JUDGMENT B.S. Chauhan, J.
ISSUES BEFORE THE FULL BENCH :
1. A Division Bench of this Court vide order dated 22.08.2000, referred two questions to a larger Bench for determination/answer, namely;
1. Whether arrest during investigation can be stayed by this Court only in rarest of rare cases as observed in Satyapal v. State of U.P. and Ors. 2000 Cr.LJ. 569, or according to the criteria laid down by the Supreme Court in Joginder Kumar v. State of U.P. and Ors. ?
2. Whether the Full Bench in Satyapal's case was right in holding that Joginder Kumar's case was delivered on its own peculiar facts and circumstances and hence does not lay down any legal principles relating to the power of arrest and the power of stay to arrest by this Court?
BACKGROUND OF THE CASE AND CONTENTIONS ON BEHALF OF THE PARTIES :
2. The petitioner Ajit Singh filed this writ petition for quashing the First Information Report dated 19.05.2000 (Annex.l) registered as Case Crime No. 144 of 2000, under Sections 323, 504, 506 Indian Penal Code and Section 3(1)(x) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Kuthan, District Jaunpur. When the matter came up for hearing, it was submitted by the learned Counsel for the petitioner before the Division Bench that the F.I.R. had been filed at a belated stage on 19.05.2000 in respect of the incident alleged to have occurred on 24.03.2000 and the petitioner apprehended the arrest by the investigating agency at the behest of respondent No. 3 Hansraj, the complainant. Stay of arrest was prayed contending that the arrest was likely to be made in contravention of the law laid down by the Hon'ble Apex Court in Joginder Kumar's case wherein it has been held that the arrest should not be made in every case in routine and it may be made only where there is a justification for making the arrest and necessary in the facts and circumstances of that case. The contention was opposed by the learned Government Advocate placing reliance upon the Full Bench judgment of this Court in Satyapal's case wherein it has been held that arrest should be stayed only in rarest of rare cases and not as a matter of routine, observing that the Hon'ble Apex Court decided the case of Joginder Kumar's case on the facts of that case and it does not lay down the law for universal application. The Division Bench was of the opinion that the Full Bench had made observations in contravention of the law laid down by the Hon'ble Apex Court which was not permissible in view of the provisions of Article 141 of the Constitution of India and, therefore, referred the aforesaid two questions to the larger Bench.
3. We have heard Shri Ramender Asthana, Shri S.P. Shukla and Shri Prem Prakash, learned Counsel for the petitioner and Shri V.S. Mishra, learned Government Advocate for the State.
4. Learned Counsel for the petitioner have submitted that the judgment of the Full Bench in Satyapal's case does not lay down the correct law that this Court should stay arrest only in rarest of rare cases as it is in contravention of the law laid down by the Hon'ble Apex Court in Joginder Kumar's case and as the law laid down by the Hon'ble Apex Court is binding on all Courts in view of the provisions of Article 141 of the Constitution of India, it was not permissible for the Full Bench to say that the guidelines issued in Joginder Kumar's case need to be confined to the peculiar facts and circumstances of that case, which were distinguishable from the facts of the case before the Full Bench. As the arrest may destroy the reputation of a person and it brings humiliation, it is violative of Articles 14 and 21 of the Constitution of India and this Court, being the custodian of taw, has a solemn duty to protect the rights of the persons.
5. On the contrary, Shri V.S. Mishra, learned Government Advocate has submitted that the Full Bench of this Court in Satyapal's case has not made any observations in contravention of the guidelines issued in Joginder Kumar's case as the issues involved in both the cases were entirely different. In Joginder Kumar, the Hon'ble Apex Court dealt with the power of the police to arrest and the guidelines have been issued as under what circumstances the arrest should be made. On the other hand, the Full Bench of this Court in Satyapal's case considered the scope of interference with investigation by this Court, therefore, it cannot be held that this Court had made any observation in contravention of the law laid down in Joginder Kumar's case.
