# (U/s 482 CR.P.C.) Jai Prakash Maurya v. State of U.P. & Anr

- **Citation:** (2014) 3 ILRA 1497
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-11-13
- **Case number:** Criminal Misc. Application No. 45679 of 2014
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-s-482-cr-p-c-jai-prakash-maurya-v-state-of-u-p-anr-43054
- **Pages:** 7

## Headnote

Cr.P.C.-Section-482-Seeking direction for
consideration of bail application on same
day-reliance placed upon full Bench as
well as the judgment of Apex Court-held
direction issued by Apex Court binding
upon all Courts, under Article 145 of
Constitution-no further direction by High
Court required-otherwise would be great
travesty
of
justice-without
giving
privileges to the trail court to consider
the bail on merit-in absence of specific
pleadings about violation of Art. 21-no
such
direction
required-application
rejected.
Held: Para-25
The applicant has yet to surrender. He
has yet to move an application before
concerned court. Therefore, to issue a
direction for something which is yet to
see light of the day, is nothing but
requiring this Court to pass an order in
anticipation of certain facts which are
not pleaded or placed before this Court
by means of pleading in application
concerned. In other words the applicant
is seeking relief on imaginary basis.
Unless a case is made out for violation of
fundamental right under Article 21 of the
Constitution by specifically pleading all
relevant facts,
in my view, no such
direction would be justified to issue as it
amounts to issuing futile direction by
this Court and that too on superfluous
and
imaginary
basis.
The
aforesaid
decisions, therefore, as cited at the bar
in support of submission by learned
counsel for the applicant, do not help
him in any manner.
Case Law discussed:
Cr.L.J. 1981=1994 (4) SCC 260; 2009(4) SCC
437; 2005(1) AWC 416; 1997 (1) SCC 416; JT
1998 (2) SC 658; 2011 (1) SCC 694.

## Text

3 All].
 Jai Prakash Maurya Vs. State of U.P. & Anr.
1497
from the open market by advertising in
two widely circulated newspapers (one in
vernacular language) over which the
Regional Rural Bank have to fill up the
vacancies
including
posting
the
advertisement on the official website.
27. In future vacancy, all Regional
Rural Banks shall invite applications for
posts as mentioned herein above.
28. Copy of the order shall be sent to
Ministry of Finance (Department of
Financial Services) New Delhi by the
Registry for information /circulation and
compliance.
29. Subject to the above, the writ
petition is allowed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.11.2014
BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
Criminal Misc. Application No. 45679 of
2014
(U/s 482 CR.P.C.)
Jai Prakash Maurya
...Applicant
Versus
State of U.P. & Anr.
...Opp. Parties
Counsel for the Applicant:
Sri Ashok Kumar Tripathi
Counsel for the Opp. Parties:
A.G.A.
Cr.P.C.-Section-482-Seeking direction for
consideration of bail application on same
day-reliance placed upon full Bench as
well as the judgment of Apex Court-held
direction issued by Apex Court binding
upon all Courts, under Article 145 of
Constitution-no further direction by High
Court required-otherwise would be great
travesty
of
justice-without
giving
privileges to the trail court to consider
the bail on merit-in absence of specific
pleadings about violation of Art. 21-no
such
direction
required-application
rejected.
Held: Para-25
The applicant has yet to surrender. He
has yet to move an application before
concerned court. Therefore, to issue a
direction for something which is yet to
see light of the day, is nothing but
requiring this Court to pass an order in
anticipation of certain facts which are
not pleaded or placed before this Court
by means of pleading in application
concerned. In other words the applicant
is seeking relief on imaginary basis.
Unless a case is made out for violation of
fundamental right under Article 21 of the
Constitution by specifically pleading all
relevant facts,
in my view, no such
direction would be justified to issue as it
amounts to issuing futile direction by
this Court and that too on superfluous
and
imaginary
basis.
The
aforesaid
decisions, therefore, as cited at the bar
in support of submission by learned
counsel for the applicant, do not help
him in any manner.
