# Syed Arman v. State of U.P

- **Citation:** (2012) 1 ILRA 147
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-10
- **Case number:** Criminal Misc. Writ(P.I.L) Petition No. 1124 of 2011
- **Bench:** Amar Saran, Ramesh Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/syed-arman-v-state-of-u-p-42143
- **Pages:** 6

## Headnote

Constitution of India-Art. 226 readwith
Code of Criminal Procedure-Section 437A-Public
Interest
Litigation
Petitionseeking direction to introduce provision
of newly added Section 437-A in all
Court of U.P. Including High Court-filling
of band in shape of Form 45 can be
meant applicable before Trail Court for
conviction upto 3 years only and not
beyond that-considering 15th report of
Law Commission if such practice adopted
speedy disposal of Criminal appeal-shall
be
badly
affected
by
granting
adjournment in compliance of Section
437-A and further in case of default of
appearance inspite of NBW in taking
action under Section 446 Cr.P.C-before
issuing
direction
to
the
State
Government for necessary amendmentAdditional Solicitor General, Advocate
General and other concern authorities to
address the Court forming final opinion.

Held Para 18

The State and Central legislatures should
also
consider
amending
or
utilizing
sections 441(3) or Explanation to section
446(1), Form 45 (2nd Schedule) or by
introducing a new provision which could
provide that the bail bonds which the
accused and his sureties fill up after the
accused is released on bail on the filing
of the appeal against conviction or
acquittal, that same bond could be made
to operate for a period of one year or six
months
after
the
delivery
of
the
judgment by the High Court, till such
time as fresh bonds are got executed by
the Supreme Court. That would obviate
the need for the High Court getting fresh
bonds executed by the accused and his
sureties at the time of final hearing of
the matter as has been provided under
section 437 A., and in the event that an
accused does not turn up in response to
the Supreme Court's summons on leave
to appeal being granted, the bonds of
the accused and his sureties could be
forfeited under section 446 Cr.P.C. and
appropriate
penalty
or
punishment
realized from the accused or his sureties
for the default.

## Text

1 All] Syed Arman V. State of U.P.

147
selection of one of legal heirs of deceased
by draw of lots is impermissible.

11. We do not find any infirmity in the
policy and scheme which is uniformly
applied by the authorities in selecting one of
the co-tenure holders or one of the legal
heirs of the deceased for allotment of
residential plots.

12. None of the submission raised by
the learned counsel for the petitioners has
any substance. Petitioner is not entitled for
any relief in writ petition.

13. The petition is accordingly
dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2012

BEFORE
THE HON'BLE AMAR SARAN,J
THE HON'BLE RAMESH SINHA,J

Criminal Misc. Writ(P.I.L) Petition No.
1124 of 2011

Syed Arman

 ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
.....................................

Counsel for the Respondent:
Sri Vimlendu Tripathi (A.G.A.)

Constitution of India-Art. 226 readwith
Code of Criminal Procedure-Section 437A-Public
Interest
Litigation
Petitionseeking direction to introduce provision
of newly added Section 437-A in all
Court of U.P. Including High Court-filling
of band in shape of Form 45 can be
meant applicable before Trail Court for
conviction upto 3 years only and not
beyond that-considering 15th report of
Law Commission if such practice adopted
speedy disposal of Criminal appeal-shall
be
badly
affected
by
granting
adjournment in compliance of Section
437-A and further in case of default of
appearance inspite of NBW in taking
action under Section 446 Cr.P.C-before
issuing
direction
to
the
State
Government for necessary amendmentAdditional Solicitor General, Advocate
General and other concern authorities to
address the Court forming final opinion.

Held Para 18

The State and Central legislatures should
also
consider
amending
or
utilizing
sections 441(3) or Explanation to section
446(1), Form 45 (2nd Schedule) or by
introducing a new provision which could
provide that the bail bonds which the
accused and his sureties fill up after the
accused is released on bail on the filing
of the appeal against conviction or
acquittal, that same bond could be made
to operate for a period of one year or six
months
after
the
delivery
of
the
judgment by the High Court, till such
time as fresh bonds are got executed by
the Supreme Court. That would obviate
the need for the High Court getting fresh
bonds executed by the accused and his
sureties at the time of final hearing of
the matter as has been provided under
section 437 A., and in the event that an
accused does not turn up in response to
the Supreme Court's summons on leave
to appeal being granted, the bonds of
the accused and his sureties could be
forfeited under section 446 Cr.P.C. and
appropriate
penalty
or
punishment
realized from the accused or his sureties
for the default.

