# Braj Lal v. State of U.P. & Ors. Opp. Parties - **Citation:** (2019) 2 ILRA 629 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2019-07-02 - **Case number:** Application u/s 482 No. 42378 of 2018 - **Bench:** Rajiv Joshi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/braj-lal-v-state-of-u-p-ors-opp-parties-44714 - **Pages:** 3 ## Headnote A. Cr.P.C., 1973 - Section 482 - For Cancellation of bail granted to opposite party no. 2 & 3 -Maintainability of Criminal Application under section 482 Cr.P.C. - when specific provision present under section 439(2) of the Code of Criminal Procedure for cancellation of bail - Present petition under section 482, Cr.P.C. for that very purpose is not maintainable. The High Court while exercising jurisdiction under section 482,C.P.C. is empowered enough to make orders in the nature as contended by the applicant but it is equally 630 INDIAN LAW REPORTS ALLAHABAD SERIES true and well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and not where specific remedy is provided by the statute. Since Section 439 (2) occurring in Chapter XXXIII of the Code of Criminal Procedure which deals with the provisions as to bail and bonds, specifically provides that 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, therefore, this Court is not inclined to accept the submission as raised by the Applicant , hence the present petition under section 482,Cr.P.C. is dismissed as not maintainable, leaving it open for the applicant to take recourse to section 439(2),Cr.P.C. Application u/s 482 Cr.P.C. dismissed (E-3) ## Text 2 All. Braj Lal Vs State of U.P. & Ors. 629 substantive as well as procedural matters. It can as well be exercised in respect of incidental or supplemental power irrespective of nature of proceedings". 8. Regarding prevention of abuse of process of Court, Apex Court in Dhanlakshmi v. R.Prasana Kumar, (1990) Cr LJ 320 (DB): AIR 1990 SC 494 has propounded "To prevent abuse of the process of the Court, High Court in exercise of its inherent powers under section 482 could quash the proceedings but there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive" as well as in State of Bihar v. Murad Ali Khan, (1989) Cr LJ 1005: AIR 1989 SC 1, Apex Court propounded "In exercising jurisdiction under Section 482 High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not". 9. Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above. 10. In view of what has been discussed above, this proceeding, under Section 482 of Cr.P.C., lacks merits and as such, this Application, under Section 482 of Cr.P.C., stands dismissed. 11. However, it is directed that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. 12. For a period of 30 days from today, no coercive action shall be taken against the applicants. However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them. ---------- (2019)10ILR A 629 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 02.07.2019 BEFORE THE HON'BLE RAJIV JOSHI, J. Application u/s 482 No. 42378 of 2018 Braj Lal ...Applicant Versus State of U.P. & Ors. ...Opp. Parties Counsel for the Applicant: In Person Counsel for the Opposite Parties: A.G.A., Moeez Uddin A. Cr.P.C., 1973 - Section 482 - For Cancellation of bail granted to opposite party no. 2 & 3 -Maintainability of Criminal Application under section 482 Cr.P.C. - when specific provision present under section 439(2) of the Code of Criminal Procedure for cancellation of bail - Present petition under section 482, Cr.P.C. for that very purpose is not maintainable. The High Court while exercising jurisdiction under section 482,C.P.C. is empowered enough to make orders in the nature as contended by the applicant but it is equally 630 INDIAN LAW REPORTS ALLAHABAD SERIES true and well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and not where specific remedy is provided by the statute. Since Section 439 (2) occurring in Chapter XXXIII of the Code of Criminal Procedure which deals with the provisions as to bail and bonds, specifically provides that 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, therefore, this Court is not inclined to accept the submission as raised by the Applicant , hence the present petition under section 482,Cr.P.C. is dismissed as not maintainable, leaving it open for the applicant to take recourse to section 439(2),Cr.P.C. Application u/s 482 Cr.P.C. dismissed (E-3) (Delivered by Hon'ble Rajiv Joshi, J.) 1. Heard applicant Sri Braj Lal, Advocate, in person. and Sri Moeez Uddin, learned counsel for opposite party no. 2 & 3. 2. By this petition under section 482,Cr.P.C., the applicant seeks cancellation of bail orders dated 25.4.2018 & 24.3.2018 to opposite party no. 2 & 3 passed by the learned Special Judge,SC/ST Act, Allahabad in Case Crime No. 362/2014, U/s 147,382,504,506 IPC and U/s 3(2)(V), SC/ST Act, S.T. No. 422/2018, Police Station Phoolpur, Allahabad. 