JUDGMENT S. Rafat Alam, J.
1. Whether the person lodging a First Information Report (F.I.R;) with police regarding an offence or a crime has to be heard as necessary party before deciding a writ petition by an accused under Article 226 of the Constitution of India in this Court for quashing the said F.I.R. and whether the writ petition at the admission stage can be finally disposed of with the direction of stay of arrest of petitioner without inviting counter-affidavit from the informant and the investigating agency even when the F.I.R. discloses prima facie cognizable offence are the core questions in this reference which are of great significance and far reaching consequences as large number of writ petitions are filed in this Court for quashing of F.I.R. and stay of arrest.
2. Petitioners, Satya Pal and others have sought issuance of a writ of certiorari for quashing the F.I.R. dated 27-9-1998 on the basis of which Crime No. 798 of 1998 under Sections 420, 467, 468 and 471, I.P.C. was registered at Police Station Noida, Gautam Buddha Nagar, on several grounds stated in the petition apart from citing as precedence the order dated 3-11-1998 of a Division Bench of this Court in Mahesh Yadav's writ petition.
3. Mahesh Yadav, brother of petitioner Satya Pal filed Writ Petition No. 4658 of 1998 for quashing the very same F.I.R. before a Division Bench (of which one of us, S. Rafat Alam, J. was a member), which disposed of the writ petition on that very date, i.e. 3-11-1998 with the direction that the petitioners therein shall not be arrested in the aforesaid Case Crime No. 798 of 1998 under Sections 420, 467, 468 and 471, I.P.C. until submission of the report under Sections 173, Cr.P.C. subject to their full co-operation in investigation.
4. When the instant writ petition came up for admission before a Division Bench (comprising one of us, Justice Palok Basu and Hon'ble Mr. Justice P. K. Jain), two points emerged, first, whether the informant was required to be given notice before any relief could be granted by way of final order as was done by the earlier Division Bench on 3-11-1998 without providing an opportunity of filing counter-affidavit to the informant or the investigating agency, and second, whether the order of the Division Bench dated 3-11-1998 was contrary to the view taken of another Division Bench in Writ Petition No. 2588 of 1998 (Reported in 1999 (38) All Cri C 315) (Shamsul Islam alias Afroz v. State of U.P. and Ors.), (in which one of us, Hon'ble G. P. Mathur, J. was a>member). It has been held in Shamsul Islam's case that if the Court is of the opinion that the F.I.R. discloses commission of a cognizable offence and there are no grounds for quashing the same, no. direction for staying the arrest of the accused can be issued. Therefore, noticing the directly conflicting views the following questions were formulated by the said Division Bench for decision by a larger Bench.
(1) In case a cognizable report was lodged by an informant and during investigation accused come up with some or other reliefs through writ petition to the High Court, the informant should be made a party and heard before any final orders are passed in the aforesaid writ petition?
(2) Whether or not before passing the final order notice should be issued and reply should be called from the State, which is the controlling investigating agency for all investigations in the State of U.P. or any other agency in the State of U.P., though may be controlled by the Union of India for the time being, which may be investigating such an offence?
(3) Which of the two Division Bench decisions referred to above lays down the correct law?
5. Under the orders of the Hon'ble the Chief Justice, this Full Bench has been constituted for resolving the conflict and answer the three questions noted above.
6. We have heard Sri Ravindra Rai learned counsel for the petitioners and the learned Government Advocate appearing for the State-respondents. They have also filed their written submissions which are on record. The alleged facts giving rise to the F.I.R. and the alleged defence of accused as emerging from the petitions may be narrated here.
