Allahabad High Court
Kanhaiya Lal & Others vs Stae Of U.P. & Another on 24 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. - 2016 of 2020 Applicant :- Kanhaiya Lal & Others Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Surendra Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Virendra Kumar Srivastava,J.
In view of COVID-2019 pandemic, the matter is being heard through Video Conferencing.
Heard Shri Surendra Kumar Mishra, learned counsel for the applicants, learned AGA for the State and perused the record.
This application has been filed for quashing the summoning the order dated 05.08.2020 passed by Judicial Magistrate Court No.26, Sultanpur .in Case Crime No.120 of 2020 under Sections 323, 504, 506, 308 IPC in Criminal Case No.2459 of 2020 (State vs. Kanhaiya and others).
Learned counsel for the applicants submits that applicants Kanhaiya Lal, Santosh, Sunney, and Harishchandra are innocent and have been falsely implicated due to political rivalry. Learned Counsel further submits that the Magistrate has illegally summoned the applicants without applying his mind whereas no evidence is available against the applicants on record.
Learned counsel further submits that applicants are ready to surrender before the Magistrate if the concerned Magistrate is directed to decide their bail application in the light of the law laid down by the Hon'ble Apex Court in Lal Kamlendra Pratap Singh vs. State of U.P. and others (2009) 4 SCC 437.
Learned AGA vehemently opposed and submits that in this case, specific allegation has been made against the applicants for causing brutal injury to all three persons including the informant. He further submits that after investigation, considering the injuries and X-ray report, charge sheet has been filed under Sections 323, 504, 506, 308 IPC which is a cognizable offence. Learned AGA further submits that at this stage merit of the case cannot be adjudged and the prayer of the applicants is liable to be rejected.
From perusal of record, it transpires that specific allegation has been made against the applicants for causing injuries hurling abuses and threatening to informant and three other persons and charge sheet has been filed after due investigation as well as taking into consideration the medical examination report and CT scan report. Thus, cognizable offence is made out against the applicants and the prayer for quashing the charge sheet at this stage, is refused.
So far as the prayer of applicants that a direction is required to be given to the Magistrate 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."
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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.
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 the above, this application is disposed of with a direction that if the applicants surrender before the Court concerned within thirty days and file their bail application, their bail application be disposed of as expeditiously as possible in accordance with law.
Order Date :- 24.8.2020 P.s.