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2020 DIGILAW 849 (ALL)

Austin Paul v. State of U. P.

2020-05-08

JASPREET SINGH

body2020
JUDGMENT : JASPREET SINGH, J. 1. In compliance of the order passed by this Court dated 05.05.2020, the learned counsel for the applicant has provided all the necessary documents along with an e-mail and a supplementary affidavit which are taken on record. 2. The Court has heard the learned counsel for the applicant as well as Sri. J.S. Tomar, learned A.G.A. for the State-respondent. 3. The submissions of the learned counsel for the applicant is that the applicant has been falsely implicated. The averments made in the First Information Report do not constitute any offence and it is motivated on account of the prevailing circumstances of COVID-19 pandemic. It has been submitted by learned counsel for the applicant that as per the First Information Report version, on 09.04.2020 at around 04:30 PM both the applicant and one Sunny Masih were riding on a motorcycle which was being driven by Austin Paul, the applicant. 4. At the Polytechnic crossing, the police party which was headed by Sri. Anil Kumar Singh had intercepted the motorcycle and had asked the applicant as why he was moving on the motorcycle during the COVID-19 pandemic lockdown. It was also questioned to the applicant that he had got written the “Civil Court” on the front of his motorcycle. The applicant explained that his father is a working as a Reader in the Civil Court at Lucknow and that the applicant is working as a Nursing Staff in the Medical College on contractual basis and had been issued a duty pass by the Medical College and under these circumstances, the applicant who is exempted from the lockdown is entitled to move. 5. The applicant had also suggested that since the police inspector had got written the word “Police” on his motorcycle, similarly, the applicant's father had also got the word Civil Court written and this rebuke perhaps irked the police officer and under these circumstances the applicant has been implicated and as per the First Information Report, it has been alleged that 6 grams of smack was found in possession of the applicant no. 1 and 5 grams of smack was recovered from Sunny Masih. 6. It is under these circumstances that the First Information Report was lodged and the applicant who brought before the Remand Magistrate. 1 and 5 grams of smack was recovered from Sunny Masih. 6. It is under these circumstances that the First Information Report was lodged and the applicant who brought before the Remand Magistrate. It has been submitted by learned counsel for the applicant that the applicant does not have any criminal history and he has been falsely implicated and under these circumstances the applicant is entitled to be enlarged on bail. 7. The learned A.G.A. had raised an objection and submitted that on the own showing of the applicant, it would indicate that he had made an application for bail before the Remand Magistrate and since the said application remained un-disposed as per their own averments, hence the present bail application is not maintainable. 8. The learned counsel for the applicant while responding to the aforesaid objection and in respect of his submissions has filed a supplementary affidavit which has been taken on record. It has been submitted that since the application for alleged bail was produced before the Remand Magistrate, the same is not going to come in the way of the applicant, inasmuch as, that the application was before the Court which did not possess the jurisdiction, hence it does not make this application before the High Court, as not maintainable. 9. The Court has considered the rival submissions and also perused the material available on record including the supplementary affidavit filed by the learned counsel for the applicant. 10. First and foremost, it would be necessary to ascertain whether the bail application is maintainable in light of the objections raised by the learned A.G.A. 11. The matter of this bail is governed by The Narcotic Drugs and Psychotropic Substances Act, 1985. Section 36 of the Act of 1985 envisages the establishment of Special Courts for trial of offences under the said Act. 12. Section 36 of The Narcotic Drugs and Psychotropic Substances Act, 1985 reads as under:- Section 36 in the Narcotic Drugs and Psychotropic Substances Act, 1985:- “36. Constitution of Special Courts: (1) The Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas as may be specified in the notification. Constitution of Special Courts: (1) The Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the Official Gazette, constitute as many Special Courts as may be necessary for such area or areas as may be specified in the notification. (2) A Special Court shall consist of a single Judge who shall be appointed by the Government with the concurrence of the Chief Justice of the High Court. Explanation - In this sub-section, High Court means the High Court of the State in which the Sessions Judge or the Additional Sessions Judge of a Special Court was working immediately before his appointment as such Judge. (3) A person shall not be qualified for appointment as a Judge of a Special Court unless he is, immediately before such appointment, a Sessions Judge or an Additional Sessions Judge. Section 36 Sub-Section (2) of the said Act provides that the Special Court consisting of a single Judge shall be appointed by the Government with the concurrence of the Chief Justice of the High Court and Sub-Section 3 clearly indicates a person shall not be qualified for appointment as a Judge of the Special Court, unless he is immediately before such appointment as an Additional Sessions Judge.” 