# Abbasi v. State of U.P. And another

- **Citation:** (2010) 1 ILRA 127
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-02-01
- **Case number:** Criminal Appeal No.4458 of 2003
- **Bench:** Rakesh Tewari, Rajesh Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abbasi-v-state-of-u-p-and-another-41498
- **Pages:** 7

## Headnote

A.G.A.,
Sri Manish Tiwari
Sri Shivajee Srivastava
Sri A.B. Maurya
Sri Kayoom Ahmad
Sri Amir Khan

Code of Criminal Procedure Section 374,
389 readwith High Court Rules 1952Chapter XVIII Rule 8 and 18-Criminal
Appeal-separate
Bail
Application
not
filed-held can not be considered-practice
can not prevail over statutory provisionscriminal appeal heard u/s section 374
where as the bail application can be
considered only under section 389-hence
separate bail application supported with
affidavit
must
be
there-accordingly
direction issued to Registry.

Held: Para 14

In view of the above entire discussions,
we are of this opinion that a separate
bail application has to be filed along with
the appeal and that bail application shall
also be supported with an affidavit
setting out in the form of paragraphs the
material facts and grounds upon which
the applicant relies.

## Text

1 All] Jeesan and others V. State of U.P.
127
the following observations in para 12 of
the report at page 784:-

"There is no doubt that the object of
introducing Chapter XX-A containing
section 498-A in the Indian Penal Code
was to prevent the torture to a woman by
her husband or by relatives of her
husband. Section 498-A was added with
a view to punishing a husband and his
relatives who harass or torture the wife
to coerce her or her relatives to satisfy
unlawful demands of dowry. The hypertechnical
view
would
be
counter
productive
and
would
act
against
interests of women and against the object
for which this provision was added.
There is every likelihood that nonexercise of inherent power to quash the
proceedings to meet the ends of justice
would prevent women from settling
earlier. That is not the object of Chapter
XXA of Indian Penal Code."

7. It is also held by the Hon'ble
Apex Court in para 13 of the report of B.
S. Joshi Vs. State of U.P (supra) that the
High Court in exercise of its inherent
powers can quash criminal proceedings or
FIR or complaint and section 320 of the
Code does not limit or affect the powers
under section 482 of the Code.

8. In the case of Ausaf Ahmad
Abbasi vs. State of U.P. And another
2006 (30 JIC 135 (Alld.)), the proceeding
of criminal case under section 498A, 323,
504, 506 IPC and 3/4 D.P. Act was
quashed on the basis of the compromise
entered
into
between
the
parties.
Reference in this regard may be made to
the case of Ruchi Agarwal vs. Amit
Kumar Agrawal & others 2005 (51) ACC
217 also, in which the Hon'ble Apex
Court quashed the proceedings of the
criminal case under section 498A, 323,
506 IPC and 3/4 D.P. Act, due to the
compromise entered into between the
parties in the proceeding under section
125 Cr.P.C.

9. In view of the discussion made
herein-above, I am of the considered
opinion that it would be an abuse of the
process of the Court, if the criminal
proceeding of the aforesaid criminal case
is allowed to continue. Therefore, to do
the complete justice, the proceedings of
the said criminal case should be quashed
by this Court in its inherent jurisdiction
under section 482 Cr.P.C.

10. Consequently, the application
under section 482 Cr.P.C. is allowed. The
proceeding of criminal case no. 2603 of
2009 (State Vs. Amit Kumar and others)
under section 498A, 323, 504 I.P.C. and
3/4 D.P. Act arising out of crime no. 242
of 2008, P.S. Mahila Thana, Meerut
pending in the Court of Chief Judicial
Magistrate, Meerut is hereby quashed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.02.2010

BEFORE
THE HON'BLE RAKESH TEWARI, J.
THE HON'BLE RAJESH CHANDRA, J.

Criminal Appeal No.4458 of 2003

Jeesan and others

...Appellants
Versus
State of U.P.

