Mukesh Kumar Vs. State of U.P. and ors.

Mukesh Kumar vs State of U.P. and ors.

Disposition Petition dismissed Court Allahabad Decided Nov 04, 1999

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Citation: sooperkanoon.com/490763
Court: Allahabad High Court
Judge: B.K. Rathi, J.
Decided On: Nov 04, 1999
Case Number: Civil Misc. Application No. 5084 of 1999
Subject: Criminal
Disposition: Petition dismissed

Case Summary

AI-generated summary - not the official court judgment text.

- LAND ACQUISITION ACT, 1894 [C.A. No. 1/1894]. Section 4; [Sushil Harkauli, S.K. Singh & Krishna Murari, JJ] Acquisition of land Held, Court cannot issue a Writ of Mandamus directing the State Authorities to acquire a particular land. Land acquisition is not purely ministerial act to be performed by executive No...

Key legal issue: Criminal
Outcome / disposition: Petition dismissed
Acts & sections: Code of Criminal Procedure (CrPC) , 1974 - Sections 88

Parties & Advocates

Appellant / Petitioner

Mukesh Kumar

Advocate H.N. Sharma, Adv.

Respondent

State of U.P. and ors.

Advocate A.G.A.

Legal References

Acts: Code of Criminal Procedure (CrPC) , 1974 - Sections 88
Cases Referred: Niranjan Singh v. Prabhakar Rajaram Kharote
Reported In: 2000CriLJ1694

Excerpt

.....the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. orderb.k. rathi, j.1. these two petitions involved the same question of facts and law, therefore, there are being disposed of by this common order.2. the facts of both cases are that the opposite party no. 2 filed two separate complaints against the petitioners. in those complaints the petitioners moved applications to release them on bail under section 88, cr.p.c. without their appearance in court on the ground that the petitioners are ill. the trial court has rejected both the applications on the ground that unless the petitioners appear in the court no order for bail could be passed. aggrieved by that order the present petitions have been filed with the request that the order of the learned magistrate rejecting the applications be quashed and the magistrate be directed to decide the petitioners applications without enforcing the personal presence of the petitioners and treat their presence through counsel.3. i have heard sri h.n. sharma, learned counsel for the petitioners and learned a.g.a.4. learned counsel for the petitioners has placed reliance on the following observations of vishwa nath jiloka v. ist munsif lower criminal court, bahraich, 1995 (32) acc 603. the learned counsel has referred to the following observations of the judgment.it is thus obvious that practice followed in the courts of magistrate by even some members of the bar, namely, moving an application for surrender of the accused in a complaint case and then after the accused is taken in the custody applying for bail, is contrary to provisions of cr.p.c. and is altogether unwarranted. it should be immediately given up and the accused of the complaint cases should be assured that they will be honourably dealt with in the courts of the magistrates. in complaint cases when the accused appear before the magistrate in response to summons or warrants, the magistrates should themselves note the appearance of the accused in the proceedings and should thereafter pass appropriate order of bonds with or.....

Full Judgment

ORDER

B.K. Rathi, J.

1. These two petitions involved the same question of facts and law, therefore, there are being disposed of by this common order.

2. The facts of both cases are that the opposite party No. 2 filed two separate complaints against the petitioners. In those complaints the petitioners moved applications to release them on bail under Section 88, Cr.P.C. without their appearance in Court on the ground that the petitioners are ill. The trial Court has rejected both the applications on the ground that unless the petitioners appear in the Court no order for bail could be passed. Aggrieved by that order the present petitions have been filed with the request that the order of the learned Magistrate rejecting the applications be quashed and the Magistrate be directed to decide the petitioners applications without enforcing the personal presence of the petitioners and treat their presence through counsel.

3. I have heard Sri H.N. Sharma, learned counsel for the petitioners and learned A.G.A.

4. Learned counsel for the petitioners has placed reliance on the following observations of Vishwa Nath Jiloka v. Ist Munsif Lower Criminal Court, Bahraich, 1995 (32) ACC 603. The learned counsel has referred to the following observations of the judgment.

It is thus obvious that practice followed in the Courts of Magistrate by even some members of the bar, namely, moving an application for surrender of the accused in a complaint case and then after the accused is taken in the custody applying for bail, is contrary to provisions of Cr.P.C. and is altogether unwarranted. It should be immediately given up and the accused of the complaint cases should be assured that they will be honourably dealt with in the Courts of the Magistrates. In complaint cases when the accused appear before the Magistrate in response to summons or warrants, the Magistrates should themselves note the appearance of the accused in the proceedings and should thereafter pass appropriate order of bonds with or without sureties as required under Section 88, Cr.P.C.

5. I have carefully gone through the above authority and is of the view that it is of not help of the petitioners. It does not laydown that bail application should be disposed of without appearance of the accused in person. The provisions of Section 88, CPC are also contrary to the arguments of the learned counsel for the petitioners as it provides for taking of the bond if the person is present in the Court. Therefore, no order for taking bond can be passed unless the accused appear in person. The bail application can also not be disposed of till the accused appears in the Court and is in the custody of the Court. In this connection I am also refer to the Supreme Court decision in the case of Niranjan Singh v. Prabhakar Rajaram Kharote 1980 Crl. LJ 426 : AIR 1980 SC 785. It was held in this case that when an accused is not in custody of a particular Court, it is not open to it to grant bail.

6. Therefore, the requests made by the petitioners for grant of bail without their personal appearance in the Court, on the basis of appearance through counsel, cannot be allowed. I do not find any illegality in the order of the trial Court.

7. Both the petitions are, accordingly, dismissed.

Same Court & Year Allahabad · 1999 Same Parties Mukesh Kumar vs State of U.P. and ors. Same Subject Criminal Same Judge B.K. Rathi, J. Acts & Sections Code of Criminal Procedure (CrPC) , 1974 - Sections 88

Criminal