{"id":241758,"date":"2008-01-29T00:00:00","date_gmt":"2008-01-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/som-mittal-vs-govt-of-karnataka-on-29-january-2008"},"modified":"2019-01-23T00:52:38","modified_gmt":"2019-01-22T19:22:38","slug":"som-mittal-vs-govt-of-karnataka-on-29-january-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/som-mittal-vs-govt-of-karnataka-on-29-january-2008","title":{"rendered":"Som Mittal vs Govt. Of Karnataka on 29 January, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Som Mittal vs Govt. Of Karnataka on 29 January, 2008<\/div>\n
Author: H.K. Sema<\/div>\n
Bench: H.K. Sema, Markandey Katju<\/div>\n
           CASE NO.:\nAppeal (crl.)  206 of 2008\n\nPETITIONER:\nSom Mittal\n\nRESPONDENT:\nGovt. of Karnataka\n\nDATE OF JUDGMENT: 29\/01\/2008\n\nBENCH:\nH.K. Sema & Markandey Katju \n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of Special Leave Petition (Crl.) NO. 1719 OF 2006)
\nDelivered by:\n<\/p>\n
H.K. SEMA, J
\nMARKANDEY KATJU, J<\/p>\n
H.K.SEMA,J.\n<\/p>\n
(1)\t\tLeave granted.\n<\/p>\n
(2)\t\tHeard learned counsel for the parties.\n<\/p>\n
(3)\t\tThis appeal is directed against the judgment and
\norder dated 28th March, 2006 passed by the High Court of
\nKarnataka at Bangalore in Criminal Petition No. 1535 of 2006
\nfiled under Section 482 of the Code of Criminal Procedure with
\na prayer to quash cognizance of offence under Sections 25 and
\n30(3) of the Karnataka Shops and Commercial Establishments
\nAct, 1961 (in short the Act) by Metropolitan Magistrate Traffic
\nCourt III.\n<\/p>\n
(4)\t\tIn view of the order that we propose to pass, it may
\nnot be necessary to recite the entire facts leading to the filing
\nof the present appeal.  Suffice it to say that an unfortunate
\nincident had occurred on 13th December, 2005 in which late
\nSmt. Pratibha Srikant Murthy was stated to have been
\nmurdered on her way to work from her residence.  Pursuant to
\nthe aforesaid incident a complaint was filed on 27th December,
\n2005 against the appellant alleging violation of Sections 25
\nand 30(3) of the Act before the Metropolitan Magistrate.   On
\n30th December, 2005, the Metropolitan Magistrate took
\ncognizance of the offences under aforesaid sections of the Act.
\nOn 23rd March, 2006, a petition under Section 482 of the Code
\nof Criminal Procedure for quashing of the complaint and
\ncognizance was filed before the High Court.  The High Court,
\nby its impugned order dated 28th March, 2006, dismissed the
\npetition.  Hence, the present appeal by special leave.
\n(5)\t\tThe High Court, by its impugned order, has altered
\nthe cognizance taken by the Magistrate under Section 25 read
\nwith Section 30(3) to that one under Section 25 read with
\nSection 30(1) of the Act.  The High Court was of the view that
\ntaking cognizance against the appellant cannot be found fault
\nwith and dismissed the petition.\n<\/p>\n
(6)\t\tIt is noticed, therefore, that petition under Section
\n482 was filed at the threshold for quashing of the cognizance
\ntaken by the Magistrate.\n<\/p>\n
(7)\t\tMr. K. K. Venugopal, learned Senior counsel for the
\nappellant has addressed us on merits of the case.  He would
\ncontend that the appellant is a Managing Director and
\noccupying the position of management and, therefore, he
\nwould be entitled for exemption under Section 3(h) of the Act.
\nHe would further contend that the appellant, being Managing
\nDirector of the company, would not be liable for prosecution
\nunder Section 25 read with Section 30(1) of the Act.
