# (U/s 482 Cr.P.C.) Rahees alias Baura & Ors v. The State of Uttar Pradesh .Opp. Parties

- **Citation:** (2014) 2 ILRA 712
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-06-16
- **Case number:** Criminal Misc. Application No. 21567 of 2014
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-s-482-cr-p-c-rahees-alias-baura-ors-v-the-state-of-uttar-pradesh-opp-parties-42963
- **Pages:** 12

## Headnote

Cr. P.C.-Section-482-Practice of seeking
direction for disposal of bail application
on same day-inspite of clear authority of
full Bench consisting Seven Judges as
well as of the Apex Court-amounts to
grass abuse process of law and frivolous
litigation- in absence of pleadings to
attract
the
power
of Section
482exemplary cost-held must.

Held: Para-23
In view of the above and considering the
fact that despite the law laid down by a
Larger
Bench
of
this
Court
in
Smt.Amarawati and Anr. (supra), which has
been approved by Apex Court also in Lal
Kamlendra Pratap Singh (supra) and has
considered again in a recent decision in
Trilok Chand (supra), still applications
under Section 482 Cr.P.C., like present one,
are continuously being filed with a sole
request that bail application, which is yet to
be filed, should be directed to be decided on
the same day. In my view, it is nothing but
a gross abuse of process of law and
frivolous litigation, therefore, should attract
exemplary cost.

Case Law discussed:
2004(57) ALR 390; 2009(3) ADJ 322; 1992
Supp. (1) SCC 335; (2006) 7 SCC 296; (2008)
1 SCC 474; (2008)1 SCC 474; (2008) 8 SCC
781; (2009) 9 SCC 682; JT 2010 (6) SC 588;
2011(1) SCC 74; 2012 (2) SC 237; AIR 2007
SC 137; 1976 (1) SCC 671; 1994 Cri.L.J.
1981=1994(4) SCC 260; 2009(4)SCC 437;
2005(1) AWC 416; 2010 (4) SCC 358; Crl. M.P.
No. 25683 of 2013; 1986 Supp. SCC 719;
(2011) 8 SCC 249; AIR 2012 SC 2881; JT
2005(6) SC 486.

## Text

_Characters 0–39,438 of 40,050. This is a partial read: ask again with offset=39438 for what follows._

712 INDIAN LAW REPORTS ALLAHABAD SERIES
periodically uploaded on the website of
the State Pollution Control Board;

v) The Board shall also upload the
names of all the brick kilns which have
submitted applications for granting the No
Objection Certificates as also the names of
brick kilns which have been granted such
certificates so as to facilitate a verification of
whether any brick kiln in the State is being
operated without the grant of the requisite
permission or a No Objection Certificate of
the Board. Likewise, the refusal to grant a No
Objection
Certificate
should
also
be
periodically uploaded on the website of the
Board. The exercise of uploading the No
Objection Certificates which have already
been granted shall be completed within a
period of two months;

vi) The due exercise of statutory
powers by the Pollution Control Board
also requires the co-operation of the
District Administration and the law
enforcement machinery. The District
Administration and the law enforcement
machinery of the districts shall, therefore,
take all necessary steps to ensure due
compliance with the lawful instructions
and directives issued by the Board.

11. The writ petition is, accordingly,
disposed of. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.06.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Criminal Misc. Application No. 21567 of 2014
(U/s 482 Cr.P.C.)
Rahees alias Baura & Ors. ...Applicants
Versus
The State of Uttar Pradesh .Opp. Parties

Counsel for the Applicants:
Md. Abrar Khan, Sri Irfan U Huda

Counsel for the Opp. Party:
A.G.A.

Cr. P.C.-Section-482-Practice of seeking
direction for disposal of bail application
on same day-inspite of clear authority of
full Bench consisting Seven Judges as
well as of the Apex Court-amounts to
grass abuse process of law and frivolous
litigation- in absence of pleadings to
attract
the
power
of Section
482exemplary cost-held must.

