Lal Kamlendra Pratap Singh vs State Of U.P.

& Ors on 23 March, 2009

We fully agree with the view of the High in Amaravati's case (supra), and we direct that the
said decision be followed by all Courts in U.P. in letter and spirit, particularly since the
provision for anticipatory bail does not exist in U.P. In appropriate cases interim bail should be
granted pending disposal of the final bail application, since arrest and detention of a person can
cause irreparable loss to a person's reputation, as held by this Court in Joginder Kumar's case
(supra). Also, arrest is not a must in all cases of cognizable offences, and in deciding whether
to arrest or not the police officer must be guided and act according to the principles laid down
in Joginder Kumar's case (supra).

Amarawati And Anr. (Smt.) vs State Of U.P. on 15 October, 2004

Equivalent citations: 2005 (1) AWC 416, 2005 CriLJ 755, (2005) 1 UPLBEC 155

20. In Joginder Kumar v. State of U.P. and others, 1994 Cr LJ 1981, the Supreme Court
observed :

"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. 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 rights 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 bonafides of a complaint and a reasonable belief both as to the person's
complicity and even so as to the need to effect arrest."

21. In view of the above discussion and the observations made by the Apex Court in the case
of Joginder Kumar (supra), the observations made by Hon'ble Palok Basu, J. in the case of Dr.
Vinod Narain (supra) in Paragraph 183 that once disclosure of cognizable offence is made,
arrest of the accused or suspect is a "must" are incorrect and the said decision has not laid down
the c
40. There may be cases, for instance, where a totally false and frivolous FIR has been filed
against a judicial or administrative officer or a reputed citizen merely because of enmity or to
damage his reputation or to black-mail him. If the hearing of the bail application is adjourned
even for a few days he will have to remain in jail and his reputation may be irreparably
tarnished, even if subsequently he is granted bail. In our opinion the learned Judge hearing the
bail application, in his discretion, may in such a case give a very short time for the hearing after
notice is given to the Public Prosecutor, and he may, in his discretion hear the bail application
under Section 439 on the same day when it is filed. After all, giving notice merely means giving
copy of the bail application to the Public Prosecutor so that he may have an opportunity to be
heard in reply and place the material facts before the Court. There may be cases where the
learned Judge hearing the bail application under Section 439 may, if he chooses, give a very
short time to the Public Prosecutor after the bail application is filed and notice is given, and do
the hearing the same day only after a short time of giving of the notice. The learned Judge can
always get the record from the Court of the learned Magistrate where the entire papers are
already available. Also, sometimes it may not be practicable to give notice at all and for this
purpose the hearing can be done after recording reasons for waiving the notice, as mentioned
in the proviso of Section 439(1). On the other hand, there may be cases where the learned Judge
may feel that in view of the seriousness of the offence or other facts a longer time should be
given to the Public Prosecutor before hearing the bail application. In all such cases in our
opinion the matter should be left to the discretion of the learned Judge hearing the bail
application and a direction for deciding the bail on the same day should not ordinarily be given
by this Court as that would be interfering in his discretion.

41. We again make it clear that the learned Sessions Judge in his discretion can hear and decide
the bail application under Section 439 on the same day of its filing provided notice is given to
the Public Prosecutor, or he may not choose to do so. This is entirely a matter in the discretion
of the learned Sessions Judge. There may also be cases where the learned Sessions Judge on
the material available before him may decide to grant interim bail as he may feel that while he
has sufficient material for giving interim bail he requires further material for grant of final bail.
In such cases also he can in his discretion, grant interim bail and he can hear the bail application
finally after a few days. All these are matters which should ordinarily be left to his discretion.