SC: Admits gross misuse of 498-A

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
(Arising out of Special Leave Petition (Crl.) NO. 1719 OF 2006)
Delivered by:
H.K. SEMA, J
MARKANDEY KATJU, J


H.K.SEMA,J.



(1) Leave granted.

(2) Heard learned counsel for the parties.

(3) This appeal is directed against the judgment and
order dated 28th March, 2006 passed by the High Court of
Karnataka at Bangalore in Criminal Petition No. 1535 of 2006
filed under Section 482 of the Code of Criminal Procedure with
a prayer to quash cognizance of offence under Sections 25 and
30(3) of the Karnataka Shops and Commercial Establishments
Act, 1961 (in short the Act ) by Metropolitan Magistrate Traffic
Court III.
(4) In view of the order that we propose to pass, it may
not be necessary to recite the entire facts leading to the filing
of the present appeal. Suffice it to say that an unfortunate
incident had occurred on 13th December, 2005 in which late
Smt. Pratibha Srikant Murthy was stated to have been
murdered on her way to work from her residence. Pursuant to
the aforesaid incident a complaint was filed on 27th December,
2005 against the appellant alleging violation of Sections 25
and 30(3) of the Act before the Metropolitan Magistrate. On
30th December, 2005, the Metropolitan Magistrate took
cognizance of the offences under aforesaid sections of the Act.
On 23rd March, 2006, a petition under Section 482 of the Code
of Criminal Procedure for quashing of the complaint and
cognizance was filed before the High Court. The High Court,
by its impugned order dated 28th March, 2006, dismissed the
petition. Hence, the present appeal by special leave.
(5) The High Court, by its impugned order, has altered
the cognizance taken by the Magistrate under Section 25 read
with Section 30(3) to that one under Section 25 read with
Section 30(1) of the Act. The High Court was of the view that
taking cognizance against the appellant cannot be found fault
with and dismissed the petition.
(6) It is noticed, therefore, that petition under
Section
482 was filed at the threshold for quashing of the cognizance
taken by the Magistrate.
(7) Mr. K. K. Venugopal, learned Senior counsel for the
appellant has addressed us on merits of the case. He would
contend that the appellant is a Managing Director and
occupying the position of management and, therefore, he
would be entitled for exemption under Section 3(h) of the Act.
He would further contend that the appellant, being Managing
Director of the company, would not be liable for prosecution
under Section 25 read with Section 30(1) of the Act.
(8) Per contra, Ms Anitha Shenoy, learned counsel
appearing on behalf of the respondent, contended that
Chapter VIII of the Act deals with a penal provision. She
would contend that the language, Whoever contravenes
employed in Section 30 of the Act would include the Managing
Director.

(9) At this stage we are not prepared to enter into the
merits of the case on the basis of contentions urged by the
respective counsel. Here are our reasons:
(10) In a catena of decisions this Court has deprecated
the interference by the High Court in exercise of its inherent
powers under Section 482 of the Code in a routine manner. It
has been consistently held that the power under Section 482
must be exercised sparingly, with circumspection and in
rarest of rare cases. Exercise of inherent power under Section
482 of the Code of Criminal Procedure is not the rule but it is
an exception. The exception is applied only when it is brought
to the notice of the Court that grave miscarriage of justice
would be committed if the trial is allowed to proceed where the
accused would be harassed unnecessarily if the trial is allowed
to linger when prima facie it appears to Court that the trial
would likely to be ended in acquittal. In other words, the
inherent power of the Court under Section 482 of the Code of
Criminal Procedure can be invoked by the High Court either to
prevent abuse of process of any Court or otherwise to secure
the ends of justice.

(11) This Court, in a catena of decisions, consistently
gave a note of caution that inherent power of quashing a
criminal proceeding should be exercised very sparingly and
with circumspection and that too in the rarest of rare cases.
This Court also held that the High Court will not be justified in
embarking upon an inquiry as to the reliability or genuineness
or otherwise of the allegations made in the F.I.R. or the
complaint and that the extra-ordinary or inherent powers do
not confer an arbitrary jurisdiction on the court to act
according to its whims and caprice.
(12) We now refer to a few decisions of this Court
deprecating the exercise of extra ordinary or inherent powers
by the High Court according to its whims and caprice.
(13) In State of Bihar v. J.A.C. Saldanha (1980) 1
SCC 554 this Court pointed out at SCC p. 574:
The High Court in exercise of the extraordinary
jurisdiction committed a grave error by making
observations on seriously disputed questions of
facts taking its cue from affidavits which in such a
situation would hardly provide any reliable material.
In our opinion the High Court was clearly in error in
giving the direction virtually amounting to a
mandamus to close the case before the investigation
is complete. We say no more.
(14) In Hazari Lal Gupta v. Rameshwar Prasad (1972)
1 SCC 452 this Court at SCC p. 455 pointed out:
In exercising jurisdiction under Section 561-A of
the Criminal Procedure Code, the High Court can
quash proceedings if there is no legal evidence or if
there is any impediment to the institution or
continuance of proceedings but the High Court does
not ordinarily inquire as to whether the evidence is
reliable or not . Where again, investigation into the
circumstances of an alleged cognizable offence is
carried on under the provisions of the Criminal
Procedure Code, the High Court does not interfere
with such investigation because it would then be
the impeding investigation and jurisdiction of
statutory authorities to exercise power in
accordance with the provisions of the Criminal
Procedure Code.