13. From the perusal of the aforesaid Section, it is clear that the Special Court envisaged under Section 36 of The Narcotic Drugs and Psychotropic Substances Act, 1985 is to be headed by a Judge whose minimum qualification for appointment ought to be a Sessions Judge or an Additional Sessions Judge. In the aforesaid view of the matter, the application for bail also ought to have been produced before the Special Court headed by the Special Court. 14. From the perusal of the material available on record, it indicates that the application for bail was placed before the Remand Magistrate who needless to say was neither the Sessions Judge nor an Additional Sessions Judge nor was he a Judge of the Special Court as envisaged under Section 36 of the Act of 1985. 15. In view of the aforesaid, the alleged application before the Remand Magistrate was wholly immaterial, inasmuch as, neither the Magistrate was competent to entertain or had the jurisdiction to deal with the said application. 15. In view of the aforesaid, the alleged application before the Remand Magistrate was wholly immaterial, inasmuch as, neither the Magistrate was competent to entertain or had the jurisdiction to deal with the said application. Thus, even if at all, any such application was filed before the Remand Magistrate it was filed before a Court having no jurisdiction, therefore, this Court is of the opinion that merely because the said application remained pending or un-disposed of before a Court of no jurisdiction is not going to affect the rights of the applicant to approach this Court under Section 439 Cr.P.C. 16. Section 439 Cr.P.C. would indicate that it relates to special powers of the High Court as well as of the Sessions Court in respect of bail which reads as under:- “439. Special powers of High Court or Court of Session regarding bail: (1) A High Court or Court of Session may direct: (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section. (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.” 17. At this stage, it will be gainful to refer to certain observations made by the Apex Court in the case of Sundeep Kumar Bafna vs. State of Maharashtra, 2014 (16) SCC 623 which are being reproduced hereinafter for convenient perusal:- “7. Article 21 of the Constitution states that no person shall be deprived of his life or personal liberty except according to procedure established by law. Article 21 of the Constitution states that no person shall be deprived of his life or personal liberty except according to procedure established by law. We are immediately reminded of three sentences from the Constitution Bench decision in P.S.R. Sadhanantham vs. Arunachalam, (1980) 3 SCC 141 : 1980 SCC (Cri) 649, which we appreciate as poetry in prose: (SCC p. 144, Para 3) “3. Article 21, in its sublime brevity, guardians human liberty by insisting on the prescription of procedure established by law, not fiat as sine qua non for deprivation of personal freedom. And those procedures so established must be fair, not fanciful, nor formal nor flimsy, as laid down in Maneka Gandhi vs. Union of India, (1978) 1 SCC 248 . So, it is axiomatic that our constitutional jurisprudence mandates the State not to deprive a person of his personal liberty without adherence to fair procedure laid down by law.” Therefore, it seems to us that constriction or curtailment of personal liberty cannot be justified by a conjectural dialectic. The only restriction allowed as a general principle of law common to all legal systems is the period of 24 hours post arrest on the expiry of which an accused must mandatorily be produced in a court so that his remand or bail can be judicially considered.” xxx xxx xxx xxx xxx “As observed in Gurcharan Singh vs. State (Delhi Admn.) (1978) 1 SCC 118 : 1978 SCC (Cri) 41, there is no provision in the Cr.P.C. dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these courts. The legislature could have easily enunciated, by use of exclusionary or exclusive terminology, that the superior Court of Session and High Court are bereft of this jurisdiction or if they were so empowered under the old Code now stood denuded thereof. Our understanding is in conformity with Gurcharan Singh vs. State (Delhi Admn.) (1978) 1 SCC 118 : 1978 SCC (Cri) 41, as perforce it must. Our understanding is in conformity with Gurcharan Singh vs. State (Delhi Admn.) (1978) 1 SCC 118 : 1978 SCC (Cri) 41, as perforce it must. The scheme of the Cr.P.C. plainly provides that bail will not be extended to a person accused of the commission of a non-bailable offence punishable with death or imprisonment for life, unless it is apparent to such