Sunil Agarwal vs State of U.P. and Others

By the Court

Heard Sri V.C. Misra, learned Senior Advocate for the Petitioner and learned Standing Counsel for the Respondents.

By this writ petition, the Petitioner, Sunil Agarwal, has prayed for a writ in the nature of mandamus directing the Respondents not to arrest the Petitioner in case Crime No. 30 of 1992, under Sections 467/468/471/409/120B/114, IPC on the basis of a first information report lodged at Police Station Manidharpur, Surat (Gujrat). Thus, it is clear that the first information report, in respect of the crime, in question, has been lodged out side the state of Uttar Pradesh and further the Petitioner has not challenged the first information report in this petition.

Learned Counsel for the Petitioner has submitted that the Petitioner is nether named in the first information report nor he has been named in the statement made u/s 161, Code of Criminal Procedure by ''Brijesh Kumar, a copy whereof has been filed and marked as Annexure 3 to this writ petition. Learned Counsel for the Petitioner has pointed out that in the aforesaid statement the name of the Petitioner, Sunil Agarwal, has not been mentioned but the name of one Sunil Sharma has been mentioned. Learned Counsel for the Petitioner also has pointed out that, in any event, of the matter, the Petitioner, could be, at the best, roped in the crime u/s 114 IPC for abetting the offence in U.P. However, learned Counsel for the Petitioner has vehemently urged that there is absolutely no allegation of abetment either against the Petitioner. For the purposes of creating a jurisdiction in this Court learned Counsel for the Petitioner has stated the abatement, it any, by the Petitioner, even on the basis of Annexure-3, mentioned above allegedly has been made in U.P. This submission was made on the basis that although Sunil Sharma, mentioned in Annexure-3, is not the name of the Petitioner but even if this is clerical mistake and Sunil Sharma has been mentioned in the aforesaid statement in place of Sunil Agarwal, then also part of the cause of action is alleged to have taken place in U.P. Further argument of the learned Counsel for the Petitioner is that the arrest of the Petitioner was affected in U.P. and, therefore, also this Court will have jurisdiction to entertain this writ petition. In any case, it is rather surprising that the Petitioner has not at all, challenged the validity of the first information report in the aforesaid case Crime No. 30 of 1992.

After hearing learned Counsel for the Petitioner, at some length, we find great difficulty in granting any relief to the Petitioner. It will be relevant to mention here that according to the case of the Petitioner himself he was arrested and a bail application was moved in the court of Ist Additional District & Sessions Judge, Kanpur This bail application was moved on behalf of the Petitioner Sunil Kumar Agarwal. The order of the learned Ist Additional District & Sessions Judge dated 16-4-1992 has been 61ed and marked as Annexure-2 to this writ petition. From a perusal of the order, Annexure-2 to the writ petition, it is clear that a prayer was made on behalf of the Petitioner, Sunil Kumar Agarwal, that he may be let off on bail for 15 days so that he could present himself before the court at Surat. The learned Sessions Judge has pointed out that the Petitioner was in custody for the last two weeks and was aged about 16 years. The learned Sessions Judge, thereafter, allowed the Petitioner to remain on bail for 15 days on furnishing personal bond of Rs. 10,000/- and the two sureties in the like sum on the condition that he will present himself before the court at Surat on 1-5-1992. It was also made clear that, in case, the Petitioner fails to comply with the order then the bail shall be deemed to have been cancelled. It is also mentioned in paragraph 6 of the writ petition that the Petitioner was produced before the Magistrate at Kanpur where he was granted bail for 15 days on 16-4-1992. From a perusal of the aforesaid order of the learned Ist Additional District & Sessions Judge, Kanpur dated 16-4-1992, it is not clear how the matter came before the court of Ist Additional Sessions Judge. Neither there is anything on record to presume that the matter must have come after some order of the learned Magistrate. From the above facts, it is at least clear that the Petitioner was arrested in this case and, therefore, he was released on bail for 15 days by the court below and during the subsistance of the temporary bail order dated 16-4-1992, the Petitioner filed this writ petition. In this view of the matter, the only inference that can be drawn is that the Petitioner was arrested and continued to be under judicial custody after the grant of temporary bail. In case, he is in judicial custody then this Court cannot stay the arrest the Petitioner. Once the Petitioner is continued to be under arrest or in judicial custody there is absolutely no question of staying his arrest by this Court. However, if the arrest of the Petitioner, for any reason, is illegal then certainly that matter can be agitated in this Court by means of Habeas Corpus petition. The first information report, in this case was lodged at Surat. In paragraph 7 of the writ petition it has been stated that Surat police arrested the Petitioner with the help of the police of Etawah and also prepared recovery memo with the police at Kanpur. There is absolutely no material on record to verify whether any warrant was issued u/s 79, Code of Criminal Procedure. Neither there is any material before us to infer that the Petitioner moved the bail application u/s 81, Code of Criminal Procedure Since the Petitioner admittedly, is in judicial custody, therefore, we are not inclined to pass any order for staying the arrest of the Petitioner, as prayed in this writ petition. The petition does not contain relevant pleadings or materials as such also the relief cannot be granted.

However, it is necessary to point out that the Petitioner is involved under Sections 467/468/471/120B/114, IPC. Learned Counsel for the Petitioner very strongly urged that the bail was granted to the Petitioner for 15 days by the court below on a concession made on behalf of the Petitioner and the case for bail was not at all considered on merits or in accordance with law. Learned Counsel for the Petitioner has pointed out that the concession was given to by the court specially when the Petitioner was in jail and in this view of the matter the learned Counsel for the Petitioner has stated that the order of learned Additional Sessions Judge, Annexure-2 to the writ petition, dated 16-4-1992 may be suspended for a period of two weeks only to enable the Petitioner to make a fresh bail application for appropriate orders. It will also be relevant to point out that the order dated 16-4-1992, passed by the learned Sessions Judge, has not been challenged by the Petitioner in this writ petition.

In view of the above facts and circumstances we are directing the Respondents not to give effect to the order of the learned Ist Additional District and Sessions Judge, Kanpur dated 16-4-1992, Annexure-2 to the writ petition, for a period of two weeks from today and during this period unless the Petitioner has already been arrested by the police authorities or is required in some other case, he shall not be arrested in Uttar Pradesh till 14-5-1992. In the meantime necessary fresh bail application may be filed before the courts concerned on behalf of the Petitioner with all relevant details along with a certified copy of this order passed by this Bench and the courts below shall be fee to pass any order on merits and in accordance with law.

It is clarified that the above order has been passed only to give opportunity to the Petitioner to present his bail application for decision on merits and in accordance with law.

Before parting it is necessary to point out that in paragraph 14 of the writ petition it has been averred that in similar cases stay order has been granted by this Court and one of such cases in Civil Misc. Writ Petition No. Nil of 1992 (District Mathura)--Ram Niwas Agarwal and Ors. v. State of U.P. and Ors. It has been urged vehemently that the Petitioner is also entitled to similar order. We sent for the above file from the office and examined the contents thereof. The facts of that case, as narrated in that writ petition, are wholly distinguishable. In that writ petition, according to the averments made therein, the Petitioners were never arrested, neither they had applied for any bail nor were granted temporary bail, as it has been done in the present case.

With the above observations/directions, this writ petition is finally disposed of.

30-4-1992. Sd/-S.K.M. Sd/-J.P.S.

A certified copy of the order be issued to the learned Counsel for the Petitioner on payment of usual charges within three days.