 ...Opposite Party

Counsel for the Appellants:
Sri P.N. Misra
Sri Apul Misra
Sri R.P. Yadav
Sri R.P.S. Chauhan
Sri Raghubans Sahai
128 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Sri Amrish Sahai
Sri Dilip Kumar
Sri Rajeev Gupta

Counsel for the Opposite Party:
A.G.A.,
Sri Manish Tiwari
Sri Shivajee Srivastava
Sri A.B. Maurya
Sri Kayoom Ahmad
Sri Amir Khan

Code of Criminal Procedure Section 374,
389 readwith High Court Rules 1952Chapter XVIII Rule 8 and 18-Criminal
Appeal-separate
Bail
Application
not
filed-held can not be considered-practice
can not prevail over statutory provisionscriminal appeal heard u/s section 374
where as the bail application can be
considered only under section 389-hence
separate bail application supported with
affidavit
must
be
there-accordingly
direction issued to Registry.

Held: Para 14

In view of the above entire discussions,
we are of this opinion that a separate
bail application has to be filed along with
the appeal and that bail application shall
also be supported with an affidavit
setting out in the form of paragraphs the
material facts and grounds upon which
the applicant relies.

(Delivered by Hon'ble Rakesh Tewari, J.)

1. The appellants have filed this
appeal against the judgment and order
dated 10.9.2003 passed in S.T.No.486 of
2000, State V. Jeesan & Others convicting
the appellants for the offences under
Sections 147,148,307, read with Section
149 IPC and for the offence under Section
302, read with Section 149 IPC with
imprisonment of one year, one and a half
years, 7 years and life imprisonment
respectively. The appellants have further
been sentenced with a fine of Rs.3,000/-
each for the offence under Section
307/149 IPC and a fine of Rs.6,000/- each
for the offence under Section 302/149 IPC
with default stipulation. The appellant
Jeesan and Israr have further been
convicted
and
sentenced
with
imprisonment of two years for the
offences under Section 25 Arms Act.

2. In the grounds of appeal, a prayer
has been made that the appellants may be
released on bail and the realisation of fine
may be stayed.

3. A preliminary objection has been
raised by the learned AGA that the prayer
made in the appeal for grant of bail cannot
be treated as a separate application for
bail which is to be granted on different
considerations under Section 389 Cr.P.C.
He submits that an application for bail
filed along with the memorandum of
appeal is to be treated as first bail
application and any subsequent bail
application has to be numbered as second,
third and fourth etc which would be in
consonance with clause (4) of Rule 18 of
Chapter XVIII of the High Court Rules.

4. We have heard the learned AGA
and the learned counsel for the appellants
and have perused the record and the
relevant rules etc placed before us. We
have also requested the Registry to place
all the relevant record with regard to this
controversy referred to later in this
judgment.
The
question
arises
for
consideration is whether a separate
application for bail is required to be filed
and marked as first bail application along
with the petition of appeal in terms of
Rules 8 (2) (4), 18(1), 18(3) (a), 18(3) (b)
and 18 (4) of Chapter XVIII of the
Allahabad High Court Rules. In this
1 All] Jeesan and others V. State of U.P.
129
connection Rules 8 and 18 of Chapter
XVIII of the Allahabad High Court Rules
may be referred, which are as under:

"8. Cases to be registered and
numbered-----(1) After an appeal or
revision has been admitted it shall be
registered and numbered.