a court that it is incredible or beyond the realm of reasonable doubt that the accused is guilty. The enquiry of the Magistrate placed in this position would be akin to what is envisaged in State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426, that is, the alleged complicity of the accused should, on the factual matrix then presented or prevailing, lead to the overwhelming, incontrovertible and clear conclusion of his innocence. Cr.P.C. severely curtails the powers of the Magistrate while leaving that of the Court of Session and the High Court untouched and unfettered. It appears to us that this is the only logical conclusion that can be arrived at on a conjoint consideration of Sections 437 and 439 CrPC. Obviously, in order to complete the picture so far as concerns the powers and limitations thereto of the Court of Session and the High Court, Section 439 would have to be carefully considered. And when this is done, it will at once be evident that Cr.P.C. has placed an embargo against granting relief to an accused (couched by us in the negative) if he is not in custody.” xxx xxx xxx xxx xxx “Furthermore, while Section 437 severally curtails the power of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher courts have only the procedural requirement of giving notice of the bail application to the Public Prosecutor, which requirement is also ignorable if circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior courts are decidedly and intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conundrum of “committal of cases to the Court of Session” because of a possible hiatus created by Cr.P.C.” xxx xxx xxx xxx xxx “What is to happen to the accused in this interregnum; can his liberty be jeopardized. Indeed, the only complicity that can be contemplated is the conundrum of “committal of cases to the Court of Session” because of a possible hiatus created by Cr.P.C.” xxx xxx xxx xxx xxx “What is to happen to the accused in this interregnum; can his liberty be jeopardized. The only permissible restriction to personal freedom, as a universal legal norm, is the arrest or detention of an accused for a reasonable period of 24 hours. Thereafter, the accused would be entitled to seek before a court his enlargement on bail. In connection with serious offences, Section 167 Cr.P.C. contemplates that an accused may be incarcerated, either in police or judicial custody, for a maximum of 90 days if the charge-sheet has not been filed. An accused can and very often does remain bereft of his personal liberty for as long as three months and the law must enable him to seek enlargement on bail in this period. Since severe restrictions have been placed on the powers of a Magistrate to grant bail, in the case of an offence punishable by death or for imprisonment for life, an accused should be in a position to move the courts meaningfully empowered to grant him succour. It is inevitable that the personal freedom of an individual would be curtailed even before he can invoke the appellate jurisdiction of the Sessions Judge. The Constitution therefore requires that a pragmatic, positive and facilitative interpretation be given to Cr.P.C. especially with regard to the exercise of its original jurisdiction by the Sessions Court. We are unable to locate any provision in Cr.P.C. which prohibits an accused from moving the Court of Session for such a relief except, theoretically, Section 193 which also only prohibits it from taking cognizance of an offence as a court of original jurisdiction. This embargo does not prohibit the Court of Session from adjudicating upon a plea for bail. It appears to us that till the committal of case to the Court of Session, Section 439 can be invoked for the purpose of pleading for bail. If administrative difficulties are encountered, such as, where there are several Additional Sessions Judges, they can be overcome by enabling the accused to move the Sessions Judge, or by further empowering the Additional Sessions Judge hearing other bail applications whether post-committal or as the appellate court, to also entertain bail applications at the pre-committal stage. If administrative difficulties are encountered, such as, where there are several Additional Sessions Judges, they can be overcome by enabling the accused to move the Sessions Judge, or by further empowering the Additional Sessions Judge hearing other bail applications whether post-committal or as the appellate court, to also entertain bail applications at the pre-committal stage. Since the Magistrate is completely barred from granting bail to a person accused even of an offence punishable by death or imprisonment for life, a superior court such as Court of Session, should not be incapacitated from considering a bail application especially keeping in perspective that its powers are comparatively unfettered under Section 439 Cr.P.C.” xxx xxx xxx xxx xxx “There are no restrictions on the High Court to entertain an application for bail provided always the accused is in custody, and this position obtains as soon as the accused actually surrenders himself to the Court.” xxx xxx xxx xxx xxx “The Sessions Court as well as the High