7. It appears that the informant is the owner of House No. C-281 located in Sector 19, Noida, district Gautam Buddha Nagar, a portion of which was under the occupation of petitioner No. 1, Satya Pal Yadav and his brother Mahesh Yadav and they are liv-ing as tenants on the rent payable on month to month basis. However, because of some dispute on the question of payment of rent, the informant moved an application under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction), Act, 1972 (for short the Act), in the Court of the IIIrd Addl. District Judge, Ghaziabad, as Suit No. 1016 of 1996 for their eviction. It is alleged that since the parties entered\ into a compromise, brought to the notice of the Court by application No. 56-A, the suit was accordingly, disposed of on 5-3-1998 in terms of the alleged compromise. However, on 27-9-1998 the impugned F.I.R. was lodged alleging that one R. K. Chaddha, resident of B-343-A, Sector 19, Noida made an offer to purchase the house in question and after negotiation between them a sum of Rs. 16 lakhs was agreed as price of the house out of which Rs. 35,000/- was paid to the informant as advance and the rest amount was agreed to be paid at the time of registration of the sale deed. R. K. Chaddha then came to the informant and induced him to sign some blank stamp papers for making application for permission to sell before the Noida authorities. The informant having believed the accused's word, signed those papers in good faith. The informant went to the house of R. K. Chaddha on 9-9-1998 at 10 O'clock to enquire about the permission for the sale and also to get payment of the balance of Rs. 15,65,000/-. At this, the said R. K. Chaddha threatened the informant with dire consequences if he visited him again and also threatened to shoot him. It has further been alleged in the F.I.R. that the petitioner Satya Pal Yadav, his brother Mahesh Yadav along with 2-3 other persons were also present in the house of R. K. Chaddha. It has also been alleged that the said R. K. Chaddha, Mahesh Yadav and Satya Pal Yadav by playing fraud, had prepared some forged documents with the intention to cheat and deceive him by filing suit against the informant.
8. On the other hand, the petitioners alleged defence is that the informant had agreed to sell the house in their favour under a written agreement. But the informant, in order to get higher price, started negotiating with other persons and also executed an agreement with one Siddhu Ram, son of Jaswant Singh and also wanted to disposes them. In view of the matter, Mahesh Yadav filed Civil Suit No. 998 of 1998 on 31-8-1998 in the Court of Civil Judge (Senior Division) Ghaziabad, for issuance of an injunction restraining the informant from transferring the house in question on the basis of the alleged subsequent agreement. The informant appeared in the aforesaid suit and filed written statement denying the allegations made in the plaint and as a retaliatory action the informant has lodged the impugned F.I.R. making false allegations to put pressure.
9. It is contended on behalf of the petitioner that under the provision of the Code, the informant has option either to give information to the Police under Section 154 of the Code about the alleged commission of a cognizable offence or he can file a complainant before the Magistrate under Section 190 of the Code. If the informant takes resort of Section 154 by lodging the F.I.R., his status becomes that of a witness and he has only to support the allegations made in the F.I.R. and thus, he is not a necessary party in a writ proceeding seeking quashing of the F.I.R. Reference has been made to Sections 320 and 321 of the Code and it has been submitted that in certain cognizable offences the complainant has not been given right to withdraw the prosecution because the offence is against the State. In this connection learned counsel for the petitioner a judgment of the Hon'ble Supreme Court in the case of Lt. Col. Prithipal Singh Bedi v. Union of India and others, reported in 1983 Cri. L. J. 647 : AIR 1982 SC 1413 and submitted that the Criminal Procedure Code does not give any right to the informant "to be heard" where the proceeding has been initiated after getting information under Section 154 or otherwise as provided under Section 157, Cr.P.C, if the same is challenged before this Court. In short, the submission is that since the informant has a statutory right to file complain, but if he chooses to give information to the Police under Section 154 of the Code instead of filing complaint, in that case he is not a necessary party in a criminal case in which the police may or may not investigate the case as after giving information to the police, the informant should be taken to have no subsisting interest in the matter. Learned counsel has also referred Sub-sections (d) and (r) of Section 2 of the Code and submitted that in view of the Explanation given in Sub-section (d) of Section 2, the report made by the Police Officer shall be deemed to be a complaint and the police office submitting such a report shall be deemed to be the complainant. Para 5 of the judgment of the apex Court rendered in the case of Madhusudan Singh v. State of Bihar, reported in 1997 SCC (Cri) 187 : AIR 1995 SC 1437 has also been referred to in order to submit that the F.I.R. is not a substantive piece of evidence and it can be used either to contradict or corroborate the maker thereof in the manner provided under the Evidence Act. Reference has also been made to judgment of the Apex Court rendered in the case of State of Haryana v. Bhajan Lal, reported in AIR 1992 SC 604 : 1992 Cri LJ 527 and it has been argued that when the allegations made in the F.I.R. even if they are taken at their face value and accepted to be true, do not prima facie constitute any cognizable offence giving right to the police to make investigation under Section 156 of the Code, then at the best, the allegations can be said to be constituting only civil wrong.