Case Law discussed:
Cr.L.J. 1981=1994 (4) SCC 260; 2009(4) SCC
437; 2005(1) AWC 416; 1997 (1) SCC 416; JT
1998 (2) SC 658; 2011 (1) SCC 694.
(Delivered by Hon'ble Sudhir Agarwal, J.)
1. This application under Section
482 Cr.P.C. is filed with a prayer to set
aside
Non
Bailable
Warrant
dated
27.9.2014 issued against applicant in
Complaint Case No. 964 of 2014 now
Complaint Case No. 3257 of 2012. It has
been further prayed that a direction be
issued to court concerned to consider their
bail application of applicant on the same
day in Case Crime No. 230 of 2003 under
1498
 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 323, 504 and 494 IPC, Police
Station Badagaon, district Varanasi in
view of the law laid down in Joginder
Kumar 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 Smt. Amarawati and
another Vs. State of U.P., 2005(1) AWC
416.
2. From the order sheet, it is evident
that
consistently
the
applicant
has
remained absent, most of the time, and in
these circumstances, the court below was
fully justified in issuing now bailable
warrant. I do not find any illegality
therein
and
therefore
there
is
no
justification to interfere.
3. Now taking the submission that
the bail application of the applicant
should be considered on the same date I
propose to examine on this aspect of the
matter with deeper scrutiny. It is not the
case of applicant that he has already
surrendered or that though he has
attempted to surrender but there is any
illegal, unauthorised obstruction created
by respondents in such endeavour of
applicant. 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 allegations have been made
that the court concerned is acting contrary
to law or the Presiding Officer has any
kind of bias etc. so as to pass an order
without looking into the matter in
accordance with law.
4. The law laid down by Apex Court
by
virtue
of
Article
145
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 courts below 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, before a court, they
would not be looked into and appreciated
by such court. 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
application, is nothing but doubting the
capability, approach and efficiency of
subordinate courts, which is not in the
larger interest of institution as such.
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.
5. 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.
6. I may illustrate on this aspect by
looking into the aforesaid decisions in
detail, which the applicants intended to be
considered by courts below, under a
direction of this Court, though I am not
sure whether it would actually be cited by
counsel of accused applicants when they
3 All].
 Jai Prakash Maurya Vs. State of U.P. & Anr.
1499
would be presenting their case before
court below.
7. In Joginder Kumar (supra), a
habeas corpus writ petition under Article
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.
8. 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.
9. Apparently the aforesaid decision
also strictly has no application to the
nature of dispute involved in this
application as also the stage at which
question, as to whether the applicants
should be detained in jail or not, has to be
considered. Here it is not the case of
exercise of power by police but the
judicial discretion of Court and thereto
nothing should be anticipated unless an
appropriate order is passed by court
concerned.
10. 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
1500
 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
11. 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 police authorities and an incumbent
was arrested having been found prima
facie
guilty
of
commission
of
a
cognizable offence.
12. In respect to circumstances
where a bail application has to be
considered
by
courts,
the
relevant
considerations have been laid down in
catena of authorities which are well
established and need not to be added
hereat. They have to be followed.
13. In Lal Kamlendra Pratap Singh
(supra) the matter came to be considered
before the Court for quashing of a first
information
report.
Here
also
apprehending
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, applicants 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
and
another
(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.
14. I find that in an earlier case of
Som
Mittal
Vs.
Government
of
Karnataka, JT 2008(2) SC 41, which was
a matter relating to anticipatory bail, one
of the two Judges constituting Bench
(Hon'ble M. Katju, J.) has referred to and
approved seven Judges decision of this
Court in Smt. Amarawati and another
(supra) and observed that non availability
of any provision relating to anticipatory
bail
in
State
of
U.P.
is
causing
extraordinary burden on the High Court
and a recommendation was made for
reviving such a provision.
15. However, in none of the cases
above, it has been said by Supreme Court
or this Court, at any point of time, that
once a charge sheet is submitted, still an
3 All].
 Jai Prakash Maurya Vs. State of U.P. & Anr.
1501
accused is entitled to be released on bail,
on
just
asking,
and
the
courts
below/concerned Magistrate should not
apply its mind to the relevant facts and
circumstances
which
would
justify
whether the concerned person should be
granted bail or should be detained in
judicial custody. The decision in Smt.
