# Vijai Kumar Verma v. State of U.P. and others - **Citation:** (2002) 2 ILRA 575 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2002-07-29 - **Case number:** Criminal Misc. Writ Petition No. 915 of 2002 - **Bench:** M. Katju, K.N. Sinha - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijai-kumar-verma-v-state-of-u-p-and-others-39856 - **Pages:** 5 ## Headnote A.G.A. Recommendation to restore the provision of anticipatory bail under section 438 of Cr.P.C.- Thousands of writ petitions and section 482 Cr.P.C.- applications are being filed in this Court praying for stay of the petitioner's arrest- problem will be obviated by restoring the provision for anticipatory bail which was contained in Section 438 Cr.P.C. but was deleted in UP by section 9 of U.P. Act No. 16 of 1976 (held in para 17). We, therefore, make a strong recommendation to the U.P. Government to immediately issue an ordinance to restore the provision for anticipatory bail by repealing section 9 of U.P. Act No. 16 of 1976, and empowering the High Court as well as the Sessions Courts to grant anticipatory bail. http://www.allahabadhighcourt.nic.in INDIAN LAW REPORTS ALLAHABAD SERIES [2002 576 Case law Referred. AIR 1994 SC 1349, AIR 1997 SC 366, AIR 1980 SC 1632 ## Text http://www.allahabadhighcourt.nic.in 2 All] Vijai Kumar Verma V. State of U.P. and others 575 consideration or a sanctioned scheme is under implementation or where an appeal under Section 25 relating to an industrial company is pending adjudication. It was contended that the ban against maintainability of a suit for recovery of money would encompass prosecution proceedings also. Reliance was placed on the meaning of the word 'suit' as given in 'Bouvier's Law Dictionary' Repelling such contention the court observed that the word 'Suit' envisaged in Section 22 (1) cannot be stretched to criminal prosecutions. A Criminal prosecution is neither for recovery of money nor for enforcement of any security etc. Section 138 of the Act is a penal provision the commission of which offence entails a conviction and sentence on proof of the guilt in duly conducted criminal proceedings. Once the offence under Section 138 is completed, the prosecution proceedings can be initiated not for recovery of the amount covered by the cheque but for bringing the offender to penal liability. 10. In view of discussions made above, I would hold that even accepting the contention of the learned counsel for the petitioner that M/s Sterling Novelty Products is not a registered firm under the Partnership Act, yet the bar created by Section 69 of the said Act has no application for maintaining a criminal proceeding under Section 138 of the Act. In that view of the matter, no interference is called for in the criminal proceeding (case no.852/9 of 1999) pending against the petitioner in exercise of inherent power. 11. In the result, Criminal Misc. Application fails and the same is dismissed. 12. The court below is directed to take up expeditious hearing and dispose of the case within reasonable time preferably within a period of six months from date of receipt of this judgment. --------- ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 29.7.2002 BEFORE THE HON'BLE M. KATJU, J. THE HON'BLE K.N. SINHA, J. Criminal Misc. Writ Petition No. 915 of 2002 Vijai Kumar Verma ...Petitioner Versus State of U. P. and others ...Respondents Counsel for the Petitioner: Sri Madhur Prakash Sri S.P. Singh Amicus Curiae Counsel for the Respondents: A.G.A. Recommendation to restore the provision of anticipatory bail under section 438 of Cr.P.C.- Thousands of writ petitions and section 482 Cr.P.C.- applications are being filed in this Court praying for stay of the petitioner's arrest- problem will be obviated by restoring the provision for anticipatory bail which was contained in Section 438 Cr.P.C. but was deleted in UP by section 9 of U.P. Act No. 16 of 1976 (held in para 17). We, therefore, make a strong recommendation to the U.P. Government to immediately issue an ordinance to restore the provision for anticipatory bail by repealing section 9 of U.P. Act No. 16 of 1976, and empowering the High Court as well as the Sessions Courts to grant anticipatory bail. http://www.allahabadhighcourt.nic.in INDIAN LAW REPORTS ALLAHABAD SERIES [2002 576 Case law Referred. AIR 1994 SC 1349, AIR 1997 SC 366, AIR 1980 SC 1632 (Delivered by Hon'ble M. Katju, J.) 1. Learned Government counsel may file counter affidavit within a month. 