10. On the other hand, the learned Government Advocate vehemently opposed the submissions made on behalf of the petitioners and drew our attention to the various provisions of the Code to show that even after lodging the F. I. R. the informant does not lose his right to pursue the case and as such he is a necessary party to be heard where quashing of the F. I. R. is sought by an accused invoking writ jurisdiction of this Court. He has also placed reliance on a judgment of a Full Bench of seven Hon'ble Judges of this Court in the case of Ramlal Yadav v. State of U. P., reported in 1989 ACC 181 : 1990 All LJ 47. Reliance has also been placed on a judgment of the Apex Court rendered in the case of Janta Dal v. S. S. Chowdhary, reported in AIR 1993 SC 892 : 1993 Cri LJ 600, State of Haryana v. Bhajan Lal, reported in AIR 1992 SC 604 : 1992 Cri LJ 527; State of Maharashtra v. Ishwar Piraji Kalpatri, reported in 1996 SCC (Cri) 150 : AIR 1996 SC 722; and C. B. I. v. Duncan Agro Industries reported in 1996 SCC (Cri) 1045 : AIR 1996 SC 2452 : 1996 Cri LJ 35.
11. In order to decide the issues cropping up, a quick look at some relevant provisions of the Criminal Procedure Code is necessary, Chapter XII of the Code deals with information to the police about the commission of offences and power of the police to investigate begins upon receiving of such information or otherwise as provided under Section 154 of the Code and thus those provisions of the Code are extracted hereinafter.
154. Information in cognizable cases : (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
(2) A copy of the information as recorded under Sub-section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrievect by a refusal on the part of an officer in charge of a police station to record the information referred to in Sub-section (1) may send the substance of such information in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any Police Officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.
157. Procedure for investigation : If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and if necessary, to take measures for the discovery and arrest of the offender :
Provided that
(a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in-charge of a police station need not proceed in person on depute a subordinate officer to make an investigation on the spot.
(b) if it appears to the officer in-charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.
(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to Sub-section (i), the officer in-charge of the police station shall state in his report his reasons for not fully complying with the requirements of that Sub-section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as way be prescribed by the State Govt. the fact that he will not investigate the case or cause it to be investigated.
173. Report of police officer on completion of investigation :
(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2)(i) As soon as it is completed, the officer in-charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government stating
(a) the nature of the parties;
(b) the nature of the information;
(c) the names of the person who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without Sureties;
(g) whether he has been forwarded in custody under Section 170.
(ii) The Officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him to the person, if any, by whom the information relating to the offence was first given.
12. Sub-section (1) of Section 154 of the Code provides about the information to be given to the police station, which sets the investigation in motion. Sub-section (2) of Section 154 gives a right to the informant to receive a copy of such information free of cost. Sub-section (3) of Section 154 provides that in the event of refusal by an officer in-charge of a police station to record the information under Sub-section (1), the informant may send the substance of such information in writing by post to the concerned Superintendent of Police who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case or direct any subordinate police officer to make investigation in the manner provided in the Code.
13. Section 157 of the Code provides the procedure for investigation by the Police. Sub-section (1) of Section 157 lays down that if from information received or otherwise an officer in-charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed, to the spot, to investigate the facts and circumstances of the case, and if necessary, to take measures for the discovery and arrest of the offender. Proviso (a) of Section 157, however, provides that if information regarding commission of such offence is given against any person by name and the alleged offence or the case is not of serious nature, the officer in-charge of the police station need not proceed in person but can depute a subordinate officer for the investigation on the spot. Proviso (b) of Section 157 of the Code provides that where the officer in-charge of a police station finds that there is no sufficient ground for entering on an investigation, he shall not investigate the case. Subsection (2) of Section 157 is significant. It casts a duty upon the officer in-charge of the police station to state in his report reasons for not fully complying with the requirement of Sub-section (1) and where it appears to him that there is no sufficient ground for entering on an investigation, he is required forthwith to notify the informant. Thus, Section 157 imposes a duty upon the officer in-charge of the station to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. If, however, he is of the opinion that there is no sufficient ground for entering on any investigation, he may not investigate the case, but in such a situation, he shall immediately inform the informant about his opinion that the alleged cognizable offence or offences do not require any investigation. He will, however enter the information in the case diary and comply with the requirement of Sub-section (2) of Section 157, i.e., send a report to the Magistrate empowered to take cognizance stating his reasons for not entering into the investigation.