(15) In Jehan Singh v. Delhi Administration (1974) 4
SCC 522 the application filed by the accused under Section
561-A of the old Code for quashing the investigation was
dismissed as being premature and incompetent on the finding
that prima facie, the allegations in the FIR, if assumed to be
correct, constitute a cognizable offence.

(16) In Kurukshetra University v. State of Haryana
(1977) 4 SCC 451, this Court pointed out:
It surprises us in the extreme that the High Court
thought that in the exercise of its inherent powers
under Section 482 of the Code of Criminal
Procedure, it could quash a first information report.
The police had not even commenced investigation
into the complaint filed by the Warden of the
University and no proceeding at all was pending in
any court in pursuance of the FIR. It ought to be
realized that inherent powers do not confer an
arbitrary jurisdiction on the High Court to act
according to whim or caprice. That statutory power
has to be exercised sparingly, with circumspection
and in the rarest of rare cases.
(emphasis supplied)

(17) In State of Bihar v. Murad Ali Khan (1988) 4 SCC
655 this Court held that the jurisdiction under Section 482 of
the Code has to be exercised sparingly and with
circumspection and has given the working that in exercising
that jurisdiction, the High Court should not embark upon an
enquiry whether the allegations in the complaint are likely to
be established by evidence or not.
(18) In State of Haryana & ors (appellant) v. Bhajan
Lal & ors. (respondents) 1992 Supp. (1) SCC 335, this Court
after referring to various decisions of this Court, enumerated
various categories of cases by way of illustration wherein the
inherent power under Section 482 of the Code should be
exercised by the High Court. They are:
(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their
entirety do not prima facie constitute any offence or
make out a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying
the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under
Section 156(1) of the Code except under an order of
a Magistrate within the purview of Section 155(2) of
the Code.

(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected in
support of the same do not disclose the commission
of any offence and make out a case against the
accused.

(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate
as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient
ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned
Act (under which a criminal proceeding is
instituted) to the institution and continuance of the
proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party.

(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal
grudge.
(19) We may observe here that despite this Court s
consistently held in catena of decisions that inherent power of
the High Court should not be exercised according to whims
and caprice and it has to be exercised sparingly, with
circumspection and in the rarest of rare cases, we often come
across the High Court exercising the inherent power under
Section 482 of the Code of Criminal Procedure in a routine
manner at its whims and caprice setting at naught the
cognizance taken and the FIR lodged at the threshold
committing grave miscarriage of justice. While it is true that
so long as the inherent power of Section 482 is in the Statute
Book, exercise of such power is not impermissible but it must
be noted that such power has to be exercised sparingly with
circumspection and in the rarest of rare cases, the sole aim of
which is to secure the ends of justice. The power under
Section 482 is not intended to scuttle justice at the threshold.
(20) The rulings cited by Mr. K.K. Venugopal East
India Commercial Co. Ltd., Calcutta & Anr. V. The
Collector of Customs, Calcutta 1963 (3) SCR 338; T. Prem
Sagar v. The Standard Vacuum Oil Company Madras &
Ors. 1964 (5) SCR 1030; Boothalinga Agencies v. V.T.C.
Poriaswami Nadar 1969 (1) SCR 65; and S.M.S.
Pharmaceuticals Ltd. V. Neeta Bhalla & Anr. (2005) 8 SCC
89 are not applicable in the facts of this case at this stage in
view of our view above.


(21) In the result, there is no infirmity in the order
passed by the High Court warranting our interference in
exercise of our power under Article 136 of the Constitution.
This appeal is, accordingly, dismissed.