(Delivered by Hon'ble Amar Saran,J)

1. Heard Shri Vimlendu Tripathi,
learned Additional Government Advocate
and recorded the submissions advanced by
him.
148 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

2. An application was given by Syed
Arman, convict in Barrack No.10, District
Jail, Moradabad dated 31.8.2010 to the
Registrar of the Supreme Court, New Delhi,
which mentioned that Section 437A Cr.P.C.
may be made applicable in all the Courts of
Uttar Pradesh. This letter was forwarded by
the Ministry of Law & Justice, Government
of India, New Delhi to the High Court,
Allahabad. On the orders of the Chief
Justice this petition has been placed before
this bench hearing criminal PILs.

3. The letter mentioned that a new
provision Section 437A Cr.P.C. has been
introduced , which requires that prior to six
months' of the judgment by the trial Court,
the Court shall release the accused on their
furnishing bail bonds. This provision
according to the convict's letter has been
introduced in order to facilitate, the accused
persons for doing pairvi of their cases and to
save them from the harassment by lawyers.

4. The letter further mentioned that
only one Court at Kanpur started this
practice, but the other Courts in UP are not
following the same and that a direction be
issued by the Supreme Court to all Courts in
UP to follow this practice.

5. Prima-facie, we find no substance
in the interpretation of Section 437-A
Cr.P.C. suggested by the convict that all the
convicted persons, irrespective of the period
of sentence awarded to them, be released on
bail on their executing bail bonds, whose
trials are likely to be concluded within six
months prior to the disposal of the trial or
appeal, in order to facilitate pairvi by the
prisoners. Section 437A Cr.P.C. is being
quoted below :

"437A- Bail to require accused to
appear before next appellate Court. - (1)
Before conclusion of the trial and before
disposal of the appeal, the Court trying
thee offence or the Appellate Court, as the
case may be, shall require the accused to
execute bail bonds with sureties, to appear
before the higher Court as and when such
Court issues notice in respect of any
appeal or petition filed against the
judgement of the respective Court and
such bail bonds shall be in force for six
months.

If such accused fails to appear, the
bond stand forfeited and the procedure
under section 446 shall apply."

6. Section 437-A Cr.P.C. only
requires that before conclusion of the trial or
appeal, the Court trying the offence or the
appellate Court shall require the accused to
execute bail bonds with sureties to appear
before the higher Court, if and when such
Court issues notice in respect of any appeal
or petition filed against the judgement of the
respective Court and such bail bonds shall
remain in force for six months. If the
accused fails to appear, the bond shall stand
forfeited and the procedure under Section
446 shall apply. Section 437 A it may be
noted, nowhere speaks of releasing the
accused on bail, and in this respect it is quite
different from sections 389, . 436, 437 and
439 of the Code of Criminal Procedure.

7. The purpose of this Section can be
elicited from a perusal of the 154th Report
of the Law Commission, 1996, which
mentions that in many cases where appeals
against acquittals have been filed or in cases
where
appeals
for
enhancement
of
sentences are filed in the higher Courts,
after the appellate Court admits the appeal
they are not in a position to secure the
presence of acquitted accused, even though
non-bailable warrants are issued to the
1 All] Syed Arman V. State of U.P.

149
police agency and very often they are
unable to serve notices as well as nonbailable warrants on the accused for long
periods of time. Some times warrants are
returned saying that the police have no
information
whatsoever
regarding
the
whereabouts of the respondents. A large
number of such appeals after admissions are
pending
in
various
appellate
Courts
(including the Supreme Court) without
being disposed of since the service could
not be effected or where the presence of
acquitted accused could not be secured in
spite of issuance of non-bailable warrants.

8. This Report further recommended
that Form 45 in Schedule II of the Code be
amended suitably. Hence by the said Report
introduction
of
section
437-A
was
recommended for binding the accused
before the conclusion of the trial or disposal
of the appeal to ensure his appearance
before the higher Court. The Commission
suggested that such a bond remain in force
for a period of 12 months from the date of
judgement. It is therefore clear that section
437-A Cr.P.C. was not introduced to allow
the accused to be released prior to the
judgment in order to enable the accused to
do pairavi for filing an appeal before the
High Court, but in order to secure his
presence before the appellate Court by
threatening forfeiture of the bonds of the
accused and his sureties and penalty and
punishment under section 446 Cr.P.C. under
section 446 Cr.P.C. on account of nonappearance of the accused to the notice or
summons sent for appearance before the
superior Court which admits the appeal. If
the contention by the convict was accepted
in the event of conviction by the trial Court,
it would become extremely difficult to
secure his presence and and that would be
totally counter-productive to the objective
as explained in the Law Commission report.
If the interpretation suggested by the
convict is accepted then a long winding
procedure for securing the presence of the
accused would be required not only in the
cases of acquittal of accused, but also in
cases of convicted accused who presently
prefer appeals from jail.