14. The object and purpose of Sub-section (2) of Section 157 of the Code is that if the police refuses to investigate the offence in a mala fide or arbitrary manner, the informant may challenge such refusal or in action by invoking the provisions of the Code or the Constitution of India for seeking directions to the police to act in accordance with the law.
15. Section 173 provides that as soon as the investigation is complete, the officer in-charge of a police station shall forward the same to the Magistrate empowered to take cognizance of the offence on the police report in the form prescribed by the State Government giving particulars as to whether any offence appears to have been committed and if so, by whom. Sub-clause (ii) of Sub-section (2) of Section 173 casts a further duty upon the police officer to communicate the action taken by him to the informant in the manner prescribed by the State Government. Hence it confers a right on the informant to know the actions taken by the police on his F. I. R.
16. Therefore, on scrutiny of the aforesaid provisions of the Code, it is evident that after lodging the F. I. R. the informant's right to pursue investigation or to know the result of such investigation is not lost. He has right and locus to pursue the investigation by the Police upon his information given under Section 154 of the Code, so that the offence is lawfully investigated and the culprit is brought to book for being tried and punished by the competent Court.
17. In the case of Bhagwant Singh v. Commissioner of Police, reported in AIR 1985 SC 1285 : 1985 Cri LJ 1521, the Apex Court has taken the view that when a Magistrate upon submission of the report under Sub-section (2)(i) of Section 173, decides not to take cognizance of the offence and to drop the proceeding on the view that there is no sufficient ground for proceeding against some of the persons mentioned in the F. I. R., he must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report. Relevant portion of the judgment is reproduced below (at page 1288 of AIR) :
There can, therefore, be no doubt that when, on a consideration of the report made by the Officer in-charge of a police station under Sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are, accordingly, of the view that in a case where the Magistrate to whom a report is forwarded under Sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient" ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.
18. Thus where the Final Report submitted under Section 173 of the Code comes before the Magistrate for consideration, he is bound to issue notice and give opportunity of hearing to the informant.
19. Besides, under Sub-section (2) of section 301 of the Code, the informant or any private person can instruct a pleader to prosecute any person in any Court under the direction of the Public Prosecutor and can also file written submissions after the evidence is closed, with the permission of the Court. Again, in the event of acquittal, the informant can approach the State Government for filing appeal against acquittal and can himself file revision against the order of acquittal. Thus, the informant would be vitally affected if the F. I. R. is quashed and should be afforded an opportunity to defend it by rebutting his prayer for its quashing.
20. Reliance on the explanation to subsection (d) of Section 2 of the Code is misplaced. The explanation refers to the report of the police submitted the Magistrate in a non-cognizable offence, although the investigation proceeded on the presumption that the alleged offence is a cognizable one. Subsection (d) of Section 2 of the Code reads as under:
2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether known of unknown, has committed an offence but does not include a police report;
Explanation : A report made by a Police Officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.
21. The explanation provides that the report of a police officer in a case which after investigation, discloses the commission of a non-cognizable offence, shall be deemed to be complaint and the police officer submitting the report shall be deemed to be complainant for the purposes of Section 195(i)(iii). The Magistrate after taking cognizance of the offence upon such report of the police, which would be treated as complaint, may either proceed to try the case or may himself make enquiry or may direct the police to make investigation as provided under Section 202(1) of the Code. The explanation does not refer to the report of the police officer submitted after investigation under Section 173 of the Code regarding the commission of a cognizable offence.
22. The reliance on the judgment of the Apex Court in the case of Lt. Col. Prithipal Singh Bedi v. Union of India (supra), is also of no help to the petitioners as it does not deal with the point in issue, rather in the case of Bhagwant Singh v. Commissioner of Police (supra), it has been held by the Apex Court that where upon consideration of the police report under Section 173 of the Code the Magistrate decides not to take cognizance of the offence he must give an opportunity of hearing to the informant while considering the report. Similarly, the other judgments cited by the learned counsel for the petitioners are also not relevant for deciding the questions referred.