\n(8)\t\tPer contra, Ms Anitha Shenoy, learned counsel
\nappearing on behalf of the respondent, contended that
\nChapter VIII of the Act deals with a penal provision.  She
\nwould contend that the language, Whoever contravenes
\nemployed in Section 30 of the Act would include the Managing
\nDirector.\n<\/p>\n
(9)\t\tAt this stage we are not prepared to enter into the
\nmerits of the case on the basis of contentions urged by the
\nrespective counsel.  Here are our reasons:\n<\/p>\n
(10)\t\tIn a catena of decisions this Court has deprecated
\nthe interference by the High Court in exercise of its inherent
\npowers under Section 482 of the Code in a routine manner.  It
\nhas been consistently held that the power under Section 482
\nmust be exercised sparingly, with circumspection and in
\nrarest of  rare cases.  Exercise of inherent power under Section
\n482 of the Code of Criminal Procedure is not the rule but it is
\nan exception.  The exception is applied only when it is brought
\nto the notice of the Court that grave miscarriage of justice
\nwould be committed if the trial is allowed to proceed where the
\naccused would be harassed unnecessarily if the trial is allowed
\nto linger when prima facie it appears to Court that the trial
\nwould likely to be ended in acquittal. In other words, the
\ninherent power of the Court under Section 482 of the Code of
\nCriminal Procedure can be invoked by the High Court either to
\nprevent abuse of process of any Court or otherwise to secure
\nthe ends of justice.\n<\/p>\n
(11)\t\tThis Court, in a catena of decisions, consistently
\ngave a note of caution that inherent power of quashing a
\ncriminal proceeding should be exercised very sparingly and
\nwith circumspection and that too in the rarest of rare cases.
\nThis Court also held that the High Court will not be justified in
\nembarking upon an inquiry as to the reliability or genuineness
\nor otherwise of the allegations made in the F.I.R. or the
\ncomplaint and that the extra-ordinary or inherent powers do
\nnot confer an arbitrary jurisdiction on the court to act
\naccording to its whims and caprice.\n<\/p>\n
(12)\t\tWe now refer to a few decisions of this Court
\ndeprecating the exercise of extra ordinary or inherent powers
\nby the High Court according to its whims and caprice.
\n(13)\t\tIn State of Bihar v. J.A.C. Saldanha<\/a>  (1980) 1
\nSCC 554 this Court pointed out at SCC p. 574:\n<\/p>\n
The High Court in exercise of the extraordinary
\njurisdiction committed a grave error by making
\nobservations on seriously disputed questions of
\nfacts taking its cue from affidavits which in such a
\nsituation would hardly provide any reliable material.
\nIn our opinion the High Court was clearly in error in
\ngiving the direction virtually amounting to a
\nmandamus to close the case before the investigation
\nis complete. We say no more.
\n(14)\t\tIn Hazari Lal Gupta v. Rameshwar Prasad<\/a> (1972)
\n1 SCC 452 this Court at SCC p. 455 pointed out:\n<\/p>\n
In exercising jurisdiction under Section 561-A of
\nthe Criminal Procedure Code, the High Court can
\nquash proceedings if there is no legal evidence or if
\nthere is any impediment to the institution or
\ncontinuance of proceedings but the High Court does
\nnot ordinarily inquire as to whether the evidence is
\nreliable or not. Where again, investigation into the
\ncircumstances of an alleged cognizable offence is
\ncarried on under the provisions of the Criminal
\nProcedure Code, the High Court does not interfere
\nwith such investigation because it would then be
\nthe impeding investigation and jurisdiction of
\nstatutory authorities to exercise power in
\naccordance with the provisions of the Criminal
\nProcedure Code. <\/p>\n
(15)        In Jehan Singh v. Delhi Administration<\/a> (1974) 4
\nSCC 522 the application filed by the accused under Section
\n561-A of the old Code for quashing the investigation was
\ndismissed as being premature and incompetent on the finding
\nthat prima facie, the allegations in the FIR, if assumed to be
\ncorrect, constitute a cognizable offence.\n<\/p>\n
(16)              In Kurukshetra University v. State of Haryana
\n(1977) 4 SCC 451, this Court pointed out:\n<\/p>\n
It surprises us in the extreme that the High Court
\nthought that in the exercise of its inherent powers
\nunder Section 482 of the Code of Criminal
\nProcedure, it could quash a first information report.
