1992 (5) TMI 202 - HC - Indian Laws

Court emphasizes just and speedy bail process, rejects petition, suggests administrative measures.

Noor Mohammad Versus State Of U.P And Others

The court dismissed the petition, emphasizing the importance of using bail provisions justly and reasonably. It highlighted the need for an expeditious ... - Issues Involved:1. Validity of the First Information Report (FIR).2. Directions regarding the disposal of the bail application.3. Directions to prevent the arrest of the petitioner.Detailed Analysis:1. Validity of the First Information Report (FIR):The petitioner sought quashing of the FIR lodged against him, alleging misappropriation of funds while functioning as pradhan of gram sabha Jamunaha, an offense punishable under Section 409 of the Indian Penal Code (IPC). The petitioner argued that the FIR was initiated at the instance of the Sub-Divisional Magistrate without any inquiry. However, the court found that an inquiry was indeed conducted, as evidenced by the communication from the Sub-Divisional Magistrate to the Block Development Officer, which was based on a report by the Additional District Magistrate. The court concluded that even if no inquiry had been conducted, it would not imply that the allegations in the FIR were false. The court determined that the FIR contained specific allegations which, if proven, would constitute an offense. Therefore, there was no reason to quash the FIR or stop the investigation.2. Directions regarding the disposal of the bail application:The petitioner requested that the court direct the lower court to dispose of his bail application on the same day it is moved. The petitioner also sought directions for his release on a personal bond if the bail application could not be disposed of the same day, or alternatively, to direct the police not to arrest him until the bail application was decided. The court noted that the directions sought were in the nature of mandamus, which can only be issued to enforce a statutory duty. The court cited the case of Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. v. Sipahi Singh, emphasizing that a writ of mandamus can only be granted where there is a statutory duty imposed on the officer concerned and a failure to discharge that duty. The court held that it could not direct any subordinate court to act contrary to the provisions of law, as doing so would undermine the rule of law.The court examined the provisions of Sections 437 and 439 of the Criminal Procedure Code (Cr. P.C), which govern the determination of bail applications. Section 439(1) specifically requires notice to be given to the Public Prosecutor in certain cases before deciding a bail application. The court reasoned that directing the lower court to decide the bail application the same day would deny the prosecution the opportunity to present relevant material, thus frustrating a just consideration of the bail application. The court also noted that the process of granting bail is a judicial process guided by considerations such as the availability of the accused for trial, the likelihood of tampering with evidence, and the previous history of the accused. These factors can only be brought to the court's attention by the prosecution, necessitating notice to the prosecution. The court concluded that it could not issue directions that would compel the lower court to violate statutory provisions and procedural fairness.3. Directions to prevent the arrest of the petitioner:The petitioner sought directions to prevent his arrest pending the disposal of his bail application. The court noted that bail applications can only be moved by a person in custody, and the provisions of Section 438 Cr. P.C, which allow for anticipatory bail, are not applicable in the state. The court held that the law does not envisage a situation where a person who has moved a bail application is not in custody. The court cited a Full Bench decision in Ram Lal Yadav v. State, which held that the High Court may not stay the arrest of a person by the police for the purposes of investigation. The court concluded that directing the Magistrate not to arrest the petitioner or to release him on a personal bond would be contrary to the provisions of law and would amount to an unauthorized exercise of legislative function.The court emphasized that the Criminal Procedure Code is exhaustive in matters specifically provided by it, including the manner in which bail can be granted. Any direction to act contrary to these provisions would be unlawful. The court also noted that previous cases where similar directions were issued did not provide reasons or consider the legality of such directions. The court concluded that it could not issue directions that would violate statutory provisions and subvert the process of bail determination.Conclusion:The court dismissed the petition, emphasizing that the provisions of bail must be used in a manner that is just and reasonable, and that the process of bail should be expeditious without unnecessary encroachments on liberty. The court suggested administrative measures to simplify the bail process and reduce unnecessary hardships. The petition was dismissed with the expectation that the bail application, if moved, would be disposed of without undue delay.