Held: Para-23
In view of the above and considering the
fact that despite the law laid down by a
Larger
Bench
of
this
Court
in
Smt.Amarawati and Anr. (supra), which has
been approved by Apex Court also in Lal
Kamlendra Pratap Singh (supra) and has
considered again in a recent decision in
Trilok Chand (supra), still applications
under Section 482 Cr.P.C., like present one,
are continuously being filed with a sole
request that bail application, which is yet to
be filed, should be directed to be decided on
the same day. In my view, it is nothing but
a gross abuse of process of law and
frivolous litigation, therefore, should attract
exemplary cost.

Case Law discussed:
2004(57) ALR 390; 2009(3) ADJ 322; 1992
Supp. (1) SCC 335; (2006) 7 SCC 296; (2008)
1 SCC 474; (2008)1 SCC 474; (2008) 8 SCC
781; (2009) 9 SCC 682; JT 2010 (6) SC 588;
2011(1) SCC 74; 2012 (2) SC 237; AIR 2007
SC 137; 1976 (1) SCC 671; 1994 Cri.L.J.
1981=1994(4) SCC 260; 2009(4)SCC 437;
2005(1) AWC 416; 2010 (4) SCC 358; Crl. M.P.
No. 25683 of 2013; 1986 Supp. SCC 719;
(2011) 8 SCC 249; AIR 2012 SC 2881; JT
2005(6) SC 486.

(Delivered by Hon'ble Sudhir Agarwal, J.)
2 All] Rahees alias Baura & Ors. Vs. The State Uttar Pradesh
713

1. This application under Section
482 of Code of Criminal Procedure, 1973
(hereinafter referred to as "Cr.P.C.") has
been preferred with a sole prayer that
Courts below be directed to consider bail
application of applicants, on the same
day, pursuant to first information report
dated 28.4.2014 (Case Crime No.408 of
2014) under Section 147, 307, 120-B
I.P.C.) registered at P.S. Chakeri, District
Kanpur Nagar, in the light of decision of
this Court in Smt.Amarawati and Anr. Vs.
State of U.P., 2004 (57) ALR 390 as
approved
by
Apex
Court
in
Lal
Kamlendra Pratap Singh Vs. State of
U.P., 2009 (3) ADJ 322.

2. I am required to consider whether
such an application under Section 482
Cr.P.C. with the prayer, as aforesaid, is
entertainable. The scope of Section 482
Cr.P.C., as is evident from a bare reading
of aforesaid provision, can be culled out
from the provision itself, which reads as
under:

"482. Saving of inherent powers of
High Court.- Nothing in this Code shall
be deemed to limit or affect the inherent
powers of the High Court to make such
orders as may be necessary to give effect
to any order under this Code, or to
prevent abuse of the process of any Court
or otherwise to secure the ends of justice."
(emphasis added)

3. The power under Section 482
Cr.P.C. is not to be exercised in a routine
manner, but it is for limited purposes,
namely, to give effect to any order under
the Code, or to prevent abuse of process
of any Court or otherwise to secure ends
of justice. Time and again, Supreme Court
and various High Courts, including ours
one, have reminded when exercise of
power under Section 482 Cr.P.C. would
be justified, which cannot be placed in
straight jacket formula, but one thing is
very clear that it should not preampt a
trial and cannot be used in a routine
manner so as to cut short the entire
process of trial before the Courts below. If
from a bare perusal of first information
report or complaint, it is evident that it
does not disclose any offence at all or it is
frivolous, collusive or oppressive on the
face of it, the Court may exercise its
inherent power under Section 482 Cr.P.C.
but it should be exercised sparingly. This
will not include as to whether prosecution
is likely to establish its case or not,
whether the evidence in question is
reliable or not or whether on a reasonable
appreciation of it, accusation would not
be sustained, or the other circumstances,
which would not justify exercise of
jurisdiction under Section 482 Cr.P.C. I
need not go into various aspects in detail
but it would be suffice to refer a few
recent authorities dealing all these matters
in detail, namely, State of Haryana and
others Vs. Ch. Bhajan Lal and others
1992 Supp (1) SCC 335, Popular Muthiah
Vs. State represented by Inspector of
Police (2006) 7 SCC 296, Hamida vs.
Rashid @ Rasheed and Ors. (2008) 1
SCC 474, Dr. Monica Kumar and Anr. vs.
State of U.P. and Ors. (2008) 8 SCC 781,
M.N. Ojha and Ors. Vs. Alok Kumar
Srivastav and Anr. (2009) 9 SCC 682,
State of A.P. vs. Gourishetty Mahesh and
Ors. JT 2010 (6) SC 588 and Iridium
India
Telecom
Ltd.
Vs.
Motorola
Incorporated and Ors. 2011 (1) SCC 74.