2. Issue notice to respondent no. 4 returnable at an early date. 3. Until further order of this Court we stay the arrest of the petitioner in Case Crime No. 214 of 2001, Under Sections 409, 420, 468, 467 and 471 I.P.C. Police Station Sadar Bazar, district Mathura but the investigation may go on. 4. We have heard Sri S.P. Singh, General Secretary of the High Court Bar Association as Amicus Curiae, in this case. 5. The petitioner Vijay Kumar Verma is a Government servant posted in the U.P. Police Department as Sub Inspector (Ministerial)/ Head Clerk in the office of the Superintendent of Police, Hathras. By means of this writ petition the petitioner is challenging the impugned FIR filed against him. This F.I.R. states that certain appointment under Dying in Harness Rules was obtained by playing some fraud in which the petitioner was also involved. The petitioner claims that he is innocent and has been falsely implicated. The only allegation against him in the impugned FIR is that he did not make proper verification of the documents relating to the appointment made under the Dying in Harness Rules. 6. It has been held by the Supreme Court in Joginder Kumar Vs. State of U.P. and others AIR 1994 Supreme Court, 1349: "No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in Police lock up of a person can cause incalculable harm to the reputation and self esteem of a person. No arrest can be made in routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional right of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and reasonable belief both as to the persons' complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendation of the Police Commission merely reflects the constitutional concomitants of the fundamental right to person liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be a reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave station without permission would do." 7. Despite this categorical judgement of the Supreme Court it appears that the police is not at all http://www.allahabadhighcourt.nic.in 2 All] Vijai Kumar Verma V. State of U.P. and others 577 implementing it. What invariably happens is that whenever an FIR of a cognizable offence is lodged the police immediately goes to arrest the accused person. This is clear violation of the aforesaid judgement of the Supreme Court. 8. Thousand of writ petitions and section 482 Cr.P.C. applications are being filed in this court praying for stay of the petitioner's arrest. This is unnecessarily increasing the work load of this court and adding to the arrears. 9. In our opinion the problem will be obviated by restoring the provision for anticipatory bail which was contained in Section 438 Cr.P.C. but was deleted in U.P. Act 16 of 1976. 10. It is surprising that the provision for anticipatory bail should be deleted in this State although it exists in all other States in India, even in terrorist affected States. We do not understand why this provision should not exist in U.P. also. 11. As pointed out in Balchand Jain Vs. State of Madhya Pradesh, AIR 1977 Supreme Court, 366, the provision for anticipatory bail was included in the Cr.P.C. 1973 in pursuance of the Forty First Report of the Law Commission which observed: "The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody and remain in prison for some days and then apply for bail." 12. Thus the provision for anticipatory bail was introduced in the Cr.P.C. because it was realized by Parliament in its wisdom that false and frivolous case are often filed against some persons and such persons have to go to jail because even if the First Information Report is false and frivolous a person has to obtain bail, and for that he has to first surrender before the learned Magistrate, and his bail application is heard only after several days (usually a week or two) after giving notice to the State. During this period the applicant has to go to Jail. Hence even if such person subsequently obtains bail his reputation may be irreparably tarnished, as held by the Supreme Court in Joginder Kumar's case (supra). The reputation of a person is a valuable asset for him, just as in law the good will of a firm is an intangible asset. In the Gita Lord Kirshna said to Arjun. "LaHkkfor pkdhfrZ ej.kknfrfjP;rs" Which means " For a self respecting man , death is preferable to dishonour". Gita Chapter 2, Shlok 34 13. No doubt anticipatory bail is not to be granted as of course by the Court but only in accordance with the principles laid down by the Supreme Court in Gurbaksh Singh Vs. State of Pubjab AIR 1980 SC 1632. However, we are of the view that there must be a provision for http://www.allahabadhighcourt.nic.in INDIAN LAW REPORTS ALLAHABAD SERIES [2002 578 anticipatory bail in U.P. for the reason already mentioned above. 14. Experience has shown that the absence of the provision for anticipatory bail has been causing great injustice and hardship to the citizens of U.P. Often false First Information Reports are filed e.g. under Section 498- A I.P.C., section 3/4 Dowry Prohibition Act, etc. Often grandmothers, uncles, aunts, unmarried sisters etc. are implicated in such cases, even though they may have nothing to do with the offence. Some times unmarried girls have to go to jail, and this may affect their chances of marriage. As already observed by us above, this is in violation of the Supreme Court decision in Joginder Kumar's case (supra) and the difficulty can be overcome by restoring the provision for anticipatory bail. 15. Moreover this court is already overburdened with heavy