(22) We clarify that we do not express any opinion on the
merits of the case. The trial court shall decide the matter
expeditiously uninfluenced by any observations made by this
Court or the High Court. The trial court shall decide the
maintainability of the complaint at the time of consideration of
the charge. We further make it clear that it is open to the
parties to urge all the contentions as available under the law,
including the maintainability of the complaint before the trial
judge at the time of consideration of this charge.
(23) With these observations and directions, the appeal
is dismissed.

Markandey Katju, J.



1. I have perused the judgment of my learned brother Hon ble
H.K.
Sema, J. in this appeal.

2. I respectfully agree with his conclusion that the appeal be
dismissed
but only because of the observations in his judgment that we are not
expressing any opinion on the merits of the case. However, I think
it is
necessary to give my separate concurrent judgment in this case.

3. The appellant before us, Mr. Som Mittal, is the Managing
Director of
Hewlett Packard Global Soft Ltd. He filed a petition under Section
482,
Cr.P.C. before the Karnataka High Court challenging the order dated
30.12.2003 passed by the Metropolitan Magistrate Traffic Court III,
Bangalore, taking cognizance of an offence under Section 25 of the
Karnataka Shops and Commercial Establishments Act, 1961 (in short
`the
Act ) read with Section 30(3) of the same and also the conditions
imposed
by the Karnataka Government in its order dated 9.2.2005. It may be
mentioned that cognizance was taken on a complaint filed by the
respondent
through its Senior Labour Inspector, 18th Circle, Bangalore.

4. Section 25 as amended by Act No.14 of 2002 reads as follows :

25. Prohibition of employment of women and young
persons during night: No woman, or a young person,
shall be required or allowed to work whether as an
employee or otherwise in any establishment during
nights.

Provided that the State Government may, by
notification exempt any establishment of Information
Technology or Information Technology enabled service
from the provisions of this section relating to,
employment of women during night subject to the
condition that the establishment provides facilities of
transportation and security to such women employees
and subject to any other condition as may be specified in
the notification.

5. It may be noted from the above provision that while the main
part of
Section 25 is prohibition of employment of women and young persons
in a
shop or commercial establishment during night, the proviso enables
the State
Government to exempt any establishment of Information Technology
from
the provisions of the section subject to the condition that the
establishment
provides facility for transportation and security to the woman
employees.

6. The Deputy Labour Commissioner, Region 2, Bangalore, in
exercise
of the power under the proviso to Section 25 issued an office order
in terms
of Section 25 read with Rule 24(b) of the Karnataka Shops and
Commercial
Establishments Rules 1963 granting exemption. Condition No.2 of the
said
Order stated :

Transport facilities from the residence to workplace and
back shall be provided free of cost and with adequate
security.

7. It appears that on 13.12.2005 at about 2 a.m. a woman
employee of
the Company of which the appellant was Managing Director was
traveling
from her house to the workplace situated in Electronic City,
Bangalore.
While on the way the vehicle driver took the vehicle to a secluded
place and
raped and killed the said woman employee. This fact finds reference
in the
letter of the Bangalore City Police Commissioner dated 26.12.2005
addressed to the Labour Commissioner, and in the said letter it is
stated that
adequate security had not been provided to the said woman employee
during
her travel from her home to the workplace. It is on the basis of
this letter
that the complaint was filed on the basis of which cognizance was
taken by
the learned Magistrate.

8. Shri K.K. Venugopal, learned counsel for the appellant, has
invited
our attention to Section 3(1)(h) of the Act which states :
3(1) Nothing in this Act shall apply to

(h) person occupying positions of management in
any establishment.

9. We agree with Shri Venugopal that the Managing Director is
surely a
person occupying a position of management in the establishment and
hence
Section 3(1)(h) is clearly attracted to the facts of this case.

10. However, learned counsel for the State Government has relied
on
Section 2(h) of the Act which states :

2(h) Employer means a person having charge of or
owning or having ultimate control over the affairs of an
establishment and includes members of the family of an
employer, a manager, agent or other person acting in the
general management or control of an establishment;

11. Learned counsel for the respondent submitted that Section 30
(1) of the
Act states that Whoever contravenes any of the provisions of
Sections 4, 5 -
-----, 25 and 39, shall, on conviction, be punished with fine .
She
submitted that the word whoever in section 30 is broad enough to
include
the Managing Director also.

12. To my mind, there seems to be some apparent conflict between
section 30 and section 3(1)(h) of the Act since while the latter
provision
states that a person in a position of management is outside the
purview of the
Act, it is contended by counsel for the respondent that the former
provision
includes a person in management also since the word whoever is
very
wide.