4. In Lee Kun Hee and others Vs.
State of U.P. and others JT 2012 (2) SC
237, it was reiterated that Court in
exercise of its jurisdiction under Section
482 Cr.P.C. cannot go into the truth or
714 INDIAN LAW REPORTS ALLAHABAD SERIES
otherwise
of
the
allegations
and
appreciate evidence, if any, available on
record. Interference would be justified
only when a clear case of such
interference is made out. Frequent and
uncalled
interference
even
at
the
preliminary stage by High Court may
result in causing obstruction in the
progress of inquiry in a criminal case
which may not be in public interest. It,
however, may not be doubted, if on the
face of it, either from the first information
report or complaint, it is evident that
allegation are so absurd and inherently
improbable on the basis of which no fairminded and informed observer can ever
reach a just and proper conclusion as to
the existence of sufficient grounds for
proceeding, in such cases refusal to
exercise jurisdiction may equally result in
injustice, more particularly, in cases,
where the complainant sets the criminal
law in motion with a view to exert
pressure and harass the persons arrayed as
accused in the complaint.

5. In the present case, fortunately
and interestingly it is not the allegation of
applicants
that
there
is
any
noncompliance of order passed by Court
under Cr.P.C. or that there is any abuse of
process on the part of Court or that there
is any failure or travesty of justice on the
part of Court below. In fact, applicants
though have stated in para 11 of
application that they are ready to
surrender and apply for bail but it is
admitted by learned counsel for the
applicants
that
till
date
no
such
application has seen the light of the day.
This Court does not know whether such
an application would actually be filed or
not. But what applicants require from this
Court, to do, is that an application, which
has yet to see the light of the day, should
be directed to be decided by Court below
and that too, on the "same day" so as to
command the Court below to dispose of
an application on the day it is presented
before it, without exercising its discretion,
which has been permitted by law by
conferring a discretion upon it, looking to
the facts and circumstances of the
particular case.

6. The seven Judges decision of this
Court in Smt.Amarawati and Anr. (supra)
while answering the question referred to
it, in para 47 of the judgment itself has
said:

"The High Court should ordinarily
not direct any Subordinate Court to decide
the bail application the same day, as that
would be interfering with the judicial
discretion of the Court hearing the bail
application." (emphasis added)

7. Having answered this very
question, as above, this Court has further
explained the distinction in the matter of
procedure
while
considering
bail
application under Section 437 and 439
Cr.P.C. and made certain observations in
respect thereto, but the fact remains that a
direction by this Court in routine manner
for considering bail application on the
same day has not been found to be
consistent with the scheme of the statute.
This decision having been rendered by
seven Judges Bench of this Court is
binding upon this Court and I find no
reason not to follow the aforesaid dictum.

8. It is true that this Court has used
the word "ordinarily" but then in order to
exclude this dictum and to make a case
exceptional, background facts have to be
pleaded, in the application. Without being
guilty of reading a judgment as statute,
2 All] Rahees alias Baura & Ors. Vs. The State Uttar Pradesh
715
still this Court cannot read the dictum laid
down by Larger Bench in Smt. Amarawati
and Anr. (supra) in a manner so as to render
the dictum laid down therein frustrated or
become
meaningless
for
all
practical
purposes. The expression "ordinarily" may
mean "normally". The expression must be
understood in the context in which it has been
used. When in a common parlance,
expression "ordinarily" is used, there may be
an option. There may be cases where an
exception can be made out. (see State of
Andhra Pradesh Vs. V.Saram Rao & Ors.,
AIR 2007 SC 137)

9. In Jasbhai Motibhai Desai vs.
Roshan Kumar, Haji Bashir Ahmed and
Ors., 1976 (1) SCC 671, the Court said :

"The
expression
"ordinarily"
indicates that this is not a cast-iron rule. It
is flexible enough to take in those cases
where the applicant has been prejudicially
affected by an act or omission of an
authority..."

