# Suresh Singh Bhadoria & Ors v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 247
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-26
- **Case number:** Criminal Misc. Writ Petition No. 18131 of 2018
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-singh-bhadoria-ors-v-state-of-u-p-ors-45036
- **Pages:** 7

## Headnote

A. Constitution of India - Art. 226 -
Criminal
Writ
petition
-
Interim
248 INDIAN LAW REPORTS ALLAHABAD SERIES
protection from arrest, after dismissal of
writ petition - not permissible - when a
petitioner is not granted final relief & writ
petition is to be dismissed - no interim
order/relief to be granted to petitioner.

FIR
discloses
cognizable
offence
-
no
interference called for under Article 226 - After
dismissal of writ petition prayer by petitioner
for interim protection from arrest - Held - If
final relief has been declined - court would not
be justified in granting any interim relief /
interim order - by staying arrest, as a matter of
interim protection - since it will amount to
grant a relief to the petitioners without
deciding their right in any manner (Para 19)

B. Constitution of India - Art. 141 - Law
declared by Supreme Court - Binding - no
specific direction of High Court is required -
to the authorities - to follow the law laid
down by Supreme Court.

There is no presumption that the respondents
shall not follow the law laid down by Supreme
Court - to follow the law laid down by Supreme
Court - no direction of High Court required - in
absence of any factual foundation - that
authorities
are
illegally
disregarding
the
directions of Apex Court - no futile or uncalled
for directions are to be issued by this Court -
unless they are necessary for giving due justice
to the parties before Court - founded on
pleadings and facts of the case. (Para 6)

C. Ratio - Binding Precedent - Meaning -
What is binding precedent is the ratio,
i.e., the law laid down by this Court - The
law is laid down when an issue is raised,
argued and decided (Para 16)

Crl. Misc. Writ Petition dismissed. (E-5)
List of cases cited: -

## Text

1 All. Suresh Singh Bhadoria & Ors. Vs. State of U.P. & Ors.
247
stage of evidence on appearance of the
accused under section 244 of the Code. In
the first category of the case, the Apex
Court opined that the discharge prayer
can be considered before appearance of
the accused but in the second category of
the case presence of the accused has been
held necessary because the proceedings
under section 244 begins with the
appearance of the accused, therefore, in a
case where the stages provided in sections
200 to 202 of the Code have already come
to an end and the case reaches the stage of
section 244 of the Code on appearance of
the accused, the discharge prayer, in such
situation under section 245 (2) of the Code
cannot
be
entertained
without
the
appearance
of
the
accused.
This
conclusion
finds
support
from
the
observations of the Apex Court made in
para 29 of the judgment in Ajai Kumar
Ghose case. In that paragraph the Apex
Court held "If the Magistrate comes to the
conclusion that there is sufficient ground
for proceeding, he can issue process under
section 204 of the Code?. It is in fact here
that previous stage referred to in Section
245 normally comes to an end because the
next stage is only the appearance of the
accused before the Magistrate in a
warrant case under section 244 of the
Code." To put it otherwise, as and when
any process issued to the accused, the
previous stage referred to in section 245
(2) of the Code ordinarily comes to an end
but there may be Cases were discharge
prayer is made on appearance of the
accused but before the start of prosecution
evidence
or
during
the
course
of
prosecution
evidence
but
before
its
conclusion. In the subsequent situation,
the personnel presence of the accused, if
not already exempted under section 205 of
the Code, is necessary. In this view of the
matter, the submission of the learned
counsel for the petitioner that after issuing
the process under section 204 of the Code
the
Magistrate
could
consider
the
discharge prayer of the petitioner under
section 245 (2) of the Code without
personal appearance of the petitioner in
the Court, does not appear to be correct."

7. Hence, it was necessary to begin
proceeding under Section 244 Cr.P.C. with
appearance of accused. In present case
revisionists have not surrendered and have
not executed bonds for their appearance.
Hence,
Magistrate
was
well
within
jurisdiction and with reasons supported by
above precedents for passing impugned
order. There was neither exceeding of
jurisdiction nor misuse of jurisdiction or
error apparent on the face of record.

8. Hence, this revision merits its
dismissal. The revision is dismissed as such.
----------
(2020)1ILR 247

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

Criminal Misc. Writ Petition No. 18131 of 2018

Suresh Singh Bhadoria & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rajneesh Tripathi, Sri Anil Kumar Yadav

Counsel for the Respondents:
A.G.A., Sri Narendra Singh

A. Constitution of India - Art. 226 -
Criminal
Writ
petition
-
Interim
248 INDIAN LAW REPORTS ALLAHABAD SERIES
protection from arrest, after dismissal of
writ petition - not permissible - when a
petitioner is not granted final relief & writ
petition is to be dismissed - no interim
order/relief to be granted to petitioner.

