# A.C.C. 305 Kalimuddin Khan v. State of U.P. and others. The - **Citation:** (2006) 3 ILRA 1022 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2006-04-04 - **Case number:** Criminal Misc. Application No.3485 of 2006 - **Bench:** Vinod Prasad - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/a-c-c-305-kalimuddin-khan-v-state-of-u-p-and-others-the-40716 - **Pages:** 2 ## Headnote Constitution of India, Art. 226-Stay of arrest-during pendency of investigation writ court can exercise power to grant stay in rarest of rare case-Full Bench held-observation made in Satya Pal Singh Vs. State of U.P.-good law-ratio of Jogender Singh's case-not applicable in cases for quashing the criminal proceeding. Held: Para 32, 34, 85 Para 117 as per Hon'ble Amar Saran, J. Thus, the arrest is permissible only in a case where the circumstances of the said case so require and there is a justification for making the arrest otherwise not. It is evident from the statutory provisions itself that arrest is to be made only and only if it is found to be necessary and there is a justification for making the arrest for the purpose of further investigation. What to talk of arrest even case may not be investigated if there is no sufficient ground for the same. Therefore, it cannot be held that arrest is to be made in every case without discrimination rather the mandate issued by the Hon'ble Apex Court in Joginder Kumar's case is to be followed but as stated above, the said case deals with the power of the police to make arrest while the Full Bench in Satyapal's case deals with the power of the Court to interfere with investigation. In view of the above, the conclusions drawn by us, hereinabove, we answer the first part of question No. 1 holding that Satyapal's case lays down the correct law and we approve, affirm and reiterate the same. However, the second part of the 1st question does not require to be answered, as the ratio of Joginder Kumar's case has no application in a case for quashing criminal proceedings. Constitution of India, Art. 226-Power of writ Court-Quashing of Criminal proceeding-on the ground of malafidesufficient evidence there-can not be interferred even if malafide established. Held: Para 42, 75 & 105 ## Text 1022 INDIAN LAW REPORTS ALLAHABAD SERIES [2006 purposes of effective adjudication, a copy of the writ petition along with its annexure can also be treated as part and parcel of the application. 5. The writ petition stands disposed of. However, no order is passed as to costs. Petition Disposed of. --------- ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 04.04.2006 BEFORE THE HON'BLE VINOD PRASAD, J. Criminal Misc. Application No.3485 of 2006 Bhupendra Singh ...Applicant Versus State of U.P. & another...Opposite Parties Counsel for the Applicant: Sri Sanjeev Kumar Pandey Counsel for the Opposite Parties: A.G.A. Code of Criminal Procedure-S-482Quashing of Charge Sheet-offence under section 149,148,149,302,307 I.P.C.-on the ground other co-accused acquittedon the principle stars decises upon 2005 (53) ACC-305-applicant not appeared before the trial court as yet if the protection given such person having no respect to the order passed by court of law-No relief can be granted-except to approach before the same Trial courtwho will pass reasoned order. Held: Para 3 & 4 It is not the law that the principal of stare decises should be applied also to the accused who had been avoiding the process of law. It will be misused of the power of the court if such an order is passed in respect of those persons who have got no respect for the orders of the court. In this view of the matter, I do not find any merit in this application. This application is rejected. The applicant is free to appear in the court and raise his grievances in view of the law laid down by this Court and who will decide it by passing a reasoned order thereon. Case law discussed: 2005 (53) ACC-305 (Delivered by Hon'ble Vinod Prasad, J.) 1. Heard learned counsel for the applicant and the learned A.G.A. 2. The applicant has challenged the proceeding of a charge sheet under Sections 147,148,149,302,307 I.P.C., case crime no.124 of 2005, police station Kotwali City, district Etah, pending in the court of C.J.M., Etah. 3. The learned counsel for the applicant is contended that the other coaccused persons have already been acquitted. He submitted that since the coaccused persons have been acquitted, therefore, he should not be tried and he based his submission on the principal of stare decises and also relied upon the judgment of this Court reporting in 2005 (53) A.C.C. 305 Kalimuddin Khan Vs. State of U.P. and others. The applicant has not appeared in the trial court as yet. He has not made any application before the trial court for the purposes of discharge or acquittal in accordance with the law laid down by this Court mentioned above. It will be a travesty of justice to close the case and acquit the accused who has not appear before the court at all. It is not the law that the 3 All] Ram Deo and others V. State of U.P. and another 1023 principal of stare decises should be applied also to the accused who had been avoiding the process of law. It will be misused of the power of the court if such an order is passed in respect of those persons who have got no respect for the orders of the court. 4. In this view of the matter, I do not find any merit in this application. This application is rejected. The applicant is free to appear in the court and raise his grievances in view of the law laid down by this Court and who will decide it by passing a reasoned order thereon. --------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 05.07.2006 BEFORE THE HON'BLE DR.B.S. CHAUHAN, J. THE HON'BLE SUSHIL HARKAULI, J. THE HON'BLE AMAR SARAN, J. Criminal Misc. Writ Petition No.4861 of 2000 Ajit Singh @ Muraha ...Petitioner Versus State of U.P. and others ...Respondents Counsel for the Petitioner: Sri S.K. Shukla Sri S.P. Shukla Sri R.K. Pandey Sri Prem Prakash Sri Ramendra Asthana Counsel for the Respondents: Sri V.S. Mishra Constitution of India, Art. 226-Stay of arrest-during pendency of investigation writ court can exercise power to grant stay in rarest of rare case-Full Bench held-observation made in Satya Pal Singh Vs. State of U.P.-good law-ratio of Jogender Singh's case-not applicable in cases for quashing the criminal proceeding. Held: Para 32, 34, 85 Para 117 as per Hon'ble Amar Saran, J. Thus, the arrest is permissible only in a case where the circumstances of the said case so require and there is a justification for making the arrest otherwise not. It is evident from the statutory provisions itself that arrest is to be made only and only if it is found to be necessary and there is a justification for making the arrest for the purpose of further investigation. What to talk of arrest even case may not be investigated if there is no sufficient ground for the same. Therefore, it cannot be held that arrest is to be made in every case without discrimination rather the mandate issued by the Hon'ble Apex Court in Joginder Kumar's case is to be followed but as stated above, the said case deals with the power of the police to make arrest while the Full Bench in Satyapal's case deals with the power of the Court to interfere with investigation. In view of the above, the conclusions drawn by us, hereinabove, we answer the first part of question No. 1 holding that Satyapal's case lays down the correct law and we approve, affirm and reiterate the same. However, the second part of the 1st question does not require to be answered, as the ratio of Joginder Kumar's case has no application in a case for quashing criminal proceedings. Constitution of India, Art. 226-Power of writ Court-Quashing of Criminal proceeding-on the ground of malafidesufficient evidence there-can not be interferred even if malafide established. Held: Para 42, 75 & 105