SCOPE OF POLICE POWERS OF INVESTIGATION AND COURT'S POWERS:
6. There can be no quarrel with the settled legal proposition that arrest is a part of investigation and it is not permissible to agitate that the Court can stay the arrest unless the Court is of the view that in the peculiar facts of a particular case, it is necessary to interfere with the investigation. That the powers of investigation fall within the exclusive domain of the police, and at this stage courts cannot intervene unless the police acts wholly without jurisdiction by seeking to investigate an non-cognizable offence without the permission of a Magistrate, or where there may be some other statutory restriction on investigation. It is only after submission of the charge sheet, if the FIR and investigation do not disclose commission of a cognizable offence, or according to other well settled principles delineated by the apex Court and this Court in various decisions, can the High Court grant some appropriate relief.
7. In State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. , the Hon'ble Supreme Court observed as under:
The sum and substance of the above deliberation results in a conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution.
(Emphasis added)
8. The extent and scope of powers of the courts and police respectively have also been spelt out by the Hon'ble Supreme Court in H.N. Rishbud and Anr. v. State of Delhi , observing that investigation usually starts on information relating to the commission of an offence given to an officer in charge of a police station and recorded under Section 154 of the Code. If from information so received or otherwise, the officer in charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has 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. Thus investigation primarily consists in the ascertainment of the facts and circumstances of the case. By definition, it includes "all the proceedings under the Code for the collection of evidence conducted by a police officer". For the above purposes, the investigating officer is given the power to require before himself the attendance of any person appearing to be acquainted with the circumstances of the case. He has also the authority to examine such person orally. Under Section 155 the officer in charge of a police station has the power of making a search in any place for the seizure of anything believed to be necessary for the purpose of the investigation. The search has to be conducted by such officer in person. The investigating officer has also the power to arrest the person or persons suspected of the commission of the offence under Section 54 of the Code. A police officer making an investigation is enjoined to enter his proceedings in a diary from day-to-day. Where such investigation cannot be completed within the period of 24 hours and the accused is in custody he is enjoined also to send a copy of the entries in the diary to the Magistrate concerned. If, upon the completion of the investigation it appears to the officer in charge of the police station that there is no sufficient evidence or reasonable ground, he may decide to release the suspected accused, if in custody, on his executing a bond. If, however, it appears to him that there is sufficient evidence or reasonable ground, to place the accused on trial, he is to take the necessary steps therefore under Section 170 of the Code, In either case, on the completion of the investigation he has to submit a report to the Magistrate under Section 173 of the Code in the prescribed form furnishing various details.
9. Further, the powers of the police to effect an arrest under Section 41 Cr.P.C has been clarified in M.C. Abraham and Anr. v. State of Maharashtra and Ors. :
In the first place, arrest of an accused is a part of the investigation and is within the discretion of the investigating officer. Section 41 of the Code of Criminal Procedure provides for arrest by a police officer without an order from a Magistrate and without a warrant. The section gives discretion to the police officer who may, without an order from a Magistrate and even without a warrant, arrest any person in the situations enumerated in that section. It is open to him, in the course of investigation, to arrest any person who has been concerned with any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned. Obviously, he is not expected to act in a mechanical manner and in all cases to arrest the accused as soon as the report is lodged. In appropriate cases, after some investigation, the investigating officer may make up his mind as to whether it is necessary to arrest the accused person. At that stage the court has no role to play. Since the power is discretionary, a police officer is not always bound to arrest an accused even if the allegation against him is of having committed a cognizable offence. Since an arrest is in the nature of an encroachment on the liberty of the subject and does affect the reputation and status of the citizen, the power has to be cautiously exercised. It depends inter alia upon the nature of the offence alleged and the type of persons who are accused of having committed the cognizable offence. Obviously, the power has to be exercised with caution and circumspection.
(Emphasis added).