9. This interpretation would also run
counter to section 389 Cr.P.C which deals
with suspension of sentences, releasing
accused on bail after filing of their appeals.
Except in cases punsihable with offences up
to 3 years, or where the offence in which the
accused has been convicted is bailable and
the accused satisfies the convicting Court
that he intends to prefer an appeal, when he
may be allowed bail to give him sufficient
time to prefer an appeal. This benefit of
interim bail pending the filing of the
criminal appeal is not available to a prisoner
who has been awarded over 3 years
imprisonment by the trial Court.

10. A Division Bench of the Lucknow
Bench of this Court has passed an order on
24.8.2011 in Criminal Appeal No. 74 of
2001 (State of UP Vs. Gauri Shankar),
wherein it has interpreted section 437-A
Cr.P.C. and pointed out that the amendment
came into force from 21.12.2009. It has
directed that the Courts subordinate to the
High Court conducting trials should strictly
adhere to the provisions of section 437-A of
the Code at the time of conclusion of the
trial and get fresh bonds executed by the
accused and his sureties, so that in case an
order of acquittal is passed by the trial
Court, the case ends in acquittal and an
appeal against acquittal is admitted by the
High Court, the presence of the accused can
easily be secured as he and his sureties have
bound themselves to appear before the
appellate Court, i.e the High Court.
150 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

11. However, the registry has raised
the following eight points in its report for
treating this matter as a PIL:

"1. Whether the provisions of section
437A will apply in the High Court while
deciding
criminal
appeals
against
conviction, acquittal and for enhancement
of sentence awarded by the trial Court ?

2. The appropriate stage of the trial or
appeal, where the direction to execute bail
bonds with sureties is required under this
section ?

3. Whether the direction to execute
bail bonds with sureties will be in the cases
where accused is in judicial custody during
trial or pending appeal or where the
accused is on bail or in both conditions ?

4. Whether the execution of the bail
bonds with sureties must be required in all
the matters or in some specific or particular
matters ?

5. When appeal is pending in the
Hon'ble High Court, the bail bonds will be
executed/filed in the High Court or in the
trial Court with the directions of the High
Court ?

6. Whether the provisions of this
section contemplate for the release of
accused who is in judicial custody or is
merely for executing bail bonds only
without any release from judicial custody ?

7. The purpose and scope of the
execution of bail bonds with sureties under
this section ?

8.
Such
other
and
further
directions/guidelines which the Hon'ble
Court may deem appropriate in the interest
of justice ?"

12. We are of the view that the matter
needs to be examined at greater length. Our
prima facie view that we take tentatively is
that so far as the first point as to whether the
provisions of section 437-A will apply to
the High Court while deciding criminal
appeals against convictions, acquittals and
for enhancement of sentences awarded by
the trial Court, the said provisions may be
kept in abeyance as in the High Court there
is no system for appearance of the accused
at the time of regular hearing of the appeal
or during the course of pendency of the
appeals and the appeals are finally disposed
of with the aid of counsel. Also, there is
huge pendency of cases in the High Court
and there is a great difficulty in disposing of
the appeals with the aid of the counsel for
long periods of time. If the disposal of the
appeal were further stayed on the ground
that the presence of the accused and sureties
was needed at the time of final disposal of
the appeal in the High Court for executing
fresh bonds, the delay in disposal of the
appeal would be further compounded. This
would defeat the objective of introducing
section 437-A IPC as spelt out by the Law
Commission in its 154th Report, which was
to save time in disposal of the appeal, by
devising a straightforward procedure for
ensuring the presence of the accused and
thus shortening the time for disposal of the
admitted appeal.

13. Also this cumbersome procedure
requiring the accused to again appear along
with his sureties at the time of hearing of the
appeal would cast an undue cost burden on
the accused who would need to travel the
long distance to the High Court to furnish
the fresh bail bonds. There would be the
further problem as to the procedure by
1 All] Syed Arman V. State of U.P.

151
which the High Court Judges or the registry
would have to get the bail bonds filled up.
Further, local sureties would have to be
arranged and no infrastructure exists in the
High Court to verify the solvency of the
sureties.

14.
Furthermore, a
very low
percentage of cases decided by the High
Court either finally recording convictions or
acquittals or enhancement of sentences are
entertained in appeals before the Supreme
Court.

15. We, therefore, think that for that
small percentage of cases further delay in
disposal of the cases by the High Court for
the purpose of getting the bail bonds
executed afresh at the time of final hearing
would ultimately prove counter-productive.
Both the State and Central Legislature may,
therefore, consider excluding the High
Court from the requirement of getting fresh
bail bonds executed by the accused and his
sureties at the time of final hearing as
presently required under section 437-A
Cr.P.C.