13. Since section 30 is also part of the Act, hence prima facie
it seems that
a Managing Director does not come within the purview of the Act in
view of
section 3(1)(h). It prima facie seems that only persons not in a
position of
management will come within the purview of the Act, and hence they
alone
can be penalized under Section 30. If persons in a position of
management
are also intended to be penalized then that will require an
amendment to the
Act, in particular Section 3(1)(h) thereof. The Court cannot amend
an Act of
the legislature, and cannot fill up a casus omissus.

14. However, I am not expressing any final opinion on the
merits of the
matter, and it is left open for the court concerned to interpret the
various
provisions of the Act.

15. While I agree with my learned brother, Hon ble Sema J. that
the
power under section 482 Cr.P.C. is to be exercised sparingly, I
cannot agree
with my learned brother that it should be exercised in the rarest
of the rare
cases .

16. The expression rarest of the rare cases was used in
connection with
Section 302 IPC to hold that death penalty should only be imposed in
rarest
of rare cases vide Constitution Bench decision of this Court in
Bachan
Singh vs. State of Punjab (vide para 207) AIR 1980 SC 898. In my
opinion, this expression cannot be extended to a petition under
Section 482
Cr.P.C.. Though I agree with my learned brother Hon ble Sema J.
that the
power under Section 482 Cr.P.C. should be used sparingly, yet there
may be
occasions where in the interest of justice the power should be
exercised.

17. In this connection, I would also like to refer to the
situation prevailing
in the State of Uttar Pradesh where due to deletion of the provision
for
anticipatory bail under Section 438 Cr.P.C. by Section 9 of
the U.P. Act
16 of 1976, huge difficulties have been created both for the public
as well as
for the Allahabad High Court.

18. It may be noted that in U.P. such provision for anticipatory
bail has
been deleted while it continues to exist in all other States in
India, even in
terrorist affected States. The result is that thousands of
petitions under
Section 482 are filed every year in Allahabad High Court praying for
stay of
arrest or for quashing the FIR, because in the absence of the
provision of
anticipatory bail many persons who are innocent cannot get
anticipatory bail
even though the FIR filed against them may be frivolous and/or
false. Even
if such persons get regular bail under Section 439, before that they
will have
to go to jail, and thus their reputation in society may be
irreparably
tarnished.

19. It has been held by this Court in Joginder Kumar vs. State
of U.P.
and others AIR 1994 SC 1349 (vide para 24) that 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 and 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 a 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 a reasonable belief both as to the person s
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
Commissioner merely reflects the constitutional concomitants of the
fundamental right to personal 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 a person to attend the Station House and not to leave
Station
without permission would do.
20. In para 13 of the same judgment this Court has also referred
to the
Third Report of the National Police Commission which stated that by
and
large nearly 60% of the arrests in the country were unnecessary or
unjustified. Also, 43.2 % of the expenditure in jails was over such
prisoners
only who need not have been arrested at all.

21. Despite this categorical judgment of the Supreme Court it
appears that
the police is not at all 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
judgment of the Supreme Court.

22. It may be noted that Section 2(c) Cr.P.C. defines a
cognizable offence
as an offence in which a police officer may arrest without warrant.
Similarly
Section 41 Cr.P.C. states a police officer may arrest a person
involved in a
cognizable offence. The use of the word `may shows that a police
officer is
not bound to arrest even in a case of a cognizable offence. When he
should
arrest and when not is clarified in Joginder Kumar s case (supra).

23. Again in Section 157(1) Cr.P.C. it is mentioned that a
police officer
shall investigate a case relating to a cognizable offence, and if
necessary take
measures for the arrest of the offender. This again makes it clear
that arrest
is not a must in every case of a cognizable offence.

24. Because of absence of the provision for anticipatory bail in
U.P.
thousands of writ petitions and Section 482 Cr.P.C. applications are
being
filed in the Allahabad High Court praying for stay of the petitioner
s arrest
and/or quashing the FIR. This is unnecessarily increasing the work
load of
the High Court and adding to the arrears, apart from the hardship to
the
public, and overcrowding in jails.

25. The right to liberty under Article 21 of the Constitution is
a valuable
right, and hence should not be lightly interfered with. It was won
by the
people of Europe and America after tremendous historical struggles
and
sacrifices. One is reminded of Charles Dicken s novel `A Tale of
Two
Cities in which Dr. Manette was incarcerated in the Bastille for 18
years on
a mere lettre de cachet of a French aristocrat, although he was
innocent.

26. In Ghani vs. Jones (1970) 1 Q.B. 693 (709) Lord Denning
observed :
A man s liberty of movement is regarded so
highly by the Law of England that it is not to be hindered
or prevented except on the surest grounds.

The above observation has been quoted with approval by a
Constitution
Bench decision of this Court in Maneka Gandhi vs. Union of India AIR
1978 SC 597 (vide para 99).