23. It is a settled legal proposition that the person who may be adversely affected or prejudiced, would be a necessary party in the petition or proceedings before the High Court under Article 226 of the Constitution which should not pass the adverse order or judgment unless that person is before it as respondent. In the case of Prabodh Verma v. State of U.P. reported in AIR 1985 SC 167 : 1984 All LJ 931, the Apex Court under para 50(1) has held as under (at page 953 of All LJ) :
A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the person who would be vitally affected by its judgment being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non joinder of necessary parties.
24. Therefore, in view of the provisions of the Code referred to above and also in view of the law as has been laid down by the Apex Court in the case of Bhagwant Singh v. Commissioner of Police (supra), the respondents having reported the offence to the police under Section 154 of the Code has not only the right to know its result or outcome of the investigation made on his information but has also a right to insist for effective and fair investigation. Therefore, having considered the submissions made by the parties through their respective counsel and also having examined the various provisions of the Code and the law as laid down by the Apex Court, it is hereby held that where an accused seeks quashing of the F. I. R. regarding cognizable offence by invoking writ jurisdiction, the informant should be made a party to be afforded an opportunity of hearing before passing the final order. The question No. 1 referred to this Bench is accordingly answered in the affirmative.
25. Now adverting to question No. 2, the provisions of the Rules of the Court contained in Chapter XXII on which reliance has been placed by the learned counsel for the petitioners, requires to be examined. This Chapter deals with the procedure for entertaining and disposed of Writ Petition under Article 226 of the Constitution (other than a writ in the nature of habeas corpus). Rule 1 thereof provides the mode of filing applications in certain cases before Division Bench and in some matters before a Single Bench. Rule 2 provides about notice and its service on parties. It reads as under :
2. Notice : (1) If the Court does not find sufficient reasons to admit the application it may reject it. Where the application is not so rejected; notice thereof shall be served on such opposite-parties named in the application and on such other persons, if any, as the Court may direct: Provided that unless the Court otherwise directs it shall not be necessary to serve any notice on the parties represented by the Government Advocate or the Standing Counsel, as the case may be :
Provided further that where notice or motion has already been served upon the Government Advocate or Standing Counsel, as the case may be, and there is no other party to be served, the Court may dispose of it on the merits at the very first hearing.
(2) Where the application relates to any proceeding in or before a Court and the object is either to compel the Court or an officer thereof to do any act in relation to such proceeding or to quash it or any order made therein, notice thereof shall also be served on such Court or officer as well as the other parties to such proceeding, and where any objection is taken with respect to conduct of Judge, also on the Judge.
(3) It at the hearing of the application the Court is of opinion that any person who ought to have been served with notice of the application has not been so served, the Court may order that notice may also be served on such person and adjourn the hearing upon such terms, if any, as the Court may consider proper.
(4) Every notice under this Rule shall be accompanied by copies of the application and the affidavit, such copies supplied by the applicant.
(5) The opposite party shall at the time of putting in appearance through counsel or otherwise file in Court his registered address. In default address given in the proceeding by the other side will be deemed his registered address.
(6) Order III, Rule 4, C. P. C. shall apply to proceedings under this Chapter.
26. Relying on the second proviso of sub-rule (1) it has been sought to be argued that a writ petition can be disposed of on merit at. the very first hearing even without inviting counter- affidavit. The second proviso enables the Court to dispose of the writ petition on merit at the very first hearing, provided the notice of motion has already been served upon the Government Advocate or the Standing Counsel, as the case may be, and there is no other party to be served. Therefore, in a writ petition where all the parties are represented through the Government Advocate or the Standing Counsel and there is no other party to be served, in that case the Court in its discretion can dispose of the writ petition on merits at the first hearing. It is an enabling provision to enable the Court to exercise its discretion for the disposal of cases on the first day of hearing if all the parties are represented through the Government Advocate or the Standing Counsel.
27. Rule 4 provides that an application shall be heard not less than eight clear days, after the service of notices under Rule 2 and the counter- affidavit is to be filed within three weeks unless otherwise provided, and the rejoinder within two weeks from the date of service of the counter- affidavit.