(2) The following application shall be
registered
and
numbered
after
presentation as Criminal Miscellaneous
cases, namely-
(a) application for bail;
(b) application for cancellation for bail;
(c) application for transfer of a case;
(d) application for withdrawal of a case
from a subordinate Court;
(e) [***];
(f) application under Section 96 of the
Code of Criminal Procedure, 1973;
(g) application for stay of operation of
order of, or proceedings in, lower court.
Such application must be accompanied by
the certified copy of the order assailed,
including all other documents, if any, on
the basis of which a particular order has
been challenged;
(h) application for the issue of a
direction, order or writ under Article 226
of the Constitution in a criminal matter;
(i) [application under sub-section (1) or
sub-section (2) of Section 340 of the Code
of Criminal Procedure, 1973];
(j) application
for
the
taking
of
proceedings in contempt of court;[ and]
(k) application under Section 378(4) of
the Code of Criminal Procedure, 1973];
Provided that an application for transfer
of cases, shall be accompanied by a copy
of the order passed by the Session Judge,
if any];
(3) Cases in which the Court takes
proceedings under Section 340(1) or
340(2)
of
the
Code
of
Criminal
Procedure, 1973 or issue notice for
contempts of Court otherwise than on an
application and references under Section
318 of the Code of Criminal Procedure,
1973 shall also be registered and
numbered as Criminal Miscellaneous
Cases.
(4) The application aforesaid shall
set out the prayer stating clearly the exact
nature of the relief sought supported by an
affidavit setting out in the form of
paragraphs the material facts and grounds
upon which the applicant relies.
18. Application for bail.-- [(1) No
application for bail shall be entertained
unless accompanied by a copy of
judgment or order appealed against or
sought to be revised and a copy of order
passed by the Sessions Judge on the bail
application for the applicant and unless
the accused has surrendered except where
he has been released on bail after
conviction under Section 389(3) of the
Code of Criminal Procedure, 1973.
Explanation:- The copy of the order
refusing bail passed by the Sessions Judge
shall either be a certified copy or the copy
furnished by the Sessions Judge free of
charge to the accused.]
(2) Every application for bail in a case,
which is under investigation or which is
pending in a Lower Court shall state
whether application for bail had or had
not been previously made before the
Magistrate
and
the
Sessions
Judge
concerned
and
the
result
of
such
applications, if any.
(3) Save in exceptional circumstances:
(a) No order granting bail shall be made
on an application unless notice thereof has
been given to the Government Advocate
and not less than days have elapsed
between the giving of such notice and the
hearing of such application.
130 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
(b) If the application for bail has not
been moved within two days after the
expiry of the aforesaid period of ten days,
the applicant or his Counsel shall give
two
days
previous
notice
to
the
Government Advocate as to the exact date
on which such application is intended to
the moved.
(c) Where the prayer of bail is contained
in a petition of appeal or application for
revision, notice thereof may be given to
the Government Advocate the same day
prior to the hearing of such petition or
application and the fact of such previous
notice having been given, shall be
endorsed on such petition or application.
Along with such notice a certified copy or
one attested to be true by the Counsel, of
the Judgment appealed from or sought to
be revised shall also be given to the
Government Advocate.
(4) Every application for bail shall show
prominently in the first page thereof the
crime number, the police station by
which, and the section or sections and the
Act or Rules under which the applicant is
being prosecuted or has been convicted
and whether such application in the first,
second
or
any
such
subsequent
application moved by him before this
Court, and shall be accompanied by a
copy of the first information report. It
shall also state the following particulars,
namely:
(a) The date of the alleged occurrence;
(b) The date of applicants arrest;
[ The Bench Secretary shall while
entertaining
a
bail
application
for
presentation to the Court Check every
page thereof and shall affix a rubber
stamp containing his initials on every
page of the bail application and all the
annexures thereto before putting it up
before the Court in token of his having
checked, every page of the application
and he shall, thereafter, make the
following
endorsement
on
the
bail
application:
" Moved before Hon'ble ...................J
on.......................(date)."
Similarly, the officials whose duty it is to
received the bail application from the
court after orders, shall affix a rubber
stamp containing his initials on the first
page of the bail application in token of his
having checked that all the pages of the
bail application bear the rubber stamp for
the Bench Secretary.
The rubber stamps containing the initials
of the Bench Secretary and the official or
officials authorised to receive the fresh
bail application from the Court shall be
supplied to the Bench Secretaries and the
officials by the Registrar of the Court.
The application shall not be returned to
the applicant or his counsel after the
above endorsement has been made].
(5) Every page of the application and
every page of the annexures thereto shall
bear the full signature of the applicant or
his counsel.
(6) In every such application shall be
stated the full particulars of the previous
applicant or applications, if any, moved in
this Court by same application in respect
of the same crime and the date or dates on
which such previous application or
applications had been rejected."

5. A perusal of clause (1) and (2) (a)
of Rule 8 makes it clear that after the
appeal is admitted it shall be registered
and numbered and the application for bail
shall be registered and numbered after
presentation as Criminal Miscellaneous
Case. Thus sub-clause (2) (a) requires the
filing of an application for bail. Subclause (4) of Rule 8 lays down that:-
1 All] Jeesan and others V. State of U.P.
131
"(4) The application aforesaid shall
set out the prayer stating clearly the exact
nature of the relief sought supported by
an affidavit setting out in the form of
paragraphs the material facts and grounds
upon which the applicant relies.