Amarawati
and
another
(supra)
says
otherwise. That being so, expecting this
Court to simply stay arrest while directing or
permitting the person concerned to approach
the court below by filing a bail application
and without applying its mind to the relevant
facts and circumstances in which bail can be
granted, would clearly amount to travesty of
justice. It would be an order not in
accordance with law and without considering
the relevant facts and circumstances. Such an
order would clearly travel in the realm of
non-application of mind. I am afraid, this
Court cannot pass such an order particularly
when it is declining to entertain an
application under Section 482 Cr.P.C. being
satisfied that a prima facie case of
commission of cognizable offence has been
found against accused resulting in filing of a
charge sheet and now the matter must be
examined by concerned Magistrate/court
regarding bail etc. after considering the
relevant facts and circumstances.
16. I may refer here one more
aspect. The
manner
in
which
the
applicant-accused pray that his arrest
should be stayed, at the best can be placed
at par with anticipatory or interim bail. In
fact while granting an order of stay of
arrest the court surpasses even those
considerations which it is bound to take
into account, when pass an order granting
anticipatory bail.
17. Now it is well settled that even
an order of anticipatory bail cannot be
passed on mere asking but has to satisfy
consideration of various relevant aspects
in this regard. Some of these aspects have
been considered recently by Apex Court
in Siddharam Satlingappa Mhetre v. State
of Maharashtra and others, 2011(1) SCC
694 and in paras 122 to 138 the relevant
facts and circumstances which must be
considered by the Court before passing an
order of anticipatory bail have been
noticed
in
detail.
Though
these
observations are not exhaustive but the
aforesaid decision clearly lays down a law
that even in passing an order on
anticipatory bail, a bald, unreasoned and
non-speaking order staying arrest or
granting bail should not be passed as that
would amount to a material illegality and
irregularity
and
failure
to
exercise
jurisdiction
validly
if
relevant
circumstances before passing such orders
are not taken into account, weighed and
assessed, and thereafter a decision is
taken whether such an order would be
justified or not.
18. It is true, that, several orders of
this Court, show that directions as
requested by accused applicants to be
issued to the court below, have been
issued and in some of the cases arrest has
also been stayed but unfortunately I do
not find that before such directions the
relevant
law
has
been
considered,
discussed and be cited. The ultimate
direction or action of Court do not
constitute a binding precedent. What is
binding precedent is the ratio, i.e., the law
laid down by Court. A law is laid down
when an issue is raised, argued and
decided. In none of the orders of this
Court, I find that any issue, whether these
directions, as sought for, should be or can
be issued or are justified to be issued,
considered and decided. The orders,
1502
 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, do not constitute a precedent so
as to have a binding effect under the law
of precedent.
19. Lastly it is said that atleast the
court below be directed to consider the
bail application of accused applicants on
the same day when it is presented. It is
pointed out that in many of the cases the
concerned courts/Magistrates either grant
interim bail or sent accused in jail by
deferring any order on the bail application
due to paucity of time and that is how the
fundamental right of life and liberty of
accused is jeopardised for no fault on
their part.
20. What is said, if correct, is
admittedly something serious and puts a
blot on the system of administration of
justice. If a person who otherwise does
not deserve bail for one or the other
reasons is allowed interim bail, only for
the
reason
that
concerned
Magistrate/court finds no time to apply
mind on his application, it would not only
be travesty of justice but would be highly
dangerous for the society at large.
Similarly, if a person is sent to jail,
curtailing his liberty, only for the reason
that concerned Magistrate/court could not
find time to apply mind on his bail
application, again this would be a case of
grave injustice,
besides violation of
fundamental rights of a citizen. Both the
situations cannot be appreciated. In the
circumstances, I would like to hold that if
a bail application is moved in time, with
due notice to other side, if so required in
law, the Magistrate/court concerned must
consider
the
relevant
facts
and
circumstances before passing any order
either way and in case the number of
applications are such so as not to make it
possible to be attended within the court
timing, the District Judge concerned shall
look into and distribute the work in such
manner so that applications are attended
by competent courts without any undue
delay and no person is sent to jail or
released, by way of interim bail, without
application
of
mind
by
concerned
court/Magistrate. If necessary the Court
may attend such applications irrespective
of the fact that court timing is over.