\nThe police had not even commenced investigation
\ninto the complaint filed by the Warden of the
\nUniversity and no proceeding at all was pending in
\nany court in pursuance of the FIR. It ought to be
\nrealized that inherent powers do not confer an
\narbitrary jurisdiction on the High Court to act
\naccording to whim or caprice. That statutory power
\nhas to be exercised sparingly, with circumspection
\nand in the rarest of rare cases.
\n\t\t\t\t\t\t(emphasis supplied)<\/p>\n
(17)        In State of Bihar v. Murad Ali Khan<\/a> (1988) 4 SCC
\n655 this Court held that the jurisdiction under Section 482 of
\nthe Code has to be exercised sparingly and with
\ncircumspection and has given the working that in exercising
\nthat jurisdiction, the High Court should not embark upon an
\nenquiry whether the allegations in the complaint are likely to
\nbe established by evidence or not.\n<\/p>\n
(18)\t\tIn State of Haryana & ors (appellant) v. Bhajan
\nLal & ors. (respondents) 1992 Supp. (1) SCC 335, this Court
\nafter referring to various decisions of this Court, enumerated
\nvarious categories of cases by way of illustration wherein the
\ninherent power under Section 482 of the Code should be
\nexercised by the High Court.   They are:\n<\/p>\n
(1)    Where the allegations made in the first
\ninformation report or the complaint, even if they are
\ntaken at their face value and accepted in their
\nentirety do not prima facie constitute any offence or
\nmake out a case against the accused.\n<\/p>\n
(2)  Where the allegations in the first information
\nreport and other materials, if any, accompanying
\nthe FIR do not disclose a cognizable offence,
\njustifying an investigation by police officers under
\nSection 156(1) of the Code except under an order of
\na Magistrate within the purview of Section 155(2) of
\nthe Code.\n<\/p>\n
(3)   Where the uncontroverted allegations made in
\nthe FIR or complaint and the evidence collected in
\nsupport of the same do not disclose the commission
\nof any offence and make out a case against the
\naccused.\n<\/p>\n
(4)   Where, the allegations in the FIR do not
\nconstitute a cognizable offence but constitute only a
\nnon-cognizable offence, no investigation is permitted
\nby a police officer without an order of a Magistrate
\nas contemplated under Section 155(2) of the Code.\n<\/p>\n
(5)   Where the allegations made in the FIR or
\ncomplaint are so absurd and inherently improbable
\non the basis of which no prudent person can ever
\nreach a just conclusion that there is sufficient
\nground for proceeding against the accused.\n<\/p>\n
(6)   Where there is an express legal bar engrafted in
\nany of the provisions of the Code or the concerned
\nAct (under which a criminal proceeding is
\ninstituted) to the institution and continuance of the
\nproceedings and\/or where there is a specific
\nprovision in the Code or the concerned Act,
\nproviding efficacious redress for the grievance of the
\naggrieved party.\n<\/p>\n
(7)   Where a criminal proceeding is manifestly
\nattended with mala fide and\/or where the
\nproceeding is maliciously instituted with an ulterior
\nmotive for wreaking vengeance on the accused and
\nwith a view to spite him due to private and personal
\ngrudge.
\n(19)\t        We may observe here that despite this Courts
\nconsistently held in catena of decisions that inherent power of
\nthe High Court should not be exercised according to whims
\nand caprice and it has to be exercised sparingly, with
\ncircumspection and in the rarest of rare cases, we often come
\nacross the High Court exercising the inherent power under
\nSection 482 of the Code of Criminal Procedure in a routine
\nmanner at its whims and caprice setting at naught the
\ncognizance taken and the FIR lodged at the threshold
\ncommitting grave miscarriage of justice.  While it is true that
\nso long as the inherent power of Section 482 is in the Statute
\nBook, exercise of such power is not impermissible but it must
\nbe noted that such power has to be exercised sparingly with
\ncircumspection and in the rarest of rare cases, the sole aim of
\nwhich is to secure the ends of justice.  The power under
\nSection 482 is not intended to scuttle justice at the threshold.
\n(20)         The rulings cited by Mr. K.K. Venugopal  East
\nIndia Commercial Co. Ltd., Calcutta & Anr. V. The
\nCollector of Customs, Calcutta<\/a> 1963 (3) SCR 338; T. Prem
\nSagar v. The Standard Vacuum Oil Company Madras &
\nOrs.<\/a> 1964 (5) SCR 1030; Boothalinga Agencies v. V.T.C.
