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2018 DIGILAW 1302 (ALL)

PAWAN @ JAYANT KUMAR v. STATE OF U. P.

2018-05-23

RAJUL BHARGAVA

body2018
JUDGMENT : Hon'ble Rajul Bhargava,J. Heard Sri D.N. Mishra, learned counsel for the applicant, Sri Shaqib Meezan learned A.G.A. along with Sri Abhinava Tripathi, Advocate, appearing for the State. Amongst the three parameters prescribed by statute where this Court may exercise powers under Section 482, one is "to give effect to any order passed under this Code". The grievance of learned counsel for the applicant is that by order dated 09.03.2018, he was granted time of 30 days to surrender in relation to SST No.8 of 2018 (State Vs. Pawan) arising out of Case Crime No.298 of 2016, under Sections 323, 504, 506 I.P.C. and 3(1)(10) of SC/ST Act, Police Station-Derapur, District Kanpur Dehat and it was provided that for a period of 30 days from the date of order or till the disposal of the application for bail, whichever is earlier, no coercive action shall be taken against the applicant. This order was passed by this Court in an Application U/S 482 No.7572 of 2018. The grievance of the applicant is that the learned Special Judge in order to circumvent the order passed by this Court granting indulgence to surrender within a stipulated period of time and protecting the applicant by ordering that no coercive action shall be taken within that period of grace has fixed a time schedule for surrender at 1.00 P.M., whereas for consideration of bail application at 12.30 P.M. As a result, a bail application by the applicant cannot be heard on that day as directed by this Court vide order dated 09.03.2018 in Application (Under Section 482) No.7572 of 2018, which would be rendered infructuous as the applicant would be sent to jail and his bail application would be taken up after 10 to 15 days. Before dealing with the submission raised by counsel for the applicant it would be profitable to quote the observation of the Apex Court's judgement in the case of Lal Kamlendra Pratap Singh vs. State of U.P. And others, 2009 (3) ADJ 322 (SC). In the said case the judgement of seven Judges' Bench rendered in the case of Amrawati and another vs. State of U.P. reported in 2004 (57) ALR 290 was approved. In the said case the judgement of seven Judges' Bench rendered in the case of Amrawati and another vs. State of U.P. reported in 2004 (57) ALR 290 was approved. It is held as under:- "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 the case of Amaravati Vs. State of U.P. 2005 Crl.L.J 755 in which a Seven Judge Full Bench of the 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 F.I.R. of a cognizable offence is lodged. The Full Bench placed reliance on the decision of this Court in Joginder Kumar Vs. State of U.P., 1994 Cr.L.J.1981. 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)." Therefore, from the observation made by the Apex Court in Lal Kamlendra (supra) it is held that in appropriate cases an 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. In view of the observation made by the Full Bench of this Court as approved by the Hon'ble Apex Court in Lal Kamlendra case, I find sufficient force in the submission made by counsel for the applicant that by fixing a timing for surrender of the accused at 1.00 pm whereas bail shall be considered at 12.30 pm by necessary implication would mean that on the day of surrender, bail application of any accused cannot be heard and disposed of on merit or there is no occasion to release the accused on interim bail in appropriate cases. It is further pointed out that apart from those cases in which some of the accused approached this Court and obtained direction that in the event they surrender, their bail be considered in terms of the law laid down in the case of Amrawati (supra) by the seven Judge' Bench as also approved in Lal Kamlendra. However, the said judgements are not to be applied only where the accused produces or places an order of this Court with such direction, whereas this Court has passed general direction in the judgement rendered in Brahm Singh and others vs. State of U.P. in Crl. Misc. Writ Petition no. 15609 of 2016 in which the Division Bench of this court had passed following direction:- "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. 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." Even in view of the direction of this Court in the aforesaid judgement and pursuant thereof Registrar General has also circulated the aforesaid directions to all Session Judges, State of Uttar Pradesh and if such type of practice as is being adopted by the Special Judge, SC/ST Act, Kanpur Dehat in the present case is approved, then the very purpose of ratio of the judgements cited above would be rendered nugatory. This Court too realise that the High Court under normal circumstance would be reluctant in issuing direction with regard to the manner in which the court proceedings are to be conducted other than prescribed under any statute, however, if any such directions have been issued by the Special Judge that the time schedule of the surrender of the accused is 1.00 pm whereas bail shall be considered at 12.30 pm would necessarily mean that the bail application of any accused cannot be heard on the day of his arrest/ surrender and as a necessary corollary he has to be sent to jail and in such circumstance direction of the Apex Court that in appropriate cases accused should be enlarged on interim bail till the same is disposed off so in cases of no evidence or in appropriate cases the accused whose personal liberty is jeopardized should not be ordinarily be sent to jail unless the court takes a view that in the facts of the case, nature and gravity of offence the court is not inclined to release the applicant on interim bail would have of no relevance. In view of the aforesaid, I deem it fit to direct Session Judge, Kanpur Dehat to pass appropriate administrative order in this behalf so that the judgement cited above of the Apex Court and this Court are not rendered nugatory. In view of the aforesaid, I deem it fit to direct Session Judge, Kanpur Dehat to pass appropriate administrative order in this behalf so that the judgement cited above of the Apex Court and this Court are not rendered nugatory. However, since life of the order dated 9.3.2018 has expired, I deem it fit and appropriate to extend 15 days further time to the applicant to comply with the order dated 9.3.2018. With the aforesaid directions/ observations, the application stands disposed of.