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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 \021the Act\022) 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

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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, \023Whoever contravenes\024  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:  \023The 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.\024  (14)            In Hazari Lal Gupta v. Rameshwar Prasad (1972)  1 SCC 452 this Court at SCC p. 455 pointed out:   \023In 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

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continuance of proceedings but the High Court does  not ordinarily inquire as to whether the evidence is  \021reliable or not\022. 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.\024        (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:  \023It 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.\024                                                 (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:   \023(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

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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.\024  (19)            We may observe here that despite this Court\022s  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 \026 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

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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\022ble 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\022) 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 :

\02325. 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.\024

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 :          \023Transport facilities from the residence to workplace and  back shall be provided free of cost and with adequate

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security.\024        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 :         \0233(1)        Nothing in this Act shall apply to \026

(h) person occupying positions of management in  any establishment.\024    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 :

\0232(h)        \023Employer\024 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;\024  

11.     Learned counsel for the respondent submitted that Section 30(1) of the  Act states that \023Whoever contravenes any of the provisions of Sections 4, 5 - -----, 25 and 39, shall, on conviction, be punished with fine\005\005\024.  She  submitted that the word \023whoever\024 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 \023whoever\024 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\022ble 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 \021rarest of the rare  cases\022.

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16.     The expression \021rarest of the rare cases\022 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\022ble 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 \023No 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\022s  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.\024 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\022 shows that a police officer is

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not bound to arrest even in a case of a cognizable offence.  When he should  arrest and when not is clarified in Joginder Kumar\022s 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\022s 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\022s novel ‘A Tale of Two  Cities\022 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 :      \023A man\022s 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.\024   

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:-                     \023The 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.\024   

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

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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\022s 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            \023For a self-respecting man, death is preferable to dishonour\024                 (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\022s 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

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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\022s 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\022s 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\022 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\022s case (supra).