another Versus State of U.P.(supra) as also approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. (supra), hence no separate order is required to be passed in each and every case for a direction of this Court. Decisions of the Full Bench of this Court as well as of Hon'ble Apex Court are binding upon courts below which have to be followed by them in letter and spirit and this Court cannot allow such petitions and prayer made therein on behalf of accused who can approach this Court and deny such benefit of said order to the accused who could not approach this Court. Therefore, time has come that this Court in order to discourage such types of petitions for a direction of bail in the light of 7 Judges' Bench decision in the case of Amrawati and another Versus State of U.P.(supra) as also approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. (supra) must pass appropriate direction/order in the matter so that precious time of this Court is not wasted in passing of innocuous orders in each and every case. Hence we are of the opinion that law which has been settled for consideration of bail application expeditiously by 7 Judges' Bench decision in the case of Amrawati and another Versus State of U.P.(supra) as also approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. (supra) shall be complied with strictly in letter and spirit by the subordinate courts all over the State irrespective of fact that accused has obtained such orders from this Court or not and decide the same as soon as the same is filed before it in accordance with law as has been laid down in 7 Judges' Bench decision in the case of Amrawati and another Versus State of U.P.(supra) as also approved by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh versus State of U.P. (supra), failing which adverse inference would be drawn and necessary action may be taken against erring officers of Subordinate Courts.
17. The Sessions Judges in the State of Uttar Pradesh are also directed to ensure that aforesaid guidelines which are binding on the courts below are followed in letter and spirit, failing which adverse inference would be drawn against erring officers and this Court would be compelled to take appropriate action against them, if any non-compliance is found in this regard.
18. Moreover, there is no rule of law that a judgement of the Apex Court and this Court, if not strictly complied by the courts below, a petition or an application may be entertained by this Court and order be passed for getting the same complied with.
19. Let a copy of this order be circulated forthwith through Registrar General to all the Session Judges in State of Uttar Pradesh who shall also circulate the same to all the concerned Judicial Officers in that Judgeship for necessary compliance.
Order Date :- 8.7.2016
MN/- (Shamsher Bahadur Singh, J.) (Ramesh Sinha,J.)