\nPoriaswami Nadar<\/a> 1969 (1) SCR 65; and S.M.S.\n<\/p>\n
Pharmaceuticals Ltd. V. Neeta Bhalla & Anr. (2005) 8 SCC
\n89    are not applicable in the facts of this case at this stage in
\nview of our view above.\n<\/p>\n
(21)\t\tIn the result, there is no infirmity in the order
\npassed by the High Court warranting our interference in
\nexercise of our power under Article 136 of the Constitution.
\nThis appeal is, accordingly, dismissed.\n<\/p>\n
(22)\t\tWe clarify that we do not express any opinion on the
\nmerits of the case.   The trial court shall decide the matter
\nexpeditiously uninfluenced by any observations made by this
\nCourt or the High Court.  The trial court shall decide the
\nmaintainability of the complaint at the time of consideration of
\nthe charge.  We further make it clear that it is open to the
\nparties to urge all the contentions as available under the law,
\nincluding the maintainability of the complaint before the trial
\njudge at the time of consideration of this charge.
\n(23)\t\tWith these observations and directions, the appeal
\nis dismissed.\n<\/p>\n
Markandey Katju, J.\n<\/p>\n
1.\tI have perused the judgment of my learned brother Honble H.K.
\nSema, J. in this appeal.\n<\/p>\n
2.\tI respectfully agree with his conclusion that the appeal be dismissed
\nbut only because of the observations in his judgment that we are not
\nexpressing any opinion on the merits of the case.  However, I think it is
\nnecessary to give my separate concurrent judgment in this case.\n<\/p>\n
3.\tThe appellant before us, Mr. Som Mittal, is the Managing Director of
\nHewlett Packard Global Soft Ltd. He filed a petition under Section 482,
\nCr.P.C. before the Karnataka High Court challenging the order dated
\n30.12.2003 passed by the Metropolitan Magistrate Traffic Court III,
\nBangalore, taking cognizance of an offence under Section 25 of the
\nKarnataka Shops and Commercial Establishments Act, 1961 (in short `the
\nAct) read with Section 30(3) of the same and also the conditions imposed
\nby the Karnataka Government in its order dated 9.2.2005.  It may be
\nmentioned that cognizance was taken on a complaint filed by the respondent
\nthrough its Senior Labour Inspector, 18th Circle, Bangalore.\n<\/p>\n
4.\tSection 25 as amended by Act No.14 of 2002 reads as follows :\n<\/p>\n
25. Prohibition of employment of women and young
\npersons during night: No woman, or a young person,
\nshall be required or allowed to work whether as an
\nemployee or otherwise in any establishment during
\nnights.\n<\/p>\n
\tProvided that the State Government may, by
\nnotification exempt any establishment of Information
\nTechnology or Information Technology enabled service
\nfrom the provisions of this section relating to,
\nemployment of women during night subject to the
\ncondition that the establishment provides facilities of
\ntransportation and security to such women employees
\nand subject to any other condition as may be specified in
\nthe notification.<\/p>\n
5.\tIt may be noted from the above provision that while the main part of
\nSection 25 is prohibition of employment of women and young persons in a
\nshop or commercial establishment during night, the proviso enables the State
\nGovernment to exempt any establishment of Information Technology from
\nthe provisions of the section subject to the condition that the establishment
\nprovides facility for transportation and security to the woman employees.\n<\/p>\n
6.\tThe Deputy Labour Commissioner, Region 2, Bangalore, in exercise
\nof the power under the proviso to Section 25 issued an office order in terms
\nof Section 25 read with Rule 24(b) of the Karnataka Shops and Commercial
\nEstablishments Rules 1963 granting exemption.  Condition No.2 of the said
\nOrder stated :\n<\/p>\n
Transport facilities from the residence to workplace and
\nback shall be provided free of cost and with adequate
\nsecurity. <\/p>\n
7.\tIt appears that on 13.12.2005 at about 2 a.m. a woman employee of
\nthe Company of which the appellant was Managing Director was traveling
\nfrom her house to the workplace situated in Electronic City, Bangalore.