arrears and over loaded with work. This load is increasing daily due to the absence of the provision for anticipatory bail. In the absence of the provision whenever an F.I.R. is filed the accused person files a writ petition or application under section 482 Cr.P.C. and this has resulted in an unmanageable burden on this Court. At present in the Allahabad High Court, one Division Bench is doing fresh and recent writ petition in which the FIR is challenged, and another Division Bench is doing similar writ petitions in old cases. Similarly, one Hon'ble Singh Judge is dealing with fresh and recent applications under section 482 Cr.P.C. and another Hon'ble Single Judges deals with similar old cases. Thus six Hon'ble Judges of this Court are presently tied up with such work. 16. This court had on several occasions requested the State Government to issue an Ordinance immediately to restore the provision for anticipatory bail, but all our requests seems to have fallen on deaf ears. It seems that there is an impression in some quarters that if the provision for anticipatory bail is restored crimes will increase. In our opinion this is a specious argument, since it has not made such difference to the crime position in the States where the provision for anticipatory bail exists. 17. We, therefore, make a strong recommendation to the U.P. Government to immediately issue an Ordinance to restore the provision for anticipatory bail by repealing section 9 of U.P. Act No. 16 of 1976, and empowering the High Court as well as the Sessions Courts to grant anticipatory bail. 18. The Registrar General of this Court shall send a copy of this order to the Chief Secretary, Principal Home Secretary and Principal Law Secretary, U.P. forthwith who are requested to urgently take up the matter and do the needful for issuing the ordinance as suggested above. 19. The General Secretary of the High Court Bar Association Sri S.P. Singh will also communicate this order to the appropriate authorities. 20. Let a copy of this order be given to Sri S.P. Singh, Secretary of High Court Bar Association free of costs within 24 hours. --------- http://www.allahabadhighcourt.nic.in 2 All] Dev Prasad and others V. State of U.P. and others 579 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 31.7.2002 BEFORE THE HON'BLE M. KATJU, J. THE HON'BLE K.N. SINHA, J. Civil Misc. Writ Petition No. 4119 of 2002 Dev Prasad and others ...Petitioner Versus The State of U.P. & others ...Respondents Counsel for the Petitioner: Sri A.K. Saxena Counsel for the Respondents: A.G.A. Constitution of India, Article 226- writ of certiorari- for quashing FIR lodged u/s 304 B I.P.C. and 3/4 D.P. Act- court expressed its great concern that in simple murder case- death sentence is inflicted while in dowry only Life Imprisonment given- direction issued for enactment of death sentence to the accused of Dowry death accused also- as a dowry death is much worse offence. Held- Para 5 We are surprised that while an ordinary murder can be punished by a death sentence under section 302 I.P.C. a dowry death, which is much worse offence, has a maximum punishment of life imprisonment. An ordinary murder is committed in a fit of rage or for a property, but a dowry death is not just an ordinary crime, it is a social crime. It outrages the modern conscience. It makes the whole of society revert to feudal barbarism. Hence we recommend to Parliament to amend the law and provide for death sentence in dowry death cases. (Delivered by Hon'ble M. Katju, J.) 1. Heard learned counsel for the petitioner and learned Government counsel. The offence of dowry death under section 304 B I.P.C. was only introduced in the Statute Book in the year 1986. Before 1986 dowry death cases were very rare. Now the position has totally changed. Everyday several cases relating to dowry death are coming before us, which shows that this is a social phenomenon which has spread like cancer and is making our society barbaric. 2. In our country when a young girl comes after her marriage to her sasural she comes into a new environment where every one is a stranger to her. She leaves behind all her relations and friends in her maika and comes to her husband's house bewildered, diffident and apprehensive. At that time she needs a lot of love and affection from her-in-laws who start demanding more and more dowry and inflict all types of atrocities on her for this purpose. The girl's father out of love for his daughter has to succumb to these demands, but even then very often the girl is killed. The reason for this is that very often the husband or the father of the husband kills the girls so that the boy may be married again to some other girl and the same process may begin again. This barbaric attitude is only due to the lust for money, which has spread all over our society. 3. Hundreds and thousands of young girls are being killed in this manner, and this can be seen from the large number of FIRs under section 304 B IPC which are filed all over the country.