Court, both of which exercise concurrent powers under Section 439, would then have to venture to the merits of the matter so as to decide whether the applicant-appellant had shown sufficient reason or grounds for being enlarged on bail.” 18. Thus, from the proposition as noticed above, it is clear that both the High Court and the Sessions Court exercise concurrent powers under Section 439 Cr.P.C. In the present case it is not disputed that the applicant is in custody as envisaged and explained in the case of Sundeep Kumar Bafna (supra) hence there is no impediment for this Court to consider the bail application and the bail application filed before the Remand Magistrate was before a Court having no jurisdiction to entertain it, thus it will not create an embargo on this Court to entertain and consider the bail application on its merits and in any case an application filed before the Remand Magistrate is liable to be ignored and it has been rendered otiose. 19. In the aforesaid circumstances, this Court is of the opinion that this Court can consider the bail application despite an application having been moved before a Court lacking jurisdiction. In view of the aforesaid, the objection raised by the learned A.G.A. is over ruled. 20. 19. In the aforesaid circumstances, this Court is of the opinion that this Court can consider the bail application despite an application having been moved before a Court lacking jurisdiction. In view of the aforesaid, the objection raised by the learned A.G.A. is over ruled. 20. The Court has considered the bail application on its own merits which has been opposed by the learned A.G.A. however, looking into the facts and circumstances, the material available on record as well as the fact that the accusation against the applicants are yet to be tested in trial and only if the evidence and material produced before the Court is proved beyond reasonable doubt, can the applicant be convicted. 21. In the aforesaid facts and circumstances and taking a holistic view, this Court without expressing any opinion on the merits of the case is of the view that the applicant is entitled to be released on bail. 22. The Registry of this Court has reported certain defects and in this regard the High Court has laid down a guideline vide circular dated 14.04.2020. The relevant portion thereof is being reproduced hereinafter:- “2. However, during the lock down period, the requirement of an affidavit/e-affidavit/scanned Notary Affidavit shall not be mandatory in the case of BAIL APPLICATIONS and ANTICIPATORY BAIL APPLICATIONS. In lieu thereof, Counsel shall have to submit, in the e-filed petitions, the Adhar Card Number, full details of the card holder like name, parentage, age and address, as also the mobile number linked to the Adhar Card of the person wanting to act as the deponent in the matter along with a declaration of that applicant/petitioner/pairokar affirming the correctness of the disclosures and averments made in the application/petition. In case of civil matters, a prayer for dispensing with the requirement of filing an affidavit may be made along with the urgency application which shall also be considered simultaneous with the issue of urgency. 3. This waiver or relaxation is subject to a proper affidavit being filed, in hard copy, within a period of 15 days from the date the lock down is lifted. No further time shall be granted for the purpose. In case a proper affidavit is not filed as specified above, the said case shall stand dismissed automatically and any order passed therein, shall stand recalled, without any reference to the Court. No further time shall be granted for the purpose. In case a proper affidavit is not filed as specified above, the said case shall stand dismissed automatically and any order passed therein, shall stand recalled, without any reference to the Court. A communication, in this regard shall be sent by the Registry to the Courts below/authorities concerned, forthwith for consequential action.” 23. Hence this order passed by the Court shall be subject to the compliance of the conditions as prescribed in the circular dated 14.04.2020. Let the applicant Austin Paul involved in Case Crime No. 207 of 2020, under Sections 8/21 of The Narcotic Drugs and Psychotropic Substances Act, 1985, Police Station Vibhut Khand, District Lucknow be released on bail on his furnishing a personal bond to the satisfaction of the Jail Authorities where said accused is imprisoned, provided the accused applicant/s shall also undertake to furnish two reliable sureties required by the court concerned, within a period of 6 weeks from the date of his/her actual release. 24. At the time of executing required sureties the following conditions shall be imposed in the interest of justice: (i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. (v) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. (vi) The computer generated copy of such order shall be self attested by the counsel or the party concerned. (vii) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. 25. And in case any application be filed before the Remand Magistrate, the same should be ignored and has been rendered ocious.