FIR
discloses
cognizable
offence
-
no
interference called for under Article 226 - After
dismissal of writ petition prayer by petitioner
for interim protection from arrest - Held - If
final relief has been declined - court would not
be justified in granting any interim relief /
interim order - by staying arrest, as a matter of
interim protection - since it will amount to
grant a relief to the petitioners without
deciding their right in any manner (Para 19)

B. Constitution of India - Art. 141 - Law
declared by Supreme Court - Binding - no
specific direction of High Court is required -
to the authorities - to follow the law laid
down by Supreme Court.

There is no presumption that the respondents
shall not follow the law laid down by Supreme
Court - to follow the law laid down by Supreme
Court - no direction of High Court required - in
absence of any factual foundation - that
authorities
are
illegally
disregarding
the
directions of Apex Court - no futile or uncalled
for directions are to be issued by this Court -
unless they are necessary for giving due justice
to the parties before Court - founded on
pleadings and facts of the case. (Para 6)

C. Ratio - Binding Precedent - Meaning -
What is binding precedent is the ratio,
i.e., the law laid down by this Court - The
law is laid down when an issue is raised,
argued and decided (Para 16)

Crl. Misc. Writ Petition dismissed. (E-5)
List of cases cited: -

1. Joginder Kumar Vs St. of UP 1994 Cri.L.J.
1981, 1994(4) SCC 260

2. Lal Kamlendra Pratap Singh Vs St. of UP
2009 (4) SCC 437

3. Smt. Amarawati & anr Vs St. of UP 2005(1) AWC 416

4. D.K. Basu Vs St. of WB 1997 (1) SCC 416
5. K.K. Jerath Vs Union Territory, Chandigarh &
Ors JT 1998(2) SC 658

6. St. of Ori Vs Madan Gopal Rungta AIR 1952
SC 12

7. Amarsarjit Singh Vs St. of Pun AIR 1962 SC 1305

8. Cotton Corporation of India Limited Vs
United Industrial Bank Limited & ors AIR 1983
SC 1272

9. Km. Hema Mishra Vs St. of UP & Ors (2014)
4 SCC 453

(Delivered by Hon'ble Sudhir Agarwal, J.
Hon'ble Rajeev Misra, J.)

1. Sri Anil Kumar Yadav, Advocate,
holding brief of Sri Rajneesh Tripathi,
learned counsel for petitioners and learned
A.G.A. appearing for State are present.

2. This writ petition under Article
226 of Constitution has been filed seeking
a writ of certiorari for quashing of First
Information Report dated 22.04.2018,
registered as Case Crime No. 212 of 2018,
under Sections 147, 498A, 323, 504, 506,
313 I.P.C. and Section 3/4 of Dowry
Prohibition Act, Police Station Kishni,
District Mainpuri.

3. From perusal of first information
report it cannot be said that commission of
a cognizable offence is not made out.
There is no material on record to
demonstrate that proceedings initiated by
means of aforesaid report are vexatious,
frivolous or otherwise illegal. In the
circumstance, no interference is called for.

4. The learned counsel for the
petitioners
then
submitted
that
respondents-authorities be directed not to
arrest petitioners by observing the law laid
down by Apex Court in Joginder Kumar
1 All. Suresh Singh Bhadoria & Ors. Vs. State of U.P. & Ors.
249
Vs.
State
of
U.P.
1994
Cri.L.J.
1981=1994(4) SCC 260, Lal Kamlendra
Pratap Singh Vs. State of U.P. 2009 (4)
SCC 437 and this Court in Smt.
Amarawati and another Vs. State of
U.P., 2005(1) AWC 416. He also said that
similar orders have been passed by this
Court in many matters and, therefore,
following the principle of parity similar
direction must be issued in this case also.

5. We propose to examine on this
aspect of the matter with deeper scrutiny.
It is not the case of petitioners that they
have already surrendered or that though
they have attempted to surrender but there
is any illegal, unauthorised obstruction
created by respondents in such endeavour
of petitioners. It is also not the case that
any authority of this Court or Apex Court
though cited before court concerned but it
has refused to consider the same or
ignored. No such allegations have been
made.