28. The practice prevalent in this Court is that the petition or an application is placed before the appropriate Bench, Single Judge or Division Bench, having been assigned the jurisdiction concerned, on the next day of filing. Thereafter in suitable cases which require reply from the State, reasonable time is granted to the learned Standing Counsel for filing counter-affidavit and notice is issued to other opposite-parties. If no factual aspect is involved and the opposite parties are represented by the Standing Counsel or the Government Advocate, suitable cases are disposed of finally at the admission stage.
29. The investigation and submission of report after investigation is a statutory function and a statutory duty cast upon the police. Therefore, in a suitable case while exercising the extraordinary jurisdiction under Article 226 of the Constitution for quashing the F. I. R. and the investigation, the concerned investigating agency may be required by the Court to place on record whether any prima facie evidence has been collected during the investigation about the commission of the cognizable offence suggesting involvement of the accused-petitioner. If any relevant fact or evidence has been suppressed by the petitioner, it may also be indicated before this Court through the counter-affidavit. It is, therefore, hereby held that where the petition challenging the F. I. R. prima facie satisfies the exercise of that extraordinary power by the Court, it shall be necessary for the Court to direct the investigating agency to file affidavit countering the allegations in the petition. Question No. 2 is, therefore, answered in affirmative.
30. Question No. 3 refers to the correctness, of either of the two divergent views expressed by two different Division Bench decisions of this Court referred to above. In the case of Shamsul Islam alias Afroz v. State of U.P. and others, a Division Bench of this Court vide order dated 28th July, 1998 (reported in 1999 (38) All Cri C 315) held that if the Court is of the opinion that the F. I. R. discloses commission of a cognizable offence and there are no grounds for quashing the same, no direction for staying arrest of the accused can be issued. However, the other Division Bench in the case of Mahesh Yadav v. State of U. P., vide order dated 3-11-1998 in Writ Petition No. 4658 of 1998, disposed of the writ petition with the direction that the two petitioners shall not be arrested in Case Crime No. 798 of 1998, under Sections 420, 467, 468 and 471, I. P. C. until submission of the report under Section 173, Cr. P. C. subject to their full co-operation in investigation i.e. F. I. R. was not quashed and the final order was passed on the very day the petition was moved.
31. Sri Ravindra Rai, learned counsel appearing for the petitioners while addressing on question No. 3, submitted that the High Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution, may interfere and pass appropriate order in criminal matters to secure the ends of justice and to prevent the encroachment upon the personal liberty of a person by the Executive except in accordance with law. Thus, he contended that in an appropriate case this Court for the ends of justice can stay arrest of the accused even though the F. I. R. discloses commission of a cognizable offence, because in the State of U. P., remedy under Section 438 of the Code to seek anticipatory bail is not available. It is stated that the validity of Section of the U. P. Amendment Act, 1976 (U. P. Act No. 16 of 1976) though upheld by the Supreme Court in the case of Kartar Singh reported in 1994 (3) SCC 569 : 1994 Cri LJ 3139 is again under challenge before the Hon'ble Supreme Court in the case of Jagat Prasad v. State of U. P., on the grounds, inter alia, that it is violative of Articles 14, 19 and 21 of the Constitution, and the Apex Court considering the importance of the question, has referred the matter to a Constitution Bench vide order dated 8-8-1996, reported in 1998 SCC Vol 8, page 632. He also referred judgments of the Apex Court rendered in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate and reported in AIR 1998 SC 128 : 1998 Cri LJ 1 Vineet Narain v. Union of India AIR 1998 SC 889 : 1998 Cri LJ 1208 and State of Haryana v. Chowdhary Bhajan Lal AIR 1992 SC 604 : 1992 Cri LJ 527 and submitted that the Division Bench judgment dated 3-11-1998 in Mahesh Yadav and Ors. v. State of U.P. and Ors., lays down the correct law as the informant has not been adversely affected inasmuch as the F. I. R. or the investigation has not been quashed and only arrest of the accused has been stayed till submission of the report under Section 173, Cr. P. C. subject to their full co-operation in investigation.