\nWhile on the way the vehicle driver took the vehicle to a secluded place and
\nraped and killed the said woman employee.  This fact finds reference in the
\nletter of the Bangalore City Police Commissioner dated 26.12.2005
\naddressed to the Labour Commissioner, and in the said letter it is stated that
\nadequate security had not been provided to the said woman employee during
\nher travel from her home to the workplace.  It is on the basis of this letter
\nthat the complaint was filed on the basis of which cognizance was taken by
\nthe learned Magistrate.\n<\/p>\n
8.\tShri K.K. Venugopal, learned counsel for the appellant, has invited
\nour attention to Section 3(1)(h) of the Act which states :
\n\t3(1)\tNothing in this Act shall apply to <\/p>\n
(h) person occupying positions of management in
\nany establishment. <\/p>\n
9.\tWe agree with Shri Venugopal that the Managing Director is surely a
\nperson occupying a position of management in the establishment and hence
\nSection 3(1)(h) is clearly attracted to the facts of this case.\n<\/p>\n
10.\tHowever, learned counsel for the State Government has relied on
\nSection 2(h) of the Act which states :\n<\/p>\n
2(h)\tEmployer means a person having charge of or
\nowning or having ultimate control over the affairs of an
\nestablishment and includes members of the family of an
\nemployer, a manager, agent or other person acting in the
\ngeneral management or control of an establishment; <\/p>\n
11.\tLearned counsel for the respondent submitted that Section 30(1) of the
\nAct states that Whoever contravenes any of the provisions of Sections 4, 5 –\n<\/p>\n
—–, 25 and 39, shall, on conviction, be punished with fine.  She
\nsubmitted that the word whoever in section 30 is broad enough to include
\nthe Managing Director also.\n<\/p>\n
12.\tTo my mind, there seems to be some apparent conflict between
\nsection 30 and section 3(1)(h) of the Act since while the latter provision
\nstates that a person in a position of management is outside the purview of the
\nAct, it is contended by counsel for the respondent that the former provision
\nincludes a person in management also since the word whoever is very
\nwide.\n<\/p>\n
13.\tSince section 30 is also part of the Act, hence prima facie it seems that
\na Managing Director does not come within the purview of the Act in view of
\nsection 3(1)(h).  It prima facie seems that only persons not in a position of
\nmanagement will come within the purview of the Act, and hence they alone
\ncan be penalized under Section 30.  If persons in a position of management
\nare also intended to be penalized then that will require an amendment to the
\nAct, in particular Section 3(1)(h) thereof.  The Court cannot amend an Act of
\nthe legislature, and cannot fill up a casus omissus.\n<\/p>\n
14.\tHowever, I am not expressing  any final opinion on the merits of the
\nmatter, and it is left open for the court concerned to interpret the various
\nprovisions of the Act.\n<\/p>\n
15.\tWhile I agree with my learned brother, Honble Sema J. that the
\npower under section 482 Cr.P.C. is to be exercised sparingly, I cannot agree
\nwith my learned brother that it should be exercised in the rarest of the rare
\ncases.\n<\/p>\n
16.\tThe expression rarest of the rare cases was used in connection with
\nSection 302 IPC to hold that death penalty should only be imposed in rarest
\nof rare cases vide Constitution Bench decision of this Court in Bachan
\nSingh vs. State of Punjab (vide para 207) AIR 1980 SC 898.  In my
\nopinion, this expression cannot be extended to a petition under Section 482
\nCr.P.C..  Though I agree with my learned brother Honble Sema J. that the
\npower under Section 482 Cr.P.C. should be used sparingly, yet there may be
\noccasions where in the interest of justice the power should be exercised.\n<\/p>\n
17.\tIn this connection, I would also like to refer to the situation prevailing
\nin the State of Uttar Pradesh where due to deletion of the provision for
\nanticipatory bail under Section  438  Cr.P.C. by  Section  9  of  the  U.P. Act
\n16 of 1976, huge difficulties have been created both for the public as well as
\nfor the Allahabad High Court.\n<\/p>\n
18.\tIt may be noted that in U.P. such provision for anticipatory bail has
\nbeen deleted while it continues to exist in all other States in India, even in
\nterrorist affected States.  The result is that thousands of petitions under
\nSection 482 are filed every year in Allahabad High Court praying for stay of
\narrest or for quashing the FIR, because in the absence of the provision of
\nanticipatory bail many persons who are innocent cannot get anticipatory bail
\neven though the FIR filed against them may be frivolous and\/or false.  Even
\nif such persons get regular bail under Section 439, before that they will have
\nto go to jail, and thus their reputation in society may be irreparably
\ntarnished.\n<\/p>\n
19.\tIt has been held by this Court in Joginder Kumar vs. State of U.P.