6. The law laid down by Apex Court
by virtue of Article 141 of the Constitution
of India, is binding on all courts and
authorities
across
the
nation
and
everybody is supposed to act in the aid and
enforcement of such law laid down by
Supreme Court. There is no presumption
that the respondents shall not follow the
law laid down by Supreme Court. There is
also no presumption that a decision of
Supreme Court laying down certain law, if
cited, in support of arguments by a party,
that would not be looked into and
appreciated by anyone. To follow the law
laid down by Supreme Court, no sanction
or approval or direction of this Court is
required. To ask for such direction, when
there is no factual foundation in the writ
petition, is nothing but doubting the
capability, approach and efficiency of the
respondents, which is not in the larger
public interest. Moreover, in absence of
any
factual
foundation,
it
is
well
established that no futile or uncalled for
directions are to be issued by this Court.
Its hand are already full of work and rather
extremely
loaded
therewith,
hence
entertaining cases just for futile direction,
which ex facie deserved to be dismissed,
would
be
nothing
but
encouraging
avoidable unnecessary burden upon this
Court.

7. Even otherwise a direction to
follow a decision of Apex Court without
appreciating, whether it applies on the
facts and circumstances of the case and
would be cited by parties concerned, is
like anticipating something, which is not
existing in presenti and on the facts of the
case, may not be applicable.

8. Moreover, in the entire writ
petition there is no factual foundation laid
down by petitioners that police authorities
are
trying
to
arrest
them
illegally
disregarding the directions of Apex Court
in Joginder Kumar (supra) and Lal
Kamlendra Pratap Singh (supra) as well
as this Court in Smt. Amarawati (supra).
In absence of any factual foundation the
direction sought from this Court are
neither justified nor appropriate nor should
be issued by presuming certain facts which
are not part of record and petitioners
themselves have not made any complaint
in respect thereof.

9. It may also be pointed out that in
none of the cases referred to above there is
any complete embargo against arrest by
police if it is otherwise justified.

10. In Joginder Kumar (supra), a
habeas corpus writ petition under Article
250 INDIAN LAW REPORTS ALLAHABAD SERIES
32 of the Constitution was filed before
Supreme Court alleging about unlawful
detention of petitioner (a practising lawyer)
by police authorities and seeking his release.
The
Senior
Superintendent
of
Police,
Ghaziabad appeared before Court and
admitted to have detained petitioner for five
days, not in detention but for taking his help
in inquiry/investigation of an offence of
abduction. Since the petitioner was already
released by police, the Court found that relief
in habeas corpus now cannot be granted. Yet
it enquired as to how and in what
circumstances, without informing the court
concerned, an individual could be detained by
police for five days. The Court found it a case
of massive violation of human rights, besides
the statutory legal provisions relating to arrest
etc. The Court held that law of arrest is one of
balancing individual rights, liberties and
privileges, on the one hand; and, individual
duties, obligations and responsibilities on the
other hand. The Court said that an arrest
cannot be made merely for the reason that a
police officer is empowered under law to do
so. The existence of power is one thing and
justification for exercise thereof is another.
Genuine, justified and satisfactory reasons
must exist before a police officer should go to
arrest a person so as to curtail his fundamental
right of life and liberty. A person is not liable
to arrest merely on suspicion of complicity of
offence. Except in heinous offences, an arrest
must be avoided unless there exists reason
therefor. That was not a case where after
inquiry or investigation by police, a charge
sheet was filed and thereupon an incumbent
was to surrender himself to the Court, and the
power of Court either to release him on bail if
so requested, or to sent him in judicial
custody was under consideration.

11.

This
decision
then
was
considered in D.K. Basu Versus State of
West Bengal 1997 (1) SCC 416 which
was a public interest litigation entertained
by Supreme Court taking cognizance of a
letter received from Executive Chairman,
Legal
Aid
Services,
West
Bengal
complaining
about
certain
custodial
deaths.

12. The decision in Joginder Kumar
(supra) in similar circumstances has been
referred and followed subsequently also in
K.K.
Jerath
Vs. Union Territory,
Chandigarh and others, JT 1998(2) SC
658 which was a case of anticipatory bail
under Section 438 Cr.P.C. apprehending
arrest during a C.B.I. inquiry. It was
attempted
to
argue
that
there
is
presumption of innocence in favour of
each individual until charge against him is
established and, therefore, it would not be
consistent with philosophy of Constitution
that such a person should be subjected to
interrogation
by
application
of
psychological or ambient pressures much
less physical torture. It was stressed that
Apex Court has a duty to protect a citizen
against such inroads of these fundamental
rights. The Apex Court while dismissing
petition observed that in considering a
petition for grant of bail, necessarily, if
public interest requires detention of citizen
in custody for purposes of investigation, it
would be allowed otherwise there could be
hurdles in investigation even resulting in
tampering of evidence. In other words the
Apex Court did not find any attraction in
the arguments for the reason that a bail
application has to be considered in the
light of already established principle
through various judicial precedents and
not on mere asking.