Thus under Rule 8 not only an application
for bail is required but it has to be
supported by an affidavit setting out in the
form of paragraphs the material facts and
grounds upon which the applicant relies.

6. Opening sentence of Rule 18 is "
No
application
for
bail
shall
be
entertained unless accompanied by a copy
of judgment or order appealed against of
sought to be revised ......................"

7. The Section presupposes that
there shall be an application for bail
which will be entertained only when it is
accompanied by a copy of judgment. Rule
18 (3) (a) provides " No order granting
bail
shall
be
made
on
an
application..........." Rule 18 (3) (b)
provides " if the application for bail has
not been moved......" These wordings
again confirm that there should be an
application for bail. The above Rules then
provide as to how the notice of the bail
application
shall
be
given
to
the
Government Advocate. Again sub-clause
(4) of Rule 18 says that every application
for bail shall show prominently in the first
page as to whether such application is
first, second or any such subsequent
application moved by the appellant before
this Court ( i.e. the High Court.)

8. Learned counsel for the appellants
would submit that normally in this High
Court prayer for bail in the appeal is
considered as the first bail application
and, therefore, in case where a prayer for
bail in appeal is rejected, second or third
bail application is filed without there
being a separate application along with
appeal as first application for bail. This
argument of the learned Advocate for the
appellants is wholly fallacious. We have
been informed at the Bar that this practice
has developed lately. An instance in this
regard is of Sri P.C.Chaturvedi, Advocate
who used to file bail applications along
with the appeal. It appears that this
practice of filing separate bail application
has withered with the passage of time and
now survives only in the memory lanes of
the past era. The fact in reality is that the
first bail application now a days is not
filed separately along with the appeal in
which such a prayer is made. Hence bail
application can neither be numbered nor
can be marked as first or second bail
containing the distinct and specific
grounds for bail. The general grounds
mostly taken in the appeal cannot be
taken aid of in place of specific grounds
required to be taken by the appellant for
consideration of his prayer in the
application for grant of bail.

9. We would like to take notice of
law at this juncture that the appeal is filed
under Section 374 of the Code of
Criminal Procedure whereas the bail
application is considered under Section
389 of the Code. This arrangement of
Sections further suggests that a separate
bail application should be moved seeking
indulgence of the court under Section 389
of the Code of Criminal Procedure for
grant of bail. This would also be in
conformity with Rules 8 and 18 quoted
above. In any case provisions of the Act
would prevail over the Rules if there is
any
regugnancy
between
the
two.
However, there does not appear to be any
such situation here.
132 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
10. If the prayer for bail is contained
in the grounds of appeal and no bail
application is filed with it, then there will
be no first application and this will violate
the provisions of Rules 8,18(1) and 18(4)
of the Allahabad High Court Rules, 1952
when second bail application is filed by
the counsel on rejection of the prayer for
bail in memo of appeal.

11. The Registry was requested to
provide all papers/resolutions/committee
reports etc. on the subject as to whether
this matter is pending consideration on
administrative
side.
We
have
been
informed that a committee consisting of
Hon'ble Justice Sunil Ambwani, Hon'ble
Justice Ashok Bhushan and Hon'ble
Justice Dilip Gupta is considering the
feasibility of reporting of appeals and
applications under Section 482 Cr.P.C.
but the present matter is not before their
Lordships for consideration. However, the
Joint Registrar (I) has reported that Rule 8
of Chapter XVIII contemplates a separate
application for bail but at the same time
he has also reported that in sub-clause ( c)
of clause (3) of Rule 18, it has been
mentioned that " Where the prayer for bail
is contained in a petition of appeal",
which indicates that a prayer for bail can
be made in the petition of appeal itself.

We have given our considered
thought to this situation.