10. In M. Narayandas v. State of Karnataka and Ors. , the Apex Court held that at the stage when a report of a cognizable offence under Section 154(1) of the Code is lodged, the concerned police officer is not to refuse to register the case or to embark on an enquiry about the genuineness and reliability of the allegations. The investigation at this stage is the exclusive prerogative of the police officer, and the Courts do not have any power to intervene with the investigation so long as the police officer acts according to his statutory powers. It is only on failure to investigate a cognizable offence that the competent Magistrate can issue a direction to the competent police officer to investigate the offence or to inquire into the offence himself or through a subordinate magistrate. The Court held as under:
The core of the above sections, namely, 156, 157 and 159 of the Code is that if a police officer has reason to suspect the commission of a cognizable offence, he must either proceed with the investigation or cause an investigation to be proceeded with by his subordinate; that in a case where the police officer sees no sufficient ground for investigation, he can dispense with the investigation altogether; that the field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation and that it is only in a case wherein a police officer decides not to investigate an offence, the Magistrate concerned can intervene and either direct an investigation or in the alternative, if he thinks fit, he himself can, at once proceed or depute any Magistrate subordinate to him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code.
(Emphasis supplied)
11. In Adri Dharan Das v. State of West Bengal AIR 2005 SC 1057, the necessity of arrest for various aspects of investigation have been clarified by the Hon'ble Supreme Court observing as follows:
Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code.
(Emphasis added).
12. The scope of interference at the stage of investigation is no more res Integra as it has been considered by the Hon'ble Supreme Court time and again. In Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18, the Privy Council considered the issue while dealing with the statutory rights of the police under Sections 154 and 156 of the Code of Criminal Procedure (hereinafter called the 'Cr.P.C.') for investigation of a cognizable offence and made the following observations:
So it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complimentary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, the Court's functions begin when a charge is preferred before it and not until then
(Emphasis added).
13. Similarly, in Abhinandan Jha and Ors. v. Dinesh Mishra , the Hon'ble Apex Court considered the same provision of Cr.P.C. and held that the field of investigation of any cognizable offence is exclusively within the domain of the investigating agency over which the Courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation.
14. In State of Bihar and Anr. v. J.A.C. Saldanna and Ors. , the Hon'ble Apex Court while dealing with the powers of investigation of a police officer under Cr.P.C, observed as under:
There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively for the Executive through the police department, superintendence over which vests in the State Government. Once it investigates and finds an offence having been committed, it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the Investigating Officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code, its duty comes to an end.
(Emphasis added).
15. Thus, in view of the above, it is evident that generally investigation falls within the exclusive domain of the Executive and scope of judicial review is very limited in exceptional cases.
'AUDI ALTERAM PARTEM' RULE OR RIGHT OF ACCUSED TO NOTICE AT INVESTIGATION STAGE:
16. It has been observed in Union of India and Anr. v. W.N. Chadha that at the stage of investigation and initial arrest the rule of audi alteram partem has no application and the accused has no right of notice or hearing before his arrest, if any, in a cognizable case. Nor the accused has any right as to choose the manner and method of investigation save under certain exceptions provided in the Code itself. The Court held as under:
True, there are certain rights conferred on an accused to be enjoyed at certain stages under the Code of Criminal Procedure - such as Section 50 whereunder the person arrested is to be informed of the grounds of his arrest and to his right of bail and under Section 57 dealing with person arrested not to be detained for more than 24 hours and under Section 167 dealing with the procedure if the investigation cannot be completed in 24 hours - which are all in conformity with the 'Right to Life' and 'Personal Liberty' enshrined in Article 21 of the Constitution and the valuable safeguards ingrained in Article 22 of the Constitution for the protection of an arrestee or detenu in certain cases. But so long as the investigating agency proceeds with his action or investigation in strict compliance with the statutory provisions relating to arrest or investigation of a criminal case and according to the procedure established by law, no one can make any legitimate grievance to stifle or to impinge upon the proceedings of arrest or detention during investigation as the case may be, in accordance with the provisions of the Code of Criminal Procedure.
17. In State of Maharashtra v. Mohd. Rashid and Anr. (2005) 7 SCC 56, the question as to the right of an accused to four working days written notice whenever his arrest was needed in the following three years came up for consideration. The Hon'ble Supreme Court held that the accused had no such right of notice. "Such a blanket protection of not arresting the first respondent in any crime, except after written notice to him, could not be passed."
18. Thus, in view of the above, it is evident that an accused cannot claim a right to notice/hearing before arrest is made.
SCOPE OF INTERFERENCE UNDER ARTICLE 226 OF THE CONSTITUTION:
19. The power of quashing the criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R. or complaint and the extraordinary and inherent powers of Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor it can 'soft-pedal the course of justice' at a crucial stage of investigation/ proceedings. (Vide State of West Bengal and Ors. v. Swapan Kumar Guha and Ors. ; Madhavrao Jiwaji Rao Scindia and Anr. v. Sambhajirao Chandrojirao Angre and Ors. ; The Janata Dal v. H.S. Chowdhary and Ors. ; Mrs. Rupan Deol Bajaj and Anr. v. Kanwar Pal Singh Gill and Anr. ; G. Sagar Suri and Anr. v. State of U.P. and Ors. ; and Ajay Mitra v. State of M.P. ).
20. In Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. AIR 1998 SC 128, a similar issue was considered and the Hon'ble Apex Court held that the criminal law cannot be set into motion as a matter of course. The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors that might be committed by the Subordinate Courts as it is the duty of the High Court to prevent the abuse of process of law by the inferior Courts and to see that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court but more the power more due care and caution is to be exercised invoking these powers. The Apex Court held that nomenclature under which the petition is filed is totally irrelevant and does not prevent the Courts from exercising its jurisdiction which otherwise it possesses unless there is a special procedure prescribed which procedure is mandatory.
21. In State of U.P. v. O.P. Sharma , the Hon'ble Supreme Court has indicated that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 of the Code or under Article 226 or 227 of the Constitution of India, as the case may be, and allow the law to take its own course. Similar view had been taken in Pratibha Rani v. Suraj kumar and Anr. AIR 1985 SC 628.
22. In L.V. Jadhav v. Shankarrao Abasaheb Pawar and Ors. AIR 1983 SC 1219, the Apex Court held that Court's power is limited only to examine that the process of law should not be misused to harass a citizen and for that purpose, the high Court has no authority or jurisdiction to go into the matter or examine the correctness of allegations unless the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion and that there is sufficient ground for proceeding against the accused but the Court, at that stage, cannot go into the truth or falsity of the allegations.
23. In Trisuns Chemical Industry v. Rajesh Agarwal and Ors. , the Supreme Court placed reliance upon its earlier judgment in Rajesh Bajaj v. State N.C.T. of Delhi and Ors. AIR 1999 SC 1216 and observed that the inherent power of the High Court should be limited to very extreme exceptions. The said judgment was approved and followed by the Apex Court in Ram Biraji Devi v. Umesh Kumar Singh and Ors. 2006 AIR SCW 2543, wherein the Apex Court reiterated that the power can be used only in extreme exceptions where it is necessary to do so in the interest of justice.
24. In State of Haryana and Ors. v. Ch. Bhajan Lal (supra), the Hon'ble Supreme Court laid down the guide-lines for exercising the inherent power as under:
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 F.I.R. 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 of any offence and make out as case against the accused,
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by as police officer without an order of a Magistrate ass 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 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 malafide 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.
25. In Ganesh Narayan Hegde v. S. Bangarappa and Ors. , an earlier decision in Mrs. Dhanalakshmi v. R. Prasanna Kumar and Ors. AIR 1990 SC 494, has been cited with approval for the proposition that there should be no undue interference by the High Court as no meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at this stage. The High Court should interfere only where it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of process of court or that the interests of justice otherwise call for quashing of the charges.
26. In Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque and Ors. , the Hon'ble Apex Court held that criminal proceedings can be quashed but such power is to be exercised sparingly, carefully with caution and only when such exercise is justified by the tests specifically laid down in the statutory provisions itself. It is to be exercised ex debito justitiae to do real and substantial justice for administration of which alone Courts exist. Wherever any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent the abuse. A case where the F.I.R. or the complaint does not disclose any offence or is frivolous, vexatious or oppressive, the proceedings can be quashed. It is, however, not necessary that at this stage there should be meticulous analysis of the case before the trial to find out whether the case ends in conviction or acquittal. The allegations have to be read as a whole.
27. In State of W.B. v. Narayan K. Patodia , The Apex Court observed that lodging an FIR is only the first step of investigation by the police. Premature quashing of the FIR at the initial stage instead of serving the cause of justice, harmed it. The inherent powers of the High Court are reserved to be used "to give effect to any orders under the Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice".
28. Undoubtedly, the enjoyment of a good reputation is a personal right and, thus, dignity of a person is to be protected as guaranteed under Article 21 of the Constitution of India. Filing F.I.R. and visit by the police for arrest of a person on the basis of false and frivolous F.I.R./complaint, may, result in incalculable harm to his reputation and self-respect. Such a right has been recognised by the Hon'ble Apex Court in Joginder Kumar's case and Smt. Kiran Bedi and Anr. v. Committee of Enquiry and Anr. to be a personal right. However, the law of arrest is one of the balancing individual rights, liberties and privileges, on the one hand and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of doing which comes first - the criminals or society, the law violator or the law abider.
29. In D.K. Basu v. State of West Bengal , the Hon'ble Apex Court held that when the crime goes unpunished, the criminals are encouraged and the society suffers. The victim of crime or his kith and kin become frustrated and contempt for law develops. The Court further observed as under:
if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scot-free without exposing any element or iota of criminality, the crime would go unpunished and in the ultimate analysis, the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime.
30. While deciding the said case, the Hon'ble Supreme Court laid down certain guidelines for the police, as how to act and proceed when arrest is necessary. The Court expected the legislature to bring legislation to give effect to the said guidelines,
31. In order to give effect to the law laid down by the Hon'ble Supreme Court in this case, the provisions of the Code have been amended by Code of Criminal Procedure (Amendment) Act, 2005 by which Section 50A has been inserted. It requires the Police to give information about the arrest of the person as well as the place where he is being held to anyone who may be nominated by him for sending such information. It further obliges the Magistrate concerned to satisfy himself about the fulfillment of the requirements of the said provision when arrested person is produced before him in order to ensure compliance of the said law. The aforesaid provisions are mandatory and any violation, thereof, can be a ground available to an apprehended person to question the correctness of the arrest by the aforesaid procedure. This is because the aforesaid Section is clearly designed to protect the fundamental right of a person guaranteed under Article 21 of the Constitution, subject to reasonable restriction as placed by the law enacted by the Legislature. In our opinion, the interpretation of the said provision therefore makes it imperative for the investigating agency not to apprehend a person and further for the Magistrate to satisfy himself that the investigating agency had proceeded with in accordance with law, which in our opinion would ensure the safety and liberty of a person from being abused and from preventing any unwarranted arrest.
32. In Ahmed Noormohmed Bhatti v. State of Gujarat , the Hon'ble Supreme Court held that for violation of the guidelines contained in D.K. Basu and Joginder Kumar the appropriate remedy is departmental action or contempt. The Court observed as follows:
These requirements are in addition to the constitutional and statutory safeguards and do not detract from various directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee. This Court has also cautioned that failure to comply with the requirements aforesaid, shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court.
(Emphasis added).
33. The Hon'ble Apex Court in Smt. Nandini Satpathy v. P.L. Dani and Anr. , has observed that emphasis should shift depending on circumstances, in balancing these interests. The Hon'ble Apex Court in Joginder Kumar's case after considering the rights of the people guaranteed under Articles 21 and 22(1) of the Constitution of India, observed as under:
The incidents of personal liberty are guaranteed under the Constitution of India. 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 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 rights 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.
34. Thus, the arrest is permissible only in a case where the circumstances of the said case so require and there is a justification for making the arrest otherwise not.
35. The Court has a duty to balance the freedom of a person and the right of the Executive to investigate the offence. Therefore, the Court has to examine as to whether the investigation is being made in accordance with law and if it comes to the conclusion that investigation is nothing but a means to harass the accused, the Court can always interfere with investigation.
36. Section 157(1) of the Code of Criminal Procedure reads as under:
Procedure for investigation.- (1) 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 or 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.
(Emphasis added).
37. It is evident from the statutory provisions itself that arrest is to be made only and only if it is found to be necessary and there is a justification for making the arrest for the purpose of further investigation. What to talk of arrest even case may not be investigated if there is no sufficient ground for the same. Therefore, it cannot be held that arrest is to be made in every case without discrimination rather the mandate issued by the Hon'ble Apex Court in Joginder Kumar's case is to be followed but as stated above, the said case deals with the power of the police to make arrest while the Full Bench in Satyapal's case deals with the power of the Court to interfere with investigation.
38. Investigation is the primary function of the Police. The arrest of the suspect in the next step in the investigation which can be carried out in certain cases without warrant of arrest. Arrest can also be made in view of the provision of Section 42 of the Code, if the accused does not disclose his identify, i.e. name, parentage and residence etc or information in this regard given by him is believed to be false. Tendency to implicate falsely in criminal cases and absence of statutory provision for seeking anticipatory bail in the State of Uttar Pradesh have flooded this Court with cases for quashing FIR/Complaint and in the meanwhile staying arrest. The Court is competent to interfere with investigation/arrest only in exceptional cases as explained above.
LIMITATIONS ON EXAMINING QUESTIONS OF MALA FIDE IN WRIT PETITION:
39. The issue of mala fide decided by the Hon'ble Apex Court in State of Haryana v. Ch. Bhajan Lal (supra) held as under:
At this stage, when there are only allegations and recriminations on no evidence, this Court could not anticipate the result of the investigation and rendered a finding on the question of mala fides on the materials at present available. Therefore, we are unable to see any force in the contentions that the complaint should be thrown over board on the some unsubstantiated plea of mala fides.
(Emphasis added).
40. In Sheo Nandan Paswan v. State of Bihar and Ors. , the Hon'ble Apex Court while dealing with the issue of mala fides in criminal law observed as under:
It is well established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant.
(Emphasis added).
41. Similarly, in State of Bihar and Anr. v. J.A.C. Saldanha and Anr. (supra), the Apex Court has held as under:
It must, however, be pointed out that if an information is lodged at the police station and an offence is registered, the mala fide of the informant would be of secondary importance if the investigation produced unimpeachable evidence disclosing he offence.
(Emphasis added).
42. In Sarjudas and Anr. v. State of Gujarat the Hon'ble Supreme Court held that there must be cogent evidence of mala fides or malicious intention of the informant or the complainant for taking note of the allegations of mala fide. The bald statement in this respect is not sufficient.
43. In State of Orissa v. Saroj Kumar Sahoo , it has been held that probabilities of the prosecution version can not be analyzed at this stage. Likewise the allegations of mala fides of the informant are of secondary importance. The relevant passage reads thus:
It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings.
(Emphasis added).
44. In M. Narayandas v. State of Karnataka and Ors. , the Apex Court rejected the contention that proceedings were liable to be quashed as the same stood initiated on account of personal vendetta observing that complaint has to be tested and weighed after the evidence is collected.
45. Similar view has been explained by the Apex Court in State of Bihar and Anr. v. Shri P.P. Sharma and Anr. ; and Zandu Pharmaceutical Works Ltd. (supra).
46. Thus, it is evident that in case there is sufficient evidence against the accused, which may establish the charge against him, if the bias/mala fide is established, the proceedings cannot be quashed.
QUASHING OF FIR BECAUSE DISPUTE IS OF CIVIL NATURE:
47. In Trilok Singh and Ors. v. Satya Deo Tripathi , the Hon'ble Supreme Court examined the similar case wherein the truck had been taken in possession by the Financer in terms of hire purchase agreement, as there was a default in making the payment of installments. A criminal case had been lodged against the Financer under Sections 395, 468, 465, 471, 120B/34, I.P.C. This Court refused to exercise its power under Section 482, Cr.P.C. and did not quash the criminal proceedings on the ground that the Financer had committed an offence. However, reversing the said judgment, the Apex Court held that proceedings initiated were clearly an abuse of process of the Court. The dispute involved was purely of civil nature, even if the allegations made by the complainant were substantially correct. Under the hire purchase agreement, the Financer had made the payment of huge money and he was in fact the owner of the vehicle. The terms and conditions incorporated in the agreement gave rise in case of dispute only to civil rights and in such a case, the Civil Court must decide as what was the meaning of those terms and conditions.
48. In K.A. Mathai alias Babu and Anr. v. Kora Bibbikutty and Anr. , the Hon'ble Apex Court had taken a similar view holding that in case of default to make payment of installments, Financer had a right to resume possession even if the hire purchase agreement does not contain a clause of resumption of possession, for the reason that such a condition is to be read in the agreement. In such an eventuality, it cannot be held that the Financer had committed an offence of theft and that too, with the requisite mens rea and requisite dishonest intention. The assertions of rights and obligations accruing to the parties under the hire purchase agreement wipes out any dishonest pretence in that regard from which it cannot be inferred that Financer had resumed the possession of the vehicle with a guilty intention.
49. In Jagdish Chandra Nijhawan v. S.K. Saraf , the Hon'ble Supreme Court dealt with a case wherein the company had provided an accommodation to its employee and after termination of his services, he did not vacate the said accommodation and a criminal case was lodged against him under Sections 406, 408, 409, I.P.C. also taking the assistance of Section 630 of the Companies Act, 1956. The Hon'ble Apex Court held that as the accused had been granted a rent free accommodation as a part of the conditions of employment, the agreement provided for civil rights and thus, complaint was not maintainable.
50. In Charanjit Singh Chadha and Ors. v. Sudhir Mehra , again the Hon'ble Apex Court held that recovery of possession of the vehicle by Financer-owner as per terms of the hire purchase agreement, does not amount to a criminal offence. Such an agreement is an executory contract of sale conferring no right in rem on the hirer until the transfer of the property to him has been fulfilled and in case the default is committed by the hirer and possession of the vehicle is resumed by the Financer, it does not constitute any offence for the reason that such a case/dispute is required to be resolved on the basis of terms incorporated in the agreement. The Apex Court elaborately dealt with the nature of the hire purchase agreement observing that in a case of mere contract of hiring, it is a contract of bailment which does not create a title in the bailee.
51. In Lalmuni Devi (Smt.) v. State of Bihar and Ors. , the Hon'ble Supreme Court held that peculiar facts of a case may give rise to a civil claim and also amount to an offence. Merely because a civil claim is maintainable, it does not mean that the criminal complaint cannot be maintained, therefore, held that no law of universal application can be laid down in such matters. The facts and circumstances of each case have to be examined, appreciating the terms and conditions incorporated in the agreement.
52. In M. Krishnan v. Vijay Singh and Anr. , after considering several authorities on the point it was pointed out that mere filing of a civil suit with respect to the documents gives no ground for quashing criminal proceedings, as the allegations in the complaint need to be independently established. The Court held as under;-
Accepting such a general proposition would be against the provisions of law inasmuch as in all cases of cheating and fraud, in the whole transaction, there is generally some element of civil nature. However, in this case the allegations were regarding the forging of the documents and acquiring gains on the basis of such forged documents. The proceedings could not be quashed only because the respondents had filed a civil suit with respect to the aforesaid documents. In a criminal court the allegations made in the complaint have to be established independently, notwithstanding the adjudication by a civil Court. Had the complainant failed to prove the allegations made by him the complaint, the respondents were entitled to discharge or acquittal but not otherwise. If mere pendency of a suit is made a ground for quashing the criminal proceedings, the unscrupulous litigants, apprehending criminal action against them, would be encouraged to frustrate the course of justice and law by filing suits with respect to the documents intended to be used against them after the initiation of criminal proceedings or in anticipation of such proceedings. Such a course cannot be the mandate of law. Civil proