# Criminal Misc. Writ Petition No. 16259 of 1992 Dr. Hidayat Husain Khan v

- **Citation:** C.L. No. 38/VIIIa-50/Admn.(G)
- **Court:** Allahabad High Court
- **Decided:** 1992-06-17
- **Case number:** C.L. No. 38/VIIIa-50/Admn.(G)
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/criminal-misc-writ-petition-no-16259-of-1992-dr-hidayat-husain-khan-v-163353
- **Pages:** 5

## Text

237
(xii)
Criminal Misc. Writ Petition No. 16259 of 1992 Dr. Hidayat Husain Khan v.

State of U.P.
C.L. No. 38/VIIIa-50/Admn.(G), dated June 17, 1992
I am directed to enclose herewith a copy of judgment dated 14.5.1992 passed by
a Division Bench of this Court in the above noted case in the matter of disposal of bail
applications by the Subordinate Courts on the day the accused surrendered before the
court, and to say that a copy of this Judgment be circulated to the Chief Judicial
Magistrate and other concerned Magistrate under your supervision for their information
and necessary compliance.
 (xiii)
Information in regard to filing of the fake bail orders of Hon'ble High
Court.
C.L. No.13/ dated March 13, 1996
Recently the Hon'ble High Court while disposing the Bail Application No.9973 of
1984 Kashmir Singh v. State relating to Bareilly District and Bail Application No. 6630
of 1995 Om Pal v. State relating to District Meerut noticed that fictitious bail orders,
which have not been passed by Hon'ble High Court, have been issued by some agency
not connected with the High Court. The Court has taken a serious view of this matter and
an enquiry has been ordered into the whole matter to be conducted by C.B., C.I.D.

The Court has desired that all such cases, if come to the notice of any court
situated in your District they be brought to the knowledge of the Hon'ble High Court for
comprehensive enquiry and action.
I am, therefore, to request you to bring this fact to the knowledge to each
Presiding Officer of your Judgeship so that any such case may not escape from the notice
of the Hon'ble Court.
 (xiv) Practice of granting pre-emptive bails
C.L. No. 36/dated September 8, 1995
Hon'ble Court in Criminal Revision No.181 of 1995 Prem Narain v. State of
U.P., have been pleased to observe that pre-emptive bails are not permissible as has been
held by Hon'ble Supreme Court in the case of Dasharath Pandey v. State of Bihar, JIC
l995 page 353. The copy of the said order is annexed with this letter.
Kindly bring it to the notice of all the officers of your Judgeship for their future
guidance.
Dasharath Pandey v. State of Bihar, 1995 JIC 353 (SC)
Criminal Procedure Code, 1973, Section 439, Power of High Court to grant bail-
Bail granted by the order of High Court- Release made effective on a future date ranging
between 6 months to one year-Validity of the order.
If the accused is due for bail, then he should get it then and there. In case he is not
due for bail instantly then the petition should be dismissed that the prayer of bail be

 Overruled by F.B. in Vinod Narain vs. State of U.P., 1995(32) A.C.C. 375
238
reiterated at a future date. The orders impugned herein are somewhat pre- emptive of the
duties of the Court. In this view of the matter all such orders of High Court are set aside
and orders are passed to remit these matters back to it for individual consideration on
merits of each case.
(Paras 2 and 3) JUDGMENT
M.M. Punchhi, J.-Leave granted.
2.
Similarity of the order passed by the learned Single Judge strikes us. The learned
Judge has ordered release on bail of the respective appellants on furnishing a bond, but
the effective release has been ordered on a future date ranging between 6 months to one
year. We have noticed identical orders earlier also. This seems to have become a pattern
with the High Court in the manner of dealing with such matters. We regret to record that
we are not appreciative thereof. If the accused is due for bail, then he should get it then
and there. In case he is not due for bail instantly then the petition should be dismissed
suggesting that the prayer of bail be reiterated at a future date. The orders impugned
(herein) are somewhat pre-emptive of the duties of the Court.
3.
In this view of the matter, we set aside all these orders of the High Court and
remit matters back to it for individual consideration on merits of such case. The appeals
stand allowed accordingly.
4.
Copies of the order be supplied to learned counsel within a day and also be
dispatched to the High Court within the same duration for appropriate orders.
(xv)
Disposal of bail application
C.L.No.50/Allahabad, Dated: 11.6.1998

As directed by the Hon'ble Court, copy of the Judgment given in Criminal
Misc. Bail Application No.12985 of 1998, Amit Vs. state of U.P., is being enclosed for
information and the same be also circulated amongst all the judicial Officers.
(See for Judgment.)
Circulation of the order dated 23.3.2006 passed in Criminal Misc. Application No.
8810 of 1989 - Babu Lal and others v. Smt. Momina Begum and Criminal Misc.
Application No. 8811 of 1989 - Parasnath Dubey and others v. State of U.P. and
others
C.L. No. 33 /2006: Dated: 7-8-2006
In supersession of the Court's earlier Circular Letter No.45/ Admn. (A), dated July
28, 1989, I am directed to say that in Criminal Misc. Application No.8810 of 1989 -Babu
Lal and others Vs. Smt. Momina Begum and Criminal. Misc. Application No.8811 of
1989 -Parasnath Dubey and others. Vs. State of U.P., and others the Hon'ble Court has
been pleased to observe as under:-
" ......that the cases, where Sections 436 and 437 Cr .P .C. under the provisions
of Chapter XXXIII would be applicable would not be dealt with by the procedure
under Section 88, inasmuch as, the considerations for granting bail are different
and includes several other aspects, which are not to be considered while applying
Section 88. For example, where a person is accused of a bailable offence and
239
processes are issued, as and when he appears before the Court either after his
arrest or after detention or otherwise, if he shows his readiness to give bail to the
Court, he shall be released on bail. Therefore, a person accused of a bailable
offence needs to be personally present before the Court and has to be ready to
give bail before he has to be released on bail. But where a person is accused of
non-bailable offence, as and when he appears before the Court whether by arrest
or detention or otherwise, he may be released on bail by a Court other then High
Court and the Court of Sessions under Section 437, Cr.P.C subject to satisfaction
of certain conditions, namely that he does not reasonably appear to have been
guilty of an offence punishable with death or imprisonment for life. The condition
of not releasing the person on bail with respect to offence punishable with death
or imprisonment for life is not applicable where such person is under 16 years of
age or is a woman or is sick or infirm subject to the conditions, as the Court may
deem fit, may be imposed: Therefore, the power to release on bail under Section
437, Cr.P.C. is restricted and subject to certain conditions which cannot be made
redundant by taking recourse to Section 88 Cr.P.C. where process has been issued
taking cognizance of a complaint, where the allegations of commission of non
cognizable offence has . been made against a person. These are illustrative and
not exhaustive but are necessary to demonstrate that Section 88, in all such
matters will have no application. This also shows that by necessary implication
Section 88 in such general way, cannot be applied and has no scope for such
application. Where there is overlapping power or provision, but one provision is
specific while other is general, the law is well settled that specific and special
provision shall prevail over the general provision in the matter of accused. Since
the procedure with respect to bail and bonds, is provided under Chapter 33 of
Cr.P.C. in our view, section 88 would not be attracted .
The Hon'ble Court has also been pleased to observe that:
"......... as to whether the cognizance is taken on a police report or on a
complaint or otherwise, the process has to be issued as per the procedure
prescribed under Section 204 Cr. P .C. The provisions with respect to bail and
bonds have been made under Chapter XXXIII of Cr.P.C., 1973 i.e., Sections 436
to 450. Section 436 deals with cases where the bail is to be taken by an accused
other than a person accused of a non-bailable offence and Section 437 Cr.P.C.
applies to non- bailable offence cases."
The Hon'ble Court further observed:-
"....... the power under Section 88 is much wider. When the accused approaches
the Court for bail, the Magistrate in its discretion may require him to execute bail
bonds, since the language of statutes under Section 88 Cr.P.C. is wider and the
objective and purpose is to ensure the presence of the person concerned.
Therefore, speaking generally, it may be said that where an accused is entitled to
approach the Court for bail under Sections 436 and 437 Cr.P.C., he may also be
governed by Section 88 Cr.P.C., which is not qualified and encompass within its
ambit an accused, a witness or any other person. However, Sections 436 and 437
Cr.P.C. deal only with the "accused person". Although the word 'person' has also
been used il1 Sections 436 and 437 of Cr. P.C. but it is qualified with the word
240
"accused' and therefore, the aforesaid provisions are applicable only to such
category of persons, who are accused of bailable or non-bailable offence. It may
thus be said, referring to Section 88, in respect of accused, that, it may have
applicable where the Court has issued process to an accused but it has not actually
been served upon him and yet if he appears before the Court, in such cases the
Court is empowered to ask for bail bonds from such accused person to ensure his
presence before the Court in future. This is one aspect and demonstrates that the
scope of Sections 88 and 89 Cr .P .C. is much wider qua Section 436 and 437 Cr
.P .C."
The Hon'ble Court has further observed:-
"....However, to read Sections 88 and 89 Cr.P.C. in such a manner so as to
confine it to the matters, which are to be dealt with by Sections 346 and 437
Cr.P.C would amount to give a narrow construction to the objective and scope
enunciated under Section 88 and 89 of Cr .P .C. Such a construction, in our view
is neither desirable nor permissible. Whenever proceedings are initiated by the
Magistrate, the accused has a right to approach the Court; for bail. Whether the
summon or warrant is actually served upon the accused, may itself be not relevant
but as soon as the same are issued by the Court, the accused has a right to
approach the Court and request for bail."