Upholding
Constitutional
rights
and
people's freedom vis-a-vis the safety,
protection and interest of society is of
prime importance and it cannot be
compromised in the name of court timings
or something for which the parties are not
responsible and accountable. If necessary,
on this aspect the matter may also be
examined on administrative side by this
Court after having relevant information
with detail facts and detas from concerned
district judgeship(s).
21. Learned counsel for the
applicant then placed before this Court a
judgment dated 03.07.2014 passed in
Application under Section 482 No. 21679
of 2014, Munawwar and nine others Vs.
State of U.P. and another and claimed that
therein this Court has passed an order for
taking up the bail application on the same
day and the same should be followed by
this Court also on the principle of parity.
He also placed another order dated
25.09.2014 passed in Application under
Section 482 No. 42289 of 2014, Ram
Kesh Rao Vs. State of U.P. to press his
submission.
22. The order in Ram Kesh Rao
(supra), reads as under:
"Heard learned counsel for the
applicant and learned A.G.A. for the
State.
3 All]. Sheelu & Ors. Vs. The State of U.P. & Anr.
1503
The applicant, through the present
application under section 482 Cr.P.C. has
invoked the inherent jurisdiction of this Court
with a prayer that his bail application in
complaint case No. 490 of 2014 under Section
406 IPC police station Dharamsinghwa
district Sant Kabir Nagar be ordered to be
considered expeditiously, if possible on the
same day by the court below.
In view of the order passed in
Application U/S 482 No. 21679 of 2014 dated
03.7.2014, no further direction is required to
be passed in the present application.
Accordingly, present application is disposed
of."
23.
It is thus evident that nothing has
been said in Ram Kesh Rao (supra) which
may constitute any binding precedent on this
Court. This order has been passed in the light
of this Court's order dated 03.07.2014 passed
in Munawwar (supra). I have carefully gone
through the aforesaid judgment wherein this
Court has taken the view that personal liberty
of the subject is of utmost importance and,
therefore, whenever a matter is brought to this
Court to show that there is any violation of
fundamental rights under Article 21 of the
Constitution, this Court will protect the person
from such violation being the guardian of
fundamental rights.
24.
The proposition in general is
unexceptional. It is the actual application of
proposition of law in individual case,
whether it applies or not. In order to apply
aforesaid dictum there has to be a factual
foundation laid down in a case demonstrating
that fundamental right of life and liberty
under Article 21 of the applicants are being
infringed by the police or anyone else. For
that purpose specific pleadings are needed. In
the present case there is no such pleading that
applicants have illegally been arrested or that
their fundamental rights under Article 21
have been violated due to their illegal arrest
and yet their bail application has not been
heard by the court below expeditiously or in
the manner as already directed by this Court
in various authorities, some of which have
already been referred hereinabove.
25. The applicant has yet to surrender.
He has yet to move an application before
concerned court. Therefore, to issue a
direction for something which is yet to see
light of the day, is nothing but requiring this
Court to pass an order in anticipation of
certain facts which are not pleaded or placed
before this Court by means of pleading in
application concerned. In other words the
applicant is seeking relief on imaginary basis.
Unless a case is made out for violation of
fundamental right under Article 21 of the
Constitution by specifically pleading all
relevant facts, in my view, no such direction
would be justified to issue as it amounts to
issuing futile direction by this Court and that
too on superfluous and imaginary basis. The
aforesaid decisions, therefore, as cited at the
bar in support of submission by learned
counsel for the applicant, do not help him in
any manner.
26. In the result, I do not find myself
satisfied to accede the request made in
this
application. The application is
accordingly dismissed.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.11.2014
BEFORE
THE HON'BLE AKHTAR HUSAIN KHAN, J.
Criminal Misc. Application No. 47107 of
2014
(u/s 482 CR.P.C)
Sheelu @ Jitendra Mishra & Ors.
Applicants