10. Having gone through the entire
application, and, as also admitted by learned
counsel for the applicants, there is not even a
whisper in the entire application so as to claim
that any extra or exceptional circumstances
exist so as to take out the present application
from the law "ordinarily" applicable in such
matter, as held in Smt.Amarawati and Anr.
(supra). In paras 2, 3 and 4, general
description about relief, for which application
is being filed and the factum about registration
of FIR are mentioned. Then paras 5 to 10
contain reasons stated by applicants, on their
own, for justifying grant of bail and those
reasons are:

(i) The applicants are innocent and
law abiding persons falsely implicated
due to enmity;

(ii) No weapon used is mentioned in
FIR;

(iii) Due to enmity, Section 307 has
been included in FIR though no case
thereunder is made out;

(iv) Medical examination has been
got conducted in a private hospital and
injury report is manipulated;

(v) There is no serious injury; and

(vi) The applicants are not previously
convicted.

11. These are the averments, which
normally have to be considered by
concerned Court while deliberating upon
application of an accused to consider
whether he should be granted bail or not.

12. Besides above, there is no
averment/pleading so as to attract Section
482 Cr.P.C. in the case in hand.

13. Then learned counsel for the
applicants stated that everyday, hundreds
of cases are being filed under Section 482
Cr.P.C. with the sole relief that bail
application should be considered on the
same day and orders are being passed by
this Court, therefore, the same order
should be passed in this Court also. Some
of such orders have been placed before
this Court. However, I do not find
consideration of any principle of law so as
to pass an order, which apparently does
not come within the precinct of Section
482 Cr.P.C. and that too after a
categorical declaration of law by seven
Judge
Bench
of
this
Court
in
Smt.Amarawati and Anr. (supra), as
approved
by
Apex
Court
in
Lal
Kamlendra Pratap Singh (supra).

14. Even otherwise, I find that this
aspect has been considered by this Court
in
Application
under
Section
482
716 INDIAN LAW REPORTS ALLAHABAD SERIES
No.19926 of 2013 (Trilok Chand Vs.
State of U.P. & Anr.) decided on
19.6.2013. I find it useful to reproduce
substantial part of the judgment on this
aspect from paras 5 to 23, which read as
under:

"5. The learned counsel for applicant
then submitted that applicant may be
allowed some time to surrender and a
direction be issued to court concerned to
consider his bail application on the same
day and also to follow the law laid down
in Joginder Kumar Vs. State of U.P.
1994Cri.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. He also requested that till then
arrest of applicant be stayed and placed
certain orders of this Court wherein such
directions have been issued. He pointed
out that hundreds and thousands such
orders have been passed by this Court
and, therefore, following the principle of
parity similar direction must be issued in
this case also.

6. 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
have 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.

7. 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.

8. 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.

9. I may illustrate on this aspect by
looking into the aforesaid decisions in
2 All] Rahees alias Baura & Ors. Vs. The State Uttar Pradesh
717
detail, which the learned counsel or
applicant 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-applicant when he would be
presenting his case before court below.

10. 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.

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.

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 petitioner
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.

13. 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
718 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

14. 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.

15. 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.

16. 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,
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 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.

17. 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.
2 All] Rahees alias Baura & Ors. Vs. The State Uttar Pradesh
719

18. 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
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 nonapplication 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.

19. 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.

20. 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.

21. It is true, that, several orders
placed before this court, show that
directions as
requested
by
accused
applicant 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
720 INDIAN LAW REPORTS ALLAHABAD SERIES
down when an issue is raised, argued and
decided. In none of the orders placed
before 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.
These orders, therefore, do not constitute
a precedent so as to have a binding effect
under the law of precedent.

22. Lastly it is contended that atleast
the court below be directed to consider
the bail application of accused applicant
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 his
part.

23. 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 datas from concerned
district judgeship(s).

15. Learned counsel for the
applicants, despite repeated query, could
not address this Court to substantiate upon
any aspect of the matter so as to persuade
this Court to take a different view or to
distinguish the aforesaid judgment, for the
purpose of present case. I, therefore, find
no reason but to follow the aforesaid
dictum in the case in hand also.