27. Despite this clear enunciation of the law many people are
arrested and
sent to the jail on the basis of false and/or frivolous FIRs.

28. In my 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. by Section 9 of U.P. Act 16 of 1976.

29. It is surprising that the provision for anticipatory bail
has been deleted
in U.P although it exists in all other States in India, even in
terrorist affected
States. I do not understand why this provision should not exist in
U.P. also.

30. As pointed out in Balchand Jain vs. State of Madhya Pradesh
AIR
1977 SC 366, the provision for anticipatory bail was included in the
Cr.P.C.
of 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.

31. 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
cases 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 Gita Lord Krishna said to Arjun:
lEHkkforL;
pkdhfrZej.kknfrfjP;rss
For a self-respecting man, death is preferable to dishonour
(Gita Chapter 2, Shloka 34)
32. No doubt anticipatory bail is not to be granted as a matter
of course by
the Court but only in accordance with the principles laid down by
the
Supreme Court in Gurbaksh Singh vs. State of Punjab AIR 1980 SC
1632.
However, we are of the view that there must be a provision for
anticipatory
bail in U.P. for the reason already mentioned above.

33. 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. For instance, often false FIRs are filed e.g. under Section
498A IPC,
Section 3/4 Dowry Prohibition Act etc. Often aged grandmothers,
uncles,
aunts, unmarried sisters etc. are implicated in such cases, even
though they
may have nothing to do with the offence. Sometimes unmarried girls
have
to go to jail, and this may affect their chances of marriage. As
already
observed by me above, this is in violation of the decision of this
Court in
Joginder Kumar s case (supra), and the difficulty can be overcome by
restoring the provision for anticipatory bail.

34. Moreover, the Allahabad High Court is already over-burdened
with
heavy arrears and overloaded with work. This load is increasing
daily due to
the absence of the provision for anticipatory bail. In the absence
of such
provision whenever an FIR 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. Also jails in U.P. are
overcrowded.

35. The Allahabad High Court had on several occasions requested
the
State Government to issue an Ordinance immediately to restore the
provision for anticipatory bail, (e.g. in Vijay Kumar Verma vs.
State of
U.P., 2002 Cr.L.J. 4561) but all its requests seem 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 my opinion
this is a
specious argument, since it has not made much difference to the
crime
position in the States where the provision for anticipatory bail
exists, even in
terrorist affected States. No doubt the recommendation of a Court
is not
binding on the State Government/State Legislature but still it
should be
seriously considered, and not simply ignored. The Court usually
makes a
recommendation when it feels that the public is facing some
hardship. Such
recommendation should, therefore, be given respect and serious
consideration.

36. I, 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
Allahabad High Court as well as the Sessions Courts in U.P. to grant
anticipatory bail.

37. In this connection I may also refer to the decision of the
Seven Judge
Full Bench of Allahabad High Court in Smt. Amarawati and another vs.
State of U.P. (2005 Crl. L.J. 755) in which the Full Bench has
mentioned
that the Sessions Judge while considering a bail application under
Section
439 Cr.P.C. can grant interim bail till the final disposal of the
bail
application subsequently. This will enable innocent persons to
avoid going
to jail pending consideration of their bail application.

38. I am informed that despite this Seven Judge Full Bench
judgment
which has clearly mentioned that a Sessions Judge can grant interim
bail, the
Session Courts in U.P. are ignoring the said judgment and are not
granting
interim bail pending disposal of the final bail application even in
appropriate
cases. This is wholly improper. Decisions of this Court and of the
High
Court must be respected and carried out by the sub-ordinate courts
punctually and faithfully. It is, therefore, directed that
Amarawati s case
(supra) must be implemented in letter and spirit by the Sessions
Courts in
U.P. and in this connection the Registrar General of Allahabad High
Court
will circulate letters to all the District Judges in U.P. along with
a copy of
this judgment to ensure faithful compliance of the decision of the
Full Bench
decision of the High Court in Amarawati s case (supra).

39. The Secretary General of this Court shall send a copy of my
judgment
to the Chief Secretary, Home Secretary and Law Secretary of U.P. as
well as
to the Registrar General of Allahabad High Court and also to the
President/Secretary of Allahabad Bar Association and the Allahabad
High
Court Advocates Association as well as Oudh Bar Association,
Lucknow
forthwith. A copy shall also be sent to the Chief Secretary, Home
Secretary
and Law Secretary of all State Governments/Union Territories in
India who
shall direct all officials to strictly comply with the judgment of
this Court in
Joginder Kumar s case (supra).