12. Sub-clause ( c) of clause (3) of
Rule 18 referred to by the Registry does
not deal with the question as to whether a
separate application for bail has to be
filed along with the appeal or not. Subclause (c) of clause 3 of rule 18 runs as
under:-

"(c) Where the prayer of bail is
contained in a petition of appeal or
application for revision, notice thereof
may be given to the Government
Advocate the same day prior to the
hearing of such petition or application and
the fact of such previous notice having
been given, shall be endorsed on such
petition or application. Along with such
notice a certified copy or one attested to
be true by the Counsel, of the Judgment
appealed from or sought to be revised
shall also be given to the Government
Advocate."

13. It is thus clear that sub clause (c)
deals with the requirement of giving
notice to the Government Advocate etc.
The availability of the words " Where the
prayer for bail is contained in a petition of
appeal" cannot and does not obliterate the
provisions of Rule 8, 18(1) and 18(4) of
Chapter XVIII, which specifically require
that there shall be an application for bail.
There
is
no
conflict
between
the
provisions of sub clauses (3)(a), 3(b) of
Rule 18 on the one hand and Rules 8,
18(1) and 18(4) of Chapter XVIII on the
other. A prayer for bail may be mentioned
in the petition of appeal if the appellant so
desires but that does not mean that the
appellant is not obliged to move a bail
application as required under Rules
8,18(1) and 18(4) of Chapter XVIII. The
Report of the Joint Registrar ( I) is
misconceived. If the wordings in sub
clause ( c) of clause (3) of Rule 18 are
interpreted to mean that a prayer for bail
may be contained in a petition of appeal
and no separate application is required
then Rule 8 (2) (a) and Rules 18 (1), 18
(3) (a), 18 (3) (b) and 18(4) shall become
redundant. Hence the interpretation of
Rule 18(3) (c) vis a vis Rule 8 (2) (a),
Rule 18(1), 18(3) (a), 18(3) (b) and 18(4)
1 All] Suresh Giri and others V. Board of Revenue and others
133
must be harmonious so that one is not
rendered redundant. The harmonious
construction can therefore be that a prayer
for bail may be contained in a petition of
appeal together with a prayer made in a
separate bail application. In the spirit of
Rule 18(1), 18 (3) (a) and 18 (3) (b), read
with Rule 18(4), it is clear that an
application for bail has to be moved and
the same will show as to whether it is the
first or second or subsequent bail
application and there cannot be any
second or subsequent bail application
without
there
being
a
first
bail
application.

14. In view of the above entire
discussions, we are of this opinion that a
separate bail application has to be filed
along with the appeal and that bail
application shall also be supported with
an affidavit setting out in the form of
paragraphs the material facts and grounds
upon which the applicant relies.

15. In view of the above, the
appellants are directed to move a separate
bail application within two weeks if they
so desire.

List after two weeks.

16. Registry of the High Court shall
also publish in the cause list dated
8.2.2010 for information to all concerned
that separate bail application would be
required along with the petition of
criminal appeal even though prayer for
bail is made in the grounds of appeal
concerned.
---------
APPELLATE JURISDICTIION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2010

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 4570 of 2010

Suresh Giri and others ...Petitioners
Versus
Board of Revenue & others. ..Respondents

Counsel for the Petitioner:
Sri S.N. Panday
Sri A.K. Panday

Counsel for the Respondent:
Sri D.D. Chauhan
C.S.C.

U.P. Zamindari and Land Reform Act.
Section 158 (b)-suo motu action taken
by collector without notice, opportunity
to petitioner held- even exercise power-
Notice is must.

Held: Para 20 & 21

In view of above, it is held that the
period of limitation prescribed under
Section 198(6) of the Act for issuance of
notice
before
cancellation
of
the
allotment of the land/lease is applicable
even to suo motu proceedings. However,
the Collector is not forbidden to initiate
proceedings for cancellation even after
the
expiry
of
limitation
prescribed,
provided he has reason to believe that
the allotment is likely to vitiate on
account of fraud but in exercise of such
power
has
to
act
with
great
circumspection as observed above and
not in a routine or a causal manner.

In
the
facts
of
present
case
and
circumstances that the Collector has
expressed satisfaction with regard to
fraud, I am not inclined to interfere with
the orders passed and the writ petition is
disposed of accordingly with liberty to