13. There are several subsequent
cases also wherein the Apex Court has
distinguished the cases where there was no
allegation of misuse of power of arrest by
1 All. Suresh Singh Bhadoria & Ors. Vs. State of U.P. & Ors.
251
police authorities and an incumbent was
arrested having been found prima facie
guilty of commission of a cognizable
offence.

14. In Lal Kamlendra Pratap Singh
(supra) the matter came to be considered
before the Court for quashing of a first
information report. Here also apprehended
arrest due to mere registration of a first
information
report.
The
matter
was
brought
before
this
Court
seeking
quashing of first information report. The
High Court dismissed the application and
thereagainst the matter was taken to Apex
Court. A complaint was made that during
investigation
or
inquiry,
petitioners
apprehend their arrest by police authorities
in an arbitrary manner. It is in this context
the Court reminded police authorities to
follow the dictum and direction laid down
in Joginder Kumar (supra). When the
matter was pending before Supreme Court,
the police completed investigation and
submitted a charge sheet. The Court then
declined to interfere since the charge sheet
was submitted and permitted petitioner to
approach the court concerned by filing a
bail application. The Court approved and
reminded a seven Judges decision of this
Court
in
Smt.
Amarawati
(supra)
wherein an observation was made that the
absence of power of anticipatory bail in
State of U.P. would not debar the
concerned Court/Magistrate to grant an
interim bail if there is any likelihood of
delay in disposal of bail application
finally.

15. Here also in Lal Kamlendra
Pratap Singh (supra), there is no
direction by Apex Court that even if there
is no factual foundation or that there is
some justification for the police still a
blanket direction can be issued to police
which may, in a given case, influence or
interfere with the smooth investigation. It
is also well settled that no uncalled for
observations or directions should be issued
by this Court unless they are necessary for
giving due justice to the parties before
Court, founded on pleadings and facts of
the case.

16. So far as various orders cited at
Bar, we find that in none of those case all
these aspects have, as discussed above,
have been raised, argued and decided and
those judgements do not lay down any
binding precedent. The ultimate direction
or action of the Court do not constitute a
binding precedent.
What
is
binding
precedent is the ratio, i.e., the law laid
down by this Court. The law is laid down
when an issue is raised, argued and
decided. That is not so in respect to orders
cited at Bar.

17. It is lastly contended that till
charge-sheet is submitted, as a matter of
interim protection, arrest of petitioners
may be stayed and at least to this extent,
an interim order may be passed.

18. The submission, in our view,
lacks substance being contrary to law that
when a petitioner is not granted final relief
and writ petition is to be dismissed, no
interim order in such matter can be passed.

19. Once the writ petition has to be
dismissed, this Court has no power to pass
any order in the nature of interim or
interlocutory order. The Apex Court has
deprecated such practice and has held, if
final relief has been declined, no interim
relief/interim order should be granted to
petitioners. The first such case is State of
Orissa Vs. Madan Gopal Rungta AIR
1952 SC 12. Therein High Court declined
252 INDIAN LAW REPORTS ALLAHABAD SERIES
to grant final relief on the ground that
there was an alternative remedy available
to petitioner and, therefore, dismissed the
writ petition relegating petitioner to avail
alternative remedy, but then observing that
before filing suit, 60 days' notice under
Section 80 C.P.C. will have to be given,
which will take some time, an interim
relief was granted. Deprecating this, Apex
Court said that grant of relief under Article
226 is founded only on its decision that a
right of the aggrieved party has been
infringed. Therefore, existence of right is
foundation of exercise of jurisdiction
under Article 226. When the Court has
decided nothing at all in respect to rights
of parties, it would not be justified to grant
any relief, final or interim, as the case may
be, since Article 226 does not confer such
jurisdiction. In para 6 of the judgment, the
Court said:

"In our opinion, article 226
cannot be used for the purpose of giving
interim relief as the only and final relief on
the application as the High Court has
purported to do. The directions have been
given here only to circumvent the
provisions of section 80 of the Civil
Procedure Code, and in our opinion that is
not within the scope of article 226. An
interim relief can be granted only in aid of
and as ancillary to the main relief which
may be available to the party on final
determination of his rights in a suit or
proceeding. If the Court was of opinion
that there was no other convenient or
adequate remedy open to the petitioners, it
might have proceeded to investigate the
case on its merits and come to a decision
as to whether the petitioners succeeded in
establishing
that
there
was
an
infringement of any of their legal rights
which entitled them to a writ of mandamus
or any other directions of a like nature;
and pending such determination it might
have made a suitable interim order for
maintaining the status quo ante. But when
the Court declined to decide on the rights
of the parties and expressly held that they
should be investigated more properly in a
civil suit, it could not, for the purpose of
facilitating the institution of such suit,
issue directions in the nature of temporary
injunctions, under article 226 of the
Constitution. In our opinion, the language
of article 226 does not permit such an
action. On that short ground the judgment
of the Orissa High Court under appeal
cannot be upheld."

20. The aforesaid dictum has been
followed in Amarsarjit Singh Vs. State
of Punjab AIR 1962 SC 1305 (para 22),
Cotton Corporation of India Limited
Vs. United Industrial Bank Limited and
others AIR 1983 SC 1272 (para 10) and
recently in Km. Hema Mishra Vs. State
of U.P. and others (2014) 4 SCC 453
(para 22).

21. In view thereof, we have no
hesitation in observing that the prayer for
quashing the F.I.R. if is declined on the
ground that allegations contained therein
discloses cognizable offence, therefore, no
interference is called for at this stage, this
Court would not be justified in granting
any relief as an interim order by staying
arrest since it will amount to grant a relief
to the petitioners without deciding their
right in any manner and this would be
against the exposition of law settled by
Apex Court in the aforesaid decisions.

22. Even otherwise, at this stage, this
Court is not examining legality or
otherwise of arrest made by Police, since
neither any one has been arrested nor this
writ petition as such has been filed with a
1 All. Pawan Kumar Vs. State of U.P. & Ors.
253
complaint that Police or Investigating
Officer has committed violation of any
provision pertaining to arrest of any person
or the petitioners themselves. The main
relief in the writ petition is for quashing of
first information report which, admittedly
having
disclosed
commission
of
cognizable offence is not liable to be
interfered with at this stage.

23. In view of above, no interference
is called for.

24. The writ petition is dismissed.
----------
(2020)1ILR253

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.11.2019

BEFORE
THE HON'BLE MANOJ MISRA, J.
THE HON'BLE VIRENDRA KUMAR
SRIVASTAVA, J.

Criminal Misc. Writ Petition No. 21811 of 2019

Pawan Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Uma Nath Pandey

Counsel for the Respondents:
A.G.A.

A. Indian Penal Code, 1860 - Sections 441
& 447 - Criminal Trespass - Section 441
IPC is in two parts - term "such property"
occurring
in
second
part
refers
to
"property in the possession of another" -
Applicability of second part - second part
become applicable - when a person
enters into - 'property in the possession
of another person' - S. 441 not applicable
where a person is in possession of his
own property as an owner or where he
does not retain possession or maintain
use of the 'property of another.' (Para 12)

Allegation petitioner unauthorizedly raising
constructions and developing colony over plot
without prior sanction - Admittedly in the
revenue records plot recorded in the name of
petitioner in the capacity of Director of
Company - Held - petitioner is the owner & in
possession of plot, he has not entered into or
upon property in possession of another person
- even if the petitioner raises constructions,
which may be unauthorized, he would not be
liable for an offence of criminal trespass
punishable under section 447 I.P.C. (Para 13)

Crl. Misc. Writ Petition allowed. (E-5)

(Delivered by Hon'ble Manoj Misra, J. &
Hon'ble Virendra Kumar Srivastava, J.)

1. Heard learned counsel for the
petitioner; learned A.G.A. for the respondents
1 and 2; and perused the record.

2. The instant petition seeks quashing
of the first information report (for short
F.I.R.) dated 20.07.2019 registered as Case
Crime No.847 of 2019 at P.S. Surajpur,
District Gautam Budh Nagar, under
section 447 IPC.

3. The impugned FIR has been
lodged by an officer of the Greater Noida
Industrial
Development
Authority,
Gautambudh
Nagar
(for
short
the
Authority) by alleging that the petitioner is
unauthorizedly raising constructions and
developing colony over plot No.918 at
village Tilpata, which falls within the
notified area of the Authority, without
obtaining
prior
sanction
for
such
development.

4. The petitioner has challenged the
impugned FIR on two grounds: (a) that the
petitioner was developing his own land