16. It is really surprising that an
application under Section 482 Cr.P.C. is
being
filed
though
there
is
no
infringement of any right or procedural
protection available to the accused, in any
manner, so as to justify exercise of power
2 All] Rahees alias Baura & Ors. Vs. The State Uttar Pradesh
721
under Section 482 Cr.P.C., yet precious
time of this Court is sought to be
consumed for obtaining an order directing
the
Court
below
to
consider
bail
application, which is yet to be filed, on
the "same day", despite law otherwise
declared by this Court in Smt.Amarawati
and Anr. (supra) holding that High Court
should
not
"ordinarily"
direct
any
subordinate
Court
to
decide
bail
application on the same day as that would
be interfering with judicial discretion of
this Court hearing bail application.

17. This law was laid down as back
as
in
2004
and
since
applicants
themselves have required the Court below
to consider the law laid down therein, it is
evident that applicants are well aware of
aforesaid decision, yet have not cared to
avoid frivolous case before this Court
seeking a relief, which has been held
inapplicable in the aforesaid decision.
There is no factual averment and
foundation laid down in the entire
application to attract any part of Section
482 Cr.P.C. in the case in hand. In my
view, such an application should be
treated a mere judicial adventure on the
part of applicants to obtain an order,
which according to applicants, is an
innocuous order though not; or it should
be taken as a gross abuse of process of
law. I am inclined to follow the later
view.

18. This Court cannot be oblivious
of the fact that it is already reeling under
extreme
pressure
of
extra
ordinary
pendency of cases, for one or the other
reasons, causing huge delay in disposal of
cases. Everyday, on various platforms,
people cry of denial of justice. They are
frequently reminding us that "justice
delayed is justice denied" but on account
of massive litigation exodus, Courts are
under mounting pressure of huge number
of cases, pending. Lack of infrastructure
and other supporting establishment, is
another hurdle in speedy disposal of
cases. It is virtually a day dream to think
of an early disposal of a case yet a few
litigants, assisted by officers of this Court,
do not hesitate in filing frivolous cases
adding to mounting arrears. This is high
time when such frivolous and uncalled for
litigation must be endeavoured to be
curtailed by taking hard steps. This Court
should not show its misplaced sympathy
to such persons, who indulge in filing
frivolous cases before this Court so as to
consume a sufficient time in those
matters, depriving Court's precious time
to be utilized in other substantial issues. It
is not that the state of law was/is not clear,
inasmuch as, Smt.Amarawati's judgment
came in 2004, approved by Apex Court in
2009, is further reiterated in Trilok Chand
(supra), still practice of filing cases with
the only prayer that bail application,
which is yet to be filed, should be directed
to be decided by Courts below on the
same day, is continuing. Here, it is a fit
case, which warrants not only rejection of
this application but with exemplary cost.

19. Stressing upon the ways to
discourage
filing
of
vexatious
and
frivolous cases against all kinds of orders
or
at
every
stage
of
proceedings,
irrespective
of
the
fact
whether
application like the present one would be
permissible in law or not, Apex Court in
the context of practice of filing SLPs
against all kinds of orders of High Court
or other authorities, came heavily in
Mathai @ Joby vs. George and Anr, 2010
(4) SCC 358 and said that if all such
sundry kinds of cases are allowed, the
Court will soon be flooded with a huge
722 INDIAN LAW REPORTS ALLAHABAD SERIES
amount of backlog and it will not be able
to deal with important questions relating
to the Constitution or the law or where
grave injustice has been done. The Court
has limited time at its disposal and the
Judges are struggling with unbearable
burden with zeal to dispense justice to
whom it is highly needed yet being
obstructed
by
such
frivolous
and
vexatious matters, a trend is developing to
bring all kinds of trivial and flimsy
matters to Court causing wastage of not
only public money, but also precious time
of the Court, which can be used for other
substantial matters.

20. The Apex Court in Crl. M.P.
No.25683 of 2013 in Special Leave
Petition (Crl.) No. 2448 of 2014 (Phool
Chandra & Anr. Vs. State of U.P.),
decided on 10.3.2014, observed:

"..the time of the Court which is
becoming acutely precious because of the
piling arrears has to be wasted on hearing such
matters. There is an urgent need to put a check
on such frivolous litigation. Perhaps many
such cases can be avoided if learned Counsel
who are officers of the court and who are
expected to assist the court tender proper
advice to their clients. The Bar has to realise
that the great burden upon the Bench of
dispensing justice imposes a simultaneous
duty upon them to share this burden and it is
their duty to see that the burden should not
needlessly be made unbearable. The Judges of
this Nation are struggling bravely against the
odds to tackle the problem of dispensing
quick justice. But, without the cooperation of
the gentlemen of the Bar, nothing can be
done."