16. We also feel that necessary
amendment needs to be made in Form 45 in
Schedule II, because in spite of the
recommendation of the Law Commission,
the said form for getting bail bonds filled up
have been made applicable only during the
process of investigation or trial, but the
word during 'appeal' has not been included
therein.

17. We also think that the period of
one year suggested by the Law Commission
after the date of judgement for which the
fresh bail bonds be executed before the trial
and appellate Courts should be considered
to be the appropriate period for which these
bail bonds should subsist, and that it has
inadvisably been reduced to six months
under section 437 A.

18. The State and Central legislatures
should also consider amending or utilizing
sections 441(3) or Explanation to section
446(1), Form 45 (2nd Schedule) or by
introducing a new provision which could
provide that the bail bonds which the
accused and his sureties fill up after the
accused is released on bail on the filing of
the appeal against conviction or acquittal,
that same bond could be made to operate for
a period of one year or six months after the
delivery of the judgment by the High Court,
till such time as fresh bonds are got
executed by the Supreme Court. That would
obviate the need for the High Court getting
fresh bonds executed by the accused and his
sureties at the time of final hearing of the
matter as has been provided under section
437 A., and in the event that an accused
does not turn up in response to the Supreme
Court's summons on leave to appeal being
granted, the bonds of the accused and his
sureties could be forfeited under section 446
Cr.P.C.
and
appropriate
penalty
or
punishment realized from the accused or his
sureties for the default.

19. However as pointed out earlier,
these are only our tentative suggestions, and
this Court would like to hear the Advocate
General, UP, the Additional Solicitor
General, Union of India, Principal Secretary
Law/ Legal Rembrancer, U.P., Secretary
Law, Union of India, or an officer not
below the rank of Under Secretary in the
department who is properly briefed in the
matter and who should be present on the
next listing to provide feedback to the Court
on its suggestions, so that this Court may
form a final opinion on the matter

20. List this case on 13.3.2012.
152 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

21.

Registry
is
directed
to
communicate this order to the Additional
Solicitor General of India, and Secretary
Law, Union of India, Advocate General,
U.P., Principal Secretary (Law), U.P. within
a week.

22. A copy of this order may also be
given to the learned AGA within a week for
compliance and for onward communication
to the learned Advocate General, UP and
Principal Secretary, Law, U.P.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.02.2012

BEFORE
THE HON'BLE RAKESH TIWARI,J.
THE HON'BLE DINESH GUPTA,J.

Special Appeal No. - 1180 of 2008

Manoj Kumar Sahu

 ...Petitioner
Versus
Union of India and others ...Respondents

Counsel for the Petitioner:
Sri Pranav Ojha

Counsel for the Respondents:
A.S.G.I.
Sri K.L. Grover
Sri Raj Kumari Devi
Sri I.S. Tomar
Sri Ramesh Singh

Industrial
Dispute
Act
1947-Section
2(5), 10-Refusal of reference by Central
Govt. on ground of delay-held not
proper-industrial
dispute
a
welfare
legislation for settlement of disputes
between employees and employer-only
the Labor Court or Industrial tribunal
Court can consider this aspect-Central
Govt. can not be allowed to stepped into
the shoes of Labor Court or Tribunalorder
not
sustainable-consequential
direction given.

Held: Para 10

As regards question of limitation is
concerned, it is for the Labour Court to
grant relief or not to grant relief taking
into consideration the question of delay.
The Industrial Disputes Act is a welfare
legislation for settlement of industrial
dispute between an employer and the
employee. Even an apprehended dispute
can be referred what to say of an
existing
dispute.
In
our
considered
opinion, suffice it to say that as the
Central Government has refused to refer
the dispute by adjudicating upon the
matter itself it has stepped into the
shoes of the Labour Court, or the
Industrial Tribunal or the appropriate
Board, we quash the impugned order
dated 18.6.2002 as well as the judgment
and order dated 25.7.2008 passed by the
learned Single Judge in Civil Misc. Writ
Petition No. 32844 of 2003, Manoj
Kumar Sahu versus Union of India and
others.
Case law discussed:
AIR 1970 SC-1205; AIR 1959 SC-1217

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

1. Heard Sri Pranav Ojha, learned
counsel for the appellant, Sri I.S. Tomar,
Advocate holding brief of Smt. Raj Kumari
Devi, learned counsel appearing for the
Union of India, respondent nos. 1 and 2, Sri
K.L. Grover, Advocate assisted by Sri
Ramesh
Singh,
learned
counsel
for
respondent nos. 3 and 4, learned Standing
counsel on behalf of respondent nos. 5 and
6 and perused the record.

2. This special appeal is preferred
against the judgment and order dated
25.7.2008 passed by the learned Single
Judge in Civil Misc. Writ Petition No.
32844 of 2003, Manoj Kumar Sahu versus
Union of India and others whereby the
aforesaid writ petition had been dismissed.