\nand others AIR 1994 SC 1349 (vide para 24)  that No arrest can be made
\nbecause it is lawful for the Police Officer to do so.  The existence of the
\npower to arrest is one thing and the justification for the exercise of it is quite
\nanother.  The Police Officer must be able to justify the arrest apart from his
\npower to do so.  Arrest and detention in police lock up of a person can cause
\nincalculable harm to the reputation and self esteem of a person.  No arrest
\ncan be made in a routine manner on a mere allegation of commission of an
\noffence made against a person.  It would be prudent for a Police Officer in
\nthe interest of protection of the constitutional right of a citizen and perhaps
\nin his own interest that no arrest should be made without a reasonable
\nsatisfaction reached after some investigation as to the genuineness and bona
\nfides of a complaint and a reasonable belief both as to the persons
\ncomplicity and even so as to the need to effect arrest.  Denying a person of
\nhis liberty is a serious matter.  The recommendation of the Police
\nCommissioner merely reflects the constitutional concomitants of the
\nfundamental right to personal liberty and freedom.
\nA person is not liable to arrest merely on the suspicion of complicity in an
\noffence.  There must be a reasonable justification in the opinion of the
\nofficer effecting the arrest that such arrest is necessary and justified.  Except
\nin heinous offences, an arrest must be avoided if a police officer issues
\nnotice to a person to attend the Station House and not to leave Station
\nwithout permission would do.\n<\/p>\n
20.\tIn para 13 of the same judgment this Court has also referred to the
\nThird Report of the National Police Commission which stated that by and
\nlarge nearly 60% of the arrests in the country were unnecessary or
\nunjustified.  Also, 43.2 % of the expenditure in jails was over such prisoners
\nonly who need not have been arrested at all.\n<\/p>\n
21.\tDespite this categorical judgment of the Supreme Court it appears that
\nthe police is not at all implementing it.  What invariably happens is that
\nwhenever an FIR of a cognizable offence is lodged the police immediately
\ngoes to arrest the accused person.  This is clear violation of the aforesaid
\njudgment of the Supreme Court.\n<\/p>\n
22.\tIt may be noted that Section 2(c) Cr.P.C. defines a cognizable offence
\nas an offence in which a police officer may arrest without warrant.  Similarly
\nSection 41 Cr.P.C. states a police officer may arrest a person involved in a
\ncognizable offence.  The use of the word `may shows that a police officer is
\nnot bound to arrest even in a case of a cognizable offence.  When he should
\narrest and when not is clarified in Joginder Kumars case (supra).\n<\/p>\n
23.\tAgain in Section 157(1) Cr.P.C. it is mentioned that a police officer
\nshall investigate a case relating to a cognizable offence, and if necessary take
\nmeasures for the arrest of the offender.  This again makes it clear that arrest
\nis not a must in every case of a cognizable offence.\n<\/p>\n
24.\tBecause of absence of the provision for anticipatory bail in U.P.
\nthousands of writ petitions and Section 482 Cr.P.C. applications are being
\nfiled in the Allahabad High Court praying for stay of the petitioners arrest
\nand\/or quashing the FIR.  This is unnecessarily increasing the work load of
\nthe High Court and adding to the arrears, apart from the hardship to the
\npublic, and overcrowding in jails.\n<\/p>\n
25.\tThe right to liberty under Article 21 of the Constitution is a valuable
\nright, and hence should not be lightly interfered with.  It was won by the
\npeople of Europe and America after tremendous historical struggles and
\nsacrifices.  One is reminded of Charles Dickens novel `A Tale of Two
\nCities in which Dr. Manette was incarcerated in the Bastille for 18 years on
\na mere lettre de cachet of a French aristocrat, although he was innocent.\n<\/p>\n
26.\tIn Ghani vs. Jones (1970) 1 Q.B. 693 (709) Lord Denning observed :\n<\/p>\n
     A mans liberty of movement is regarded so
\nhighly by the Law of England that it is not to be hindered
\nor prevented except on the surest grounds.  <\/p>\n
The above observation has been quoted with approval by a Constitution
\nBench decision of this Court in Maneka Gandhi vs. Union of India AIR<\/a>
\n1978 SC 597 (vide para 99).\n<\/p>\n
27.\tDespite this clear enunciation of the law many people are arrested and
\nsent to the jail on the basis of false and\/or frivolous FIRs.\n<\/p>\n
28.\tIn my opinion the problem will be obviated by restoring the provision
\nfor anticipatory bail which was contained in Section 438 Cr.P.C. but was
\ndeleted in U.P. by Section 9 of U.P. Act 16 of 1976.\n<\/p>\n
29.\tIt is surprising that the provision for anticipatory bail has been deleted
\nin U.P although it exists in all other States in India, even in terrorist affected
\nStates.  I do not understand why this provision should not exist in U.P. also.\n<\/p>\n
30.\tAs pointed out in Balchand Jain vs. State of Madhya Pradesh AIR<\/a>
\n1977 SC 366, the provision for anticipatory bail was included in the Cr.P.C.
\nof 1973 in pursuance of the Forty First Report of the Law Commission
\nwhich observed:-\n<\/p>\n
The necessity for granting anticipatory bail arises
\nmainly because sometimes influential persons try to
\nimplicate their rivals in false cases for the purpose of
\ndisgracing them or for other purposes by getting them
\ndetained in jail for some days.  In recent times, with the
\naccentuation of political rivalry, this tendency is showing
\nsigns of steady increase.  Apart from false cases, where
\nthere are reasonable grounds for holding that a person
\naccused of an offence is not likely to abscond, or
\notherwise misuse his liberty while on bail, there seems no
\njustification to require him first to submit to custody and
\nremain in prison for some days and then apply for bail.  <\/p>\n
31.\tThus the provision for anticipatory bail was introduced in the Cr.P.C.
\nbecause it was realized by Parliament in its wisdom that false and frivolous
\ncases are often filed against some persons and such persons have to go to jail
\nbecause even if the First Information Report is false and frivolous a person
\nhas to obtain bail, and for that he has to first surrender before the learned
\nMagistrate, and his bail application is heard only after several days (usually
\na week or two) after giving notice to the State.  During this period the
\napplicant has to go to jail.  Hence even if such person subsequently obtains
\nbail his reputation may be irreparably tarnished, as held by the Supreme
\nCourt in Joginder Kumars case (supra).  The reputation of a person is a
\nvaluable asset for him just as in law the good will of a firm is an intangible
\nasset.  In Gita Lord Krishna said to Arjun:\n<\/p>\n
\t\tlEHkkforL;\n<\/p>\n
pkdhfrZej.kknfrfjP;rss
\n\tFor a self-respecting man, death is preferable to dishonour
\n\t\t(Gita Chapter 2, Shloka 34)\n<\/p>\n
32.\tNo doubt anticipatory bail is not to be granted as a matter of course by
\nthe Court but only in accordance with the principles laid down by the
\nSupreme Court in Gurbaksh Singh vs. State of Punjab AIR 1980 SC 1632.
\nHowever, we are of the view that there must be a provision for anticipatory
\nbail in U.P. for the reason already mentioned above.\n<\/p>\n
33.\tExperience has shown that the absence of the provision for
\nanticipatory bail has been causing great injustice and hardship to the citizens
\nof U.P.  For instance, often false FIRs are filed e.g. under Section 498A IPC,
\nSection 3\/4 Dowry Prohibition Act etc.  Often aged grandmothers, uncles,
\naunts, unmarried sisters etc. are implicated in such cases, even though they
\nmay have nothing to do with the offence.  Sometimes unmarried girls have
\nto go to jail, and this may affect their chances of marriage.  As already
\nobserved by me above, this is in violation of the decision of this Court in
\nJoginder Kumars case (supra), and the difficulty can be overcome by
\nrestoring the provision for anticipatory bail.\n<\/p>\n
34.\tMoreover, the Allahabad High Court is already over-burdened with
\nheavy arrears and overloaded with work.  This load is increasing daily due to
\nthe absence of the provision for anticipatory bail.  In the absence of such
\nprovision whenever an FIR is filed the accused person files a writ petition or
\napplication under Section 482 Cr.P.C. and this has resulted in an
\nunmanageable burden on this Court.  Also jails in U.P. are overcrowded.\n<\/p>\n
35.\tThe Allahabad High Court had on several occasions requested the
\nState Government to issue an Ordinance immediately to restore the
\nprovision for anticipatory bail, (e.g. in Vijay Kumar Verma vs. State of
\nU.P., 2002 Cr.L.J. 4561) but all its requests seem to have fallen on deaf ears.
\nIt seems that there is an impression in some quarters that if the provision for
\nanticipatory bail is restored crimes will increase.   In my opinion this is a
\nspecious argument, since it has not made much difference to the crime
\nposition in the States where the provision for anticipatory bail exists, even in
\nterrorist affected States.  No doubt the recommendation of a Court is not
\nbinding on the State Government\/State Legislature but still it should be
\nseriously considered, and not simply ignored.  The Court usually makes a
\nrecommendation when it feels that the public is facing some hardship.  Such
\nrecommendation should, therefore, be given respect and serious
\nconsideration.\n<\/p>\n
36.\tI, therefore, make a strong recommendation to the U.P. Government
\nto immediately issue an Ordinance to restore the provision for anticipatory
\nbail by repealing Section 9 of U.P. Act No. 16 of 1976, and empowering the
\nAllahabad High Court as well as the Sessions Courts in U.P. to grant
\nanticipatory bail.\n<\/p>\n
37.\tIn this connection I may also refer to the decision of the Seven Judge
\nFull Bench of Allahabad High Court in Smt. Amarawati and another vs.
\nState of U.P. (2005 Crl. L.J. 755) in which the Full Bench has mentioned
\nthat the Sessions Judge while considering a bail application under Section
\n439 Cr.P.C. can grant interim bail till the final disposal of the bail
\napplication subsequently.  This will enable innocent persons to avoid going
\nto jail pending consideration of their bail application.\n<\/p>\n
38.\tI am informed that despite this Seven Judge Full Bench judgment
\nwhich has clearly mentioned that a Sessions Judge can grant interim bail, the
\nSession Courts in U.P. are ignoring the said judgment and are not granting
\ninterim bail pending disposal of the final bail application even in appropriate
\ncases.  This is wholly improper.  Decisions of this Court and of the High
\nCourt must be respected and carried out by the sub-ordinate courts
\npunctually and faithfully.  It is, therefore, directed that Amarawatis case
\n(supra) must be implemented in letter and spirit by the Sessions Courts in
\nU.P. and in this connection the Registrar General of Allahabad High Court
\nwill circulate letters to all the District Judges in U.P. along with a copy of
\nthis judgment to ensure faithful compliance of the decision of the Full Bench
\ndecision of the High Court in Amarawatis case (supra).\n<\/p>\n
39.\tThe Secretary General of this Court shall send a copy of my judgment
\nto the Chief Secretary, Home Secretary and Law Secretary of U.P. as well as
\nto the Registrar General of Allahabad High Court and also to the
\nPresident\/Secretary of Allahabad Bar Association and the Allahabad High
\nCourt Advocates Association as well as Oudh Bar Association, Lucknow
\nforthwith.  A copy shall also be sent to the Chief Secretary, Home Secretary
\nand Law Secretary of all State Governments\/Union Territories in India who
\nshall direct all officials to strictly comply with the judgment of this Court in
\nJoginder Kumars case (supra).<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Som Mittal vs Govt. Of Karnataka on 29 January, 2008 Author: H.K. Sema Bench: H.K. Sema, Markandey Katju CASE NO.: Appeal (crl.) 206 of 2008 PETITIONER: Som Mittal RESPONDENT: Govt. of Karnataka DATE OF JUDGMENT: 29\/01\/2008 BENCH: H.K. Sema & Markandey Katju JUDGMENT: J U D G M E N T […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-241758","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSom Mittal vs Govt. 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