3. A preliminary objection has been raised by the learned counsel appearing for the opposite party no. 2 & 3 regarding maintainability of the present petition on the ground that when specific provision is there under section 439(2) of the Code of Criminal Procedure for cancellation of bail, the present petition under section 482,Cr.P.C. for that very purpose is not maintainable. 4. In reply, Sri Braj Lal, Advocate submits that inherent powers of the High Court under section 482,Cr.P.C. are very wide and the same can be exercised in order to prevent the abuse of the process of any court or otherwise to secure the ends of justice. 5. No doubt, the High Court while exercising jurisdiction under section 482,C.P.C. is empowered enough to make orders in the nature as contended by the applicant but it is equally true and well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and not where specific remedy is provided by the statute. The inherent jurisdictio0.79 "n under section 482 has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in section 482 itself. 6. Since Section 439 (2) occurring in Chapter XXXIII of the Code of Criminal Procedure which deals with the provisions as to bail and bonds, specifically provides that 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, therefore, this Court is not inclined to accept the submission as raised by Sri Braj Lal. 7. The preliminary objection raised by Sri Moeez Uddin, learned counsel for the opposite parties has force and is sustained. 8. In view of the above, the present petition under section 482,Cr.P.C. is dismissed as not maintainable, leaving it open for the applicant to take recourse to section 439(2),Cr.P.C. ---------- 2 All. Nirdosh Tyagi & Ors. Vs State of U.P. & Anr. 631 (2019)10ILR A 631 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 02.08.2019 BEFORE THE HON'BLE RAJUL BHARGAVA, J. Application u/s 482 No. 27216 of 2019 Nirdosh Tyagi & Ors. ...Applicants Versus State of U.P. & Anr. ...Opp. Parties Counsel for the Applicants: Sri Zia Naz Zaidi Counsel for the Opposite Parties: A.G.A., Sri Sudhir Mehrotra, Sri Dhirendra Kumar Agrahari A. Indian Evidence Act, 1872 - Section 103 - Quashing of Charge-sheet and entire criminal proceedings - Plea of alibi cannot be examined by this Court in the exercise of its inherent powers under Section 482 Cr.P.C. - For the Plea of Alibi the burden of proof can only be discharged by leading evidence before the trial Court-Statement recorded under Section 161 of Cr.Pc is not a substantive piece of evidence - Judicial precedent- has to be understood in context of facts based on which the observation made therein are made. (Para 9,10,11,12,13 & 14) Accused resorted to indiscriminate firing upon the brother of informant who after sustaining injuries succumbed on the spot. Plea of alibi cannot be examined by this Court in the exercise of its inherent powers under Section 482 Cr.P.C. whether it is the stage of taking cognizance or the framing of charge. The Magistrate at the stage of taking cognizance of the offence has primarily to be satisfied that prima facie commission of cognizable offence is disclosed and cannot meticulously scan the statements of witnesses recorded under Section 161 Cr.P.C. and other material / evidence collected during investigation by the Investigating Officer. Section 103 of Evidence Act - The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person - This could be done by leading evidence in the trial court. Statement recorded under Section 161 Cr.P.C. is not a substantive piece of evidence and in view of proviso Sub-section (1) to Section 162 Cr.P.C. the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Authority/judicial precedent has to be understood in context of facts based on which the observation made therein are made. The ratio of a decision is generally secundum subjectam materiam. - The application under Section 482 Cr.P.C. is bereft of merit and is, accordingly, dismissed. Application u/s 482 Cr.P.C. dismissed (E-3) Case law relied upon/discussed: - 1. St. of Orissa Vs Debendra Nath Padhi (2004) 8 S.C.C. 568 2. Quinn Vs Leathem (1901) AC 495 Earls of Halsbury L.C. 3. Criminal Appeal No.1105 of 2019 Shiv Prakash Mishra Vs St. of U.P. & Ors. (S.C. of India)- Distinguished on facts. (Delivered by Hon'ble Rajul Bhargava, J.) 1. Heard Ms Zia Naz Zaidi, learned counsel for the applicants, Sri Dhirendra Kumar Agrahari, learned counsel for the opposite party no.2 and learned A.G.A. for the State and perused the material placed on record. 2. This application under Section 482 Cr.P.C. has been filed for quashing