32. On the other hand, the learned Government Advocate submitted that the defence of an accused is not to be considered in writ proceeding for the purpose of quashing of the F. I. R., and if the allegation made in the F. I. R., discloses commission of a cognizable offence, it cannot be quashed nor any interim relief can be granted because the writ jurisdiction of the High Court cannot be invoked only for the purpose of getting interim relief which cannot be granted in the final order. He further submitted that the decision of the Division Bench of this Court in the case of Shamsul Islam Afroz v. State of U. P. and others lays down the correct law. Reference was also made of the judgment of the Apex Court reported in 1995 SCC (Cri) 1059 : 1995 AIR SCW 4100 (Rupan Deol Bajaj v. K. P. S. Gill); 1995 Supp (II) SCC 724 (G. L. Didwani v. I. T. O.), 1996 SCC (Cri) 497 : 1996 All LJ 601 : 1996 Cri LJ 1878 (State of U. P. v. O. P. Sharma); 1996 SCC (Cri) 443 : 1996 All LJ 600 : 1996 Cri LJ 1877 (Mustaq Ali v. Mohd. Habibur Rahman); 1996 SCC (Cri) 628 : 1996 Cri LJ 1372 (State of Bihar v. Rajendra Agarwal); 1997 SCC (Crl) 415 (Rashmi Kumar v. Mahesh Kumar); 1997 SCC (Cri) 1073; (Nagpur Steel v. Radhy Krishna); 1994 SCC (Crl) 500 (State of Punjab v. Dharam Veer Singh Jethi); and 1994 SCC (Cri) 546 : 1995 Cri LJ 2640 (Santosh De v. Archana Guha), and argued that where a cognizable offence is disclosed in the F. I. R. or the complaint, no interference is to be made in exercise of writ jurisdiction or inherent jurisdiction of this Court with the investigation and the F. I. R. cannot be quashed.
33. The scope of interference by this Court either in exercise of extraordinary power under Article 226 of the Constitution or its inherent power under Section 482, Cr. P. C. with the investigation of a cognizable offence has been examined in a number of decisions of the Hon'ble Supreme Court, as well as of the different High Courts. It has been consistently held that where the allegations in the F. I. R. taken at the face value and accepted in entirety, do not constitute any cognizable offence; the F. I. R. and the investigation thereon may be quashed.
34. In the case of State of Haryana v. Chowdhry Bhajan Lal AIR 1992 SC 604 : 1992 Cri LJ 527, the Apex Court having examined its various pronouncements on the subject and the relevant provisions of the Code, laid down the guidelines by way of illustration wherein the extraordinary power under Article 226 of the Constitution or the inherent power under Section 482 of the Code could be exercised either to prevent abuse of the process of any Court of otherwise to secure the ends of justice. The guidelines by way of illustrations given by the Apex Court are extracted below (at page 629 of AIR) :
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 discloses a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate with the purview of Section 155(2) of the Code.
3) Where the uncontroversial 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 of 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.
35. However, as held by the Supreme Court, these guidelines are illustrative and not exhaustive because it is not possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulas and thus, it would depend upon the facts and circumstances of each case for exercise of such power. The Apex Court has, however, given a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and in the rarest of rare cases. It has been observed by the Apex Court as follows :
We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F. I. R. or the complaint and that the extraordinary or inherent powers do not confer any arbitrary jurisdiction on the Court to act accordingly to its whim or caprice.
36. The above view of the Supreme Court has again been reiterated in the case of M/ s. Pepsi Foods Ltd. v. Special Judicial Magistrate (supra); Roopan Deol Bajaj v. K. P. S. Gill (supra), Smt. Rashmi Kumar v. Mahesh Kumar Bhada, 1997 SCC (Cri) 415; and Central Bureau of Investigation v. Duncan Agro Industries Ltd., 1996 SCC (Crl) 1045 : AIR 1996 SC 2452 : 1996 Cri LJ 3501.
37. Thus, where the allegations made in the F. I. R. and on a consideration of the relevant materials if the Court is satisfied that an offence is disclosed, the Court normally will not interfere with the investigation unless there is strong grounds or compelling reasons requiring interference in the interest of justice. However, upon consideration of relevant materials if the Court is satisfied and no offence is disclosed, it will be the duty of the Court to interfere with investigation so that the alleged accused may not be unnecessarily subjected to harassment and humiliation.
38. The Apex Court while considering the power of arrest and its exercise by police, as compared with the life and personal liberty of a person which is protected under Article 21 of the Constitution, in the case of Jogendra Kumar v. State of U. P. reported in 1994 (4) SCC 260 : AIR 1994 SC 1349 : 1994 Cri LJ 1981 has held as under (at page 1353 of AIR) :
No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest in 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 or 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 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 recommendations of the Police Commission merely reflect 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 some 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 person to attend the Station House and not to leave the Station without permission would do.
