Dr. Nand Kishore and Another vs State of U.P. and Others

S.K. Phaujdar, J.—Through this application u/s 482, Code of Criminal Procedure the two applicants, the husband and wife, have prayed for consideration of their bail application at the Court below at Budaun on the date of their surrender and their moving the said bail application in relation to case Crime No. 368 of 1998, P.S. Bisauli, district Budaun, for offences u/s 352/332/504/336, I.P.C. read with Section 3(1)(x) of the S.C. and S.T. (Prevention of Atrocities) Act. When confronted with the Full Bench decision of this Court that direction, for taking up bail applications on the date of their presentation are not to be given, the learned Counsel relied on certain decisions of the Supreme Court to say that these decisions would override the Full Bench decision of this High Court.

Reliance was placed on the order on the application for Special Leave Bearing No. 2220 of 1998. Mayawati v. Central Bureau of Investigation, New Delhi. By its order dated 7.8.1998, the Supreme Court observed that there was no merit in the SLP It was accordingly dismissed. The Supreme Court, however, directed that if the Petitioner was arrested in connection with the concerned case, her bail application ''shall be'' considered by the concerned Magistrate on the same day.

Reliance was also placed on Anr. Decision of the Supreme Court as in Union of India (UOI) and Others Vs. Sushil Kumar Modi and Others, . where the Supreme Court had directed that when the nature of the proceeding before the High Court was somewhat similar to those pending before the Apex Court in two other writ petitions, the High Court was required to proceed with the matter in a manner similar to which the Supreme Court had proceeded. This was in relation to a civil appeal arising out of an order recorded by the Patna High Court upon a writ petition. The procedure related to the jurisdiction of the High Court to monitor the investigation conducted by C.B.I. or other agencies. Questions of monitoring similar investigations were there before the Supreme Court in Vineet Narain''s case and the Supreme Court had given certain guidelines. The Supreme Court desired that when it was a question of monitoring, the same guidelines should be followed.

Reliance was further placed on Anr. Decision of the Supreme Court in Sarwan Singh Lamba and others Vs. Union of India and others, . where in it was observed, in interpreting Article 141 of the Constitution, that an obiter dictum by the Supreme Court was also expected to be obeyed and followed.

In the case reported in Union of India (UOI) and Others Vs. Sushil Kumar Modi and Others, the Supreme Court had given certain guidelines in the matter of monitoring an investigation. In that sense, it was a declaration of law and the High Court, under a similar circumstance, was directed to follow the same guidelines.

In the case reported in Sarwan Singh Lamba and others Vs. Union of India and others, . observation was made regarding binding nature of an obiter dictum. An obiter dictum is an observation by a Court on a legal question suggested by a case before it but not arising in such manner as to require a decision.

A question would naturally arise if the direction of the Supreme Court on the SLP of Mayawati was any decision on a legal question or even any suggestion thereto. On a plain reading of the order, it appears that the Supreme Court did not pronounce any principle of law, rather the SLP was dismissed on merits but certain directions were given which are to be read as peculiar to that case only and not an enunciation of a principle of law. The Supreme Court is vested with enormous powers under Article 142 of the Constitution of India to make such order as is necessary for doing complete justice. This wide power is not available to the High Court.

Reliance was also placed on a decision of the Allahabad High Court recorded in an application u/s 482 Code of Criminal Procedure vide Criminal Misc. Application No. 2119 of 1997 wherein the Court had directed that an accused, on appearance before the Court for offences u/s 147/148/504/506, I.P.C. read with Section 3(x)(ii) of the S.C. and S.T. (P.A.) Act, was to be granted bail. The Legislature had repealed Section 438, Code of Criminal Procedure so far the State of U.P. is concerned. In my view, Section 482, Code of Criminal Procedure may not be utilized for exercising a power of anticipatory bail which has been taken out of the Legislation by the competent Legislature.

Under these circumstances, the direction of the Full Bench of this High Court shall prevail. The application stands disposed of with a direction that on their surrender and on their making a prayer for bail the application of the applicants shall be considered most expeditiously and the Court shall keep in view the background of the case and also the argument that an incident of simple assault has been inflated to an unusual proportion. The Court shall also keep in mind that it is not necessary in every case to send an accused to bail before recording a bail order.