Allahabad High Court
Munawwar And 9 Ors vs State Of U.P. And Another on 3 July, 2014
HIGH COURT OF JUDICATURE AT ALLAHABAD ?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 faraz