39. However, the aforesaid observation of the Hon'ble Supreme Court have been made on the peculiar facts and circumstances of Jogendra Kumar's case which are different from the present one.
40. Section 157 of the Code empowers police to arrest offender provided he is satisfied about the genuineness and bona fides of the allegations that it is necessary for proper investigation and to investigate the offence to detect the offender. Section 41 of the Code lays down the circumstances or conditions when the police may arrest without warrant any person who has been concerned in any cognizable offence or against whom a reasonable complaint or credible information has been received or a reasonable suspicion exists of his having been so concerned. There is no doubt that arrest is part of investigation, the police or the investigating agency has every authority to investigate a case where cognizable offence has been reported. But while exercising power of arrest they are required to be satisfied about the genuineness and bona fides of the allegations of the complaint and about the necessity of arrest of the person concerned. In other words, there must be reasonable justification for effecting such arrest, which is necessary for proper investigation.
41. A Full Bench of this Court consisting of 7 Judges (of which one of us Hon'ble Palok Basu, J. was also a Member), while, considering the question as to whether before submission of report by the police under . 173 of the Code the High Court can interfere with investigation in its inherent jurisdiction under Section 482 of the Code, held as under :
In our opinion the High Court has no inherent power under Section 482, Cr. P. C. to interfere with the arrest of a person by a police officer even in violation of Section 41(l)(a), Cr. P. C. either when no offence is disclosed in the first information report or when the investigation is mala fide as the inherent powers of the Court to prevent the abuse of the process of the Court or to otherwise secure the ends of justice come into play only after the charge sheet has been filed in Court and not during investigation which may even be illegal and unauthorized. If the High Court is convinced that the power of arrest by a police officer will be exercised wrongly or mala fide in violation of Section 41(1)(a), Cr. P. C, the High Court can always issue a writ of mandamus under Article 226 of the Constitution restraining the police officer from misusing his legal power.
42. Therefore, in appropriate cases if this Court is convinced that the power of arrest will be exercised wrongly or mala fidely or in violation of Section 41(l)(a) of the Code, writ of mandamus can be issued restraining the police from misusing its legal power. However, the order staying arrest may be granted sparingly in exceptional cases and with circumspection that too in the rarest of rare cases keeping in mind that any relief, interim or final during investigation which has the tendency to slow or otherwise hamper the investigation, should not be granted. Our opinion further gains support from a recent judgment of the Apex Court in the case of M/s. Pepsi Foods Ltd. v. Special Judicial Magistrate (supra), wherein while dealing with the power and jurisdiction of this Court under Article 226 of the Constitution and Section 482 of the Code, it has been observed as follows :
The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised in invoking these powers.
43. Having considered the law as has been laid down by the Apex Court and the provisions of the Code, in our opinion the Division Bench decision in the case of Shamsul Islam alias Afram v. State of U. P. and Ors., lays down the correct law. This Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution, is not debarred from granting any interim relief by way of stay of arrest during the pendency of the writ petition to prevent miscarriage of justice and to protect the life and liberty as guaranteed under Articles 21 and 22 of the Constitution. But the writ petition cannot be disposed of merely in terms of the interim order. It is a settled legal position that Article 226 of the Constitution cannot be used for the purposes of giving interim relief as the only and final relief. Reference may be made to a decision of the Constitution Bench of the Apex Court in the case of State of Orissa v. Madan Gopal Rungta, reported in AIR 1952 SC 12, wherein it has been held as follows (at page 14) :
Article 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application. The directions had been given here only to circumvent the provisions of Section 80, Civil P. C, and that was not within the scope of Article 226. An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in suit or proceeding. If the Court was of opinion that there was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not for the purpose of facilitating the institution of such suit, issue directions in the nature of temporary injunctions, under Article 226 of the Constitution. The language of Article 226 does not permit such an action.
44. The Division Bench decision in the case of Mahesh Yadav (supra) is only an ex parte order in terms whereof the writ petition stood finally disposed of without calling upon the informant and the investigating agency which therefore, did not lay down the correct law. The third question stands thus answered.
45. Let the petition be placed before the Division Bench with our answers to the questions referred to us.