21. The Court in Phool Chandra &
Anr. (supra) referring to earlier decisions
in Varinderpal Singh Vs. Hon'ble Justice
M.R. Sharma and Ors., 1986 Supp SCC
719; Ramrameshwari Devi and Ors. Vs.
Nirmala Devi and Ors., (2011) 8 SCC
249; and Gurgaon Gramin Bank Vs.
Khazani and Anr., AIR 2012 SC 2881 has
said:

"It is high time that the Courts should
come down heavily upon such frivolous
litigation and unless we ensure that the
wrongdoers are denied profit or undue
benefit from the frivolous litigation, it
would be difficult to control frivolous and
uncalled for litigation. In order to curb
such kind of litigation, the courts have to
ensure that there is no incentive or motive
which can be ensured by imposing
exemplary costs upon the parties as well
as on learned Counsel who act in an
irresponsible manner."

22. I may also repeat hereat
observation made by the Court in Salem
Advocate Bar Association, Tamil Nadu
Vs. Union of India, JT 2005 (6) SC 486
stating that award of costs must be treated
generally as mandatory. It is the liberal
attitude of the Courts in not awarding
costs which has led to frivolous points or
litigation before the Courts. Costs should
invariably follow the event and reasons
must be assigned for not awarding costs.

23. In view of the above and
considering the fact that despite the law
laid down by a Larger Bench of this Court
in Smt.Amarawati and Anr. (supra),
which has been approved by Apex Court
also in Lal Kamlendra Pratap Singh
(supra) and has considered again in a
recent decision in Trilok Chand (supra),
still applications under Section 482
Cr.P.C., like present one, are continuously
being filed with a sole request that bail
application, which is yet to be filed,
2 All] Ravi Kumar Agarwal & Anr. Vs. State of U.P. & Anr.
723
should be directed to be decided on the
same day. In my view, it is nothing but a
gross abuse of process of law and
frivolous litigation, therefore, should
attract exemplary cost.

24. Learned A.G.A. informs this
Court that everyday, dozens of such
applications with similar request are being
filed consuming huge time of this Court
in disposal of such applications, which
orders in fact are nothing but create an
undue pressure upon subordinate judiciary
also so as to protect itself from a situation
of likely disobedience of this Court's
orders though, as a matter of fact, neither
such direction in view of Larger Bench
judgment is permissible nor there is any
occasion for such issuance.

25. This Court cannot make any
comment on such statement of learned
AGA but only takes notice of the fact that
a large number of cases with similar
request
are
being
filed
everyday
consuming enough time of this Court in
disposal of such applications. This is high
time now that legal aspect of the matter
should be reiterated again with a hope that
such applications in future would be
discouraged to be filed unless and until a
case on the basis of pleadings, facts and
material is made out.

26. Looking to the discussion, made
above, the application has to be dismissed
with cost.

27. The application is accordingly
dismissed with cost of Rs.25,000/-, which
shall be paid by applicants in Government
Treasury within a month from today, failing
which, it would be open to the State to
realize the same as arrears of land revenue.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.06.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Criminal Misc. Application No. 21577 of 2014
(U/s 482 Cr.P.C.)

Ravi Kumar Agarwal & Anr. ...Applicants
Versus
State of U.P. & Anr.. ...Opp. Parties

Counsel for the Petitioners:
Sri K.K. Dwivedi

Counsel for the Respondents:
A.G.A.

Cr.P.C.-Section
482-Applicant
seeking
direction for expeditious disposal of bail
application-shocking state of affairs on
part of Court below-inspite of direction
of full Bench as well as Hon'ble Supreme
Court-without assigning any reasonadjournment granted either on Advocate
strike or at request of prosecutionpresiding judge-failed to discharge its
duty-direction issued to decide bail
application on merit on next date fixedapplication allowed with cost of Rs.
10,000/-.