"Thus, we are of the view that the case which will be governed by the
Sections 436 & 437 Cr.P.C. it is not necessary to apply the provisions of Section
88 of Cr.P.C. for the reason that Sections 436 & 437 Cr.P.C1. are specific
provisions and deal with particular kind of cases, whereas the scope of Sections
88 and 89 Cr.P.C. is much wider as discussed above. The case in which Section
436 Cr.P.C. is applicable, an accused person has to appear before the Court and
thereafter only the question of granting bail would arise. Anyone, who is an
accused, has been conferred a right to appear before the Court and if the Court is
prepared to give bail, he shall be released on bail. The same equally applies with
respect to Section 437 Cr. P.C also. Therefore1 where a summon or warrant is
issued by a. Court in respect of an accused, the procedure under Section 436 and
437 Cr. P .C. has to be followed and summons or warrant, which have been
issued by the Court, have to be executed and honoured. The necessary corollary
would be that Sections 88 and 89 Cr. P .C. as such, would not be attracted in such
cases. However, we make it further clear that considering the language of
aforesaid provisions, whether the bail bond is required to be executed under
section 88 Cr. P.C. or the Court gives bail under Section 436 and 437 Cr. P.C.,
the appearance of the person before the Court is must and cannot be dispensed
with at all.‖
I am, therefore, directed to send herewith a copy of the judgment and order dated
23.03.2006 passed in the Criminal Misc. Applications aforesaid by the Hon'ble Court for
your information and strict compliance of the directions as contained therein. The
directions of the Court may kindly be brought to the notice of all the Judicial Officers in
the Judgeship for their guidance and strict compliance.
241
(xvi)
Verification of bail orders at the cost of State.
C.L. No. 13/2005 Dated 1st April, 2005
I am directed to say that upon a careful consideration of matter pertaining to a
complaint that for getting the genuineness of bail orders seemingly passed by the
Hon'ble High Court a sum of Rs. 100/- is required to be deposited in the District
Judgeship of Azmagarh, the Hon'ble Court has been pleased to provide that the
genuineness of bail orders seemingly passed by the Hon'ble Court shall be verified at the
cost of the State.
I am, therefore, to request that the measure so provided, be brought to the notice
of every Judicial Officer under your administrative control, for compliance faithfully and
punctually.
3.
RELEASE ORDER
C.L. No. 124/VIIb-47, dated 24th October, 1979
In order to rule out the possibility of a prisoner securing his release from jail on the
basis of a forged release order, the Court has issued following instruction, which should
be strictly and faithfully followed by the presiding officers and the officials concerned in
issuing and scrutinizing release orders.
(a)
The release orders must contain the full name of the Presiding officer of
the issuing court below his signature and bear the seal of the court
invariably in a distinct manner;
(b)
When an order for the release of a prisoner, who has already been
transferred to another jail outside the district, is received and returned by
the Superintendent of Jail to the issuing court, with a report indicating the
date of transfer and the name of the jail to which the prisoner was
transferred, the court shall then send the release order by post to the jail
concerned and at the same time follow the procedure laid down in para (c)
below;
(c)
When a release order is issued by post to a jail outside the district, the
Presiding Officer of the court shall immediately give an intimation about
its dispatch by radiogram to the Superintendent of that jail.
(d)
In addition to supplying a list containing the names and specimen
signatures of all Presiding Officers of courts to the Superintendent of local
district jail (and also to any other jail or similar institution that functions in
the district), changes in the post of Presiding Officer should also be
intimated from time to time as they occur.
C.L. No. 73/VIII-47 , dated 18th November, 1982
To avoid release of convicts on forged bail orders more than ordinary care should
henceforth be taken before convicts are released on the basis of orders which purport to
have been passed by the Supreme Court of India. The concerned authority should also
satisfy himself carefully whether the bail orders in fact have been passed by the Supreme
Court and the convicts should be released upon such satisfaction. Convicts ought not to