Ravi Kumar Agarwal And Another vs State Of U.P. And Another
2014 Latest Caselaw 2327 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 34
 

 
Case :- APPLICATION U/S 482 No. - 21577 of 2014
 

 
Applicant :- Ravi Kumar Agarwal And Another
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- K.K. Dwivedi
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri K.K. Dwivedi, learned counsel for applicants, learned Standing Counsel for State and perused the record.

2. It is really surprising that Bail Application No. 1122 of 2014 - Ravi Kumar Agarwal and Another Vs. State of U.P., filed on behalf of applicants is not being attended and disposed of by I/C District and Sessions Judge, Agra, as is evident from orders dated 31.5.2014 and 05.06.2014, whereby the same has been adjourned only on the ground that Advocates are on strike and request of prosecution for adjournment is accepted without assigning any reason. On 12.6.2014 the application has been adjourned only on the ground of strike of Advocates.

3. This approach on the part of Sessions Judge concerned is apparently illegal, inasmuch as in my view, he has failed to discharge his duties in the manner as laid down by a Seven Judges' decision of this Court in Amaravati and another Vs. State of U.P. [2004 (57) ALR 290] and approved in Lal Kamlendra Pratap Singh Vs. State of U.P. [2009 (4) SCC 437].

4. Both the above authorities have also dealt with the tendency of Courts in not passing orders on bail applications expeditiously, by applying mind, and instead simply deferring proceedings. It has been considered by this Court also in Trilok Chand Vs. State of U.P. and Anr. (Application U/S 482 Cr.P.C. No. 19926 of 2013, decided on 19.06.2013), and deprecating above tendency, in paragraph nos. 22 and 23, this Court has said :-

"22. Lastly it is contended that at least the courts 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 lot 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 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)."

5. If bail application has been filed on behalf of accused through an Advocate and Counsel does not appear on the ground that there is call of strike or on any other pretext, the Court concerned must allow the accused, in case he is present, to address the Court on bail application. It is only if the accused makes a statement that application should be deferred to some other date till his counsel is available, and he is ready to continue in jail, the Court may defer hearing on bail application. Otherwise, bail application should be heard and ought not be deferred only on the ground that Advocates are on strike or not present/ready to address the Court on bail application. If the accused(s)' counsel is present, but counsel appearing for the prosecution/complainant is not present, or seeks adjournment, that by itself would not confer a ground to the Court concerned to defer hearing of bail application, for the reason that a person cannot be allowed to be detained or continue to languish in jail merely for the reason that other side is not ready to address the Court on bail application, on merits. Reason(s) must have to be assigned by the Court concerned and there must be some special and genuine reason for such deferment, which are beyond the control of learned counsel appearing for the prosecution or the complainant, as the case may be.

6. In several matters, it has come to the notice of this Court, that mostly, bail applications are adjourned on the request of prosecution, stating that case diary has not been received or investigating officer/pairokar from the concerned Police Station has not come with record or likewise similar other excuses. These excuses on the part of prosecution are needed to be dealt with seriously and sternly. As a matter of right, Investigating Officer or Prosecution cannot delay disposal of bail application or trial, as the case may be, by simply not cooperating with the Court. It is their prime duty to attend the court at first call and produce the record called for, and assist the Court by providing required information and record to the prosecuting agency/counsel. Any defiance, negligence or carelessness in this respect, not only requires serious action on the part of Court concerned but such attitude on the part of concerned official(s) also amounts to obstruction in administration of justice for which the Court concerned can also make reference to this Court for initiating contempt proceeding against such Official/Government Official(s), and for punishing him/them suitably, for creating obstruction in administration of justice under the provisions of Contempt of Courts Act, 1971 (hereinafter referred to as 'the Act, 1971') District level officers of prosecution as also Secretary level officers in the State Government should also be apprised of such facts so as to enable them to take appropriate action on departmental side. In case of inaction on their part also, their tacit approval for defiance of Courts' order or obstruction in the administration of justice would be inferred, justifying appropriate action under the Act, 1971, against them also.

7. It is pertinent to notice here that it is a common feature of present day that considerable number of cases are pending in lower Courts owing to either non appearance of prosecution witnesses, or, production of record, specially concerned with Government agencies etc. or absence of Investigating Officer, or non production/non-appearance of formal witnesses by prosecution etc. The trial also suffers for similar reason.

8. Maintenance of Court's authority rests heavily upon Court itself. A Court of law has authority to get its order(s) executed or complied. It is for the Court to ensure that law and its rule is respected without exception. The circumstances under which Court chooses to allow adjournment or simply proceeds with the case to the detriment of the side that has failed to produce witnesses, have to be scrutinized by the Court before granting adjournment or proceeding with the case. The Court should strictly apply its authority in each and every case so as to have disposal of the matter with reasonable expeditiousness, whether bail applications or the trial itself. Duty and responsibility to ensure that State Agencies/prosecution agencies, promptly and diligently assist the Court and comply with orders thereof. Thus, obligation ultimately rests with the State itself. The State must be held responsible for lapses, if any, in this regard. It must ensure that breaches/lapses, if any, in observing obligation as above, are prevented in future. The Court must take necessary steps to assert its authority with vigour and determination so as not to allow adornments on shallow and bogus grounds. Sometimes on account of artificial, flimsy and wholly unreasonable excuses, the matters are adjourned and sometimes due to frivolous litigation a considerable time of Court is wasted which otherwise could have been utilised for some substantial issue. It prevents effective discharge of duty of Courts towards dispensation of justice to the needy.

9. Time has come when this Court has to evolve a method so that dispensation of justice expeditiously and within reasonable time becomes a reality. Today, a person facing a litigation whether civil or criminal, treats it as nightmare, not for any other reason but for the fear of prolonged litigious torture i.e. for extraordinary and indefinite period which is bound to affect, not only his pocket, but resources and life in general. The way in which the judicial system in India is seen by people can be visualised from a well known idiom "mukadme ke liye jeb me sone ki dali or pair me lohe ka joota hona chahiye." (for pursuing a litigation in court one should have a piece of gold in his pocket and shoes made of iron in feet). Literal meaning of the above idiom in its true spirit is that the money one would be required to face a litigation is so exorbitant that it may render him virtually penniless at the end and simultaneously, he will have to visit the Court for innumerable times. This assumption in general public/society has to be removed, not by simply giving lectures on various platforms or in meetings and eatings but by effective and actual work in the field. Time has come when Court should show a determination of speedy disposal of cases so as to generate confidence in litigants that a date if has been given in his case, it will cause a result on that date and not a simple adjournment i.e. another date. The tendency of date after date has to be broken.

10. In the present case, I find a serious breach on the part of I/C Sessions Judge, in simply deferring consideration of bail application of applicant, repeatedly on three dates, without there being any fault on the part of accused applicants and that is how they have continued in jail. Continuing a person in jail by keeping his bail application pending without any just and lawful reason and without any application of mind on the part of the Court, in my view, prima facie infringes his right of freedom of personal liberty. It also violates constitutional and fundamental right of the applicants under Article 21 of the Constitution of India. The applicants who are confined in jail due to deferment of their bail applications, suffer violation of their fundamental rights, thereon, for which the attitude of Court below deserves serious deprecation.

11. Learned A.G.A. At this stage submitted that due to strike of lawyers disposal of bail applications have become very difficult. If an accused is in jail, every time he is not brought to the Court. Many a times, the accused remains in jail, therefore, in absence of his counsel, courts below find it difficult as to how bail applications should be heard and decided and that is a general practical dilemma before Courts below. He required that this Court may make some clarification on this aspect for the benefit and guidance of courts below to deal with such situation and like others.

12. Looking to the above aspect, in my view, whenever bail application is filed before the Magistrate/Court, as the case may be, whether under Section 437 or under Section 439 Cr.P.C. etc., the same shall be dealt with immediately and all out attempts shall be made to pass a reasoned order by application of mind thereon on that day, unless, of course, there is requirement of prior notice to other side and such notice has not been given or the other side did not find sufficient time to collect relevant information from the Police etc. for assisting the Court. On all these aspects the matter has been clarified by larger Bench of this Court in Smt. Amrawati and Another (supra) and a Single Judge judgment in Trilok Chand (supra) which must be looked into and followed. However, in Courts where Advocates are observing strike or otherwise, abstaining from Court, bail applications shall not be adjourned for this reason alone and the same shall be dealt with on merits, as far as practicable. Some directions/guidelines in this regard are stated hereunder:

I.If in a particular Court, Strike in general continues, Magistrate/Court shall ensure hearing of bail applications in Court/Jail, as the case may be.

II.If the accused is present in Court, the Court shall permit him/her to address it and after hearing him/her and perusal of record it shall pass appropriate order on the bail application.

III.Deferment of bail application should be only if the accused makes a statement, which shall be recorded in writing by the Court concerned that bail application should be deferred till his/her counsel is available and he/she is ready to continue in detention.

IV.If the accused is not present in court having not been brought from jail, the Court shall ensure its sitting in jail itself for disposal of bail application on that very date, and with the consent of accused in jail, his/her bail application be disposed of. There also deferment shall only be on statement made by the accused which shall be recorded by the Court concerned.

V.If the Court finds that some relevant information is required from prosecution, and for valid reasons it is not available on the same day, the application may be taken up on the next day but there should not be a general long adjournment as a matter of course.

VI.Personal liberty of individuals must be given due credit, respect and honour.

13. The Court below is, therefore, directed to dispose of Bail Application No. 1122 of 2014 on the next date fixed, and the case shall not be adjourned only on the ground that Advocates are on strike or that prosecution is seeking adjournment as a matter of course.

14. It was a simple matter and should not have come to this Court but due to unfortunate inaction and lethargy on the part of the court below, the applicants have been compelled and forced to seek remedy before this Court having no other alternative. The State investigating agency and the prosecution are equally responsible since they have also not shown attitude of cooperation for expeditious disposal of bail application. In view thereof, I am clearly of the opinion that it is a fit case where the applicants must be compensated for avoidable expenses it has met in litigation before this Court.

15. The application is accordingly allowed with the aforesaid directions. The applicants shall also be entitled to cost which I quantify to Rs.Ten Thousand, which shall be paid by respondent no. 1 to the applicants within a month.

Order Date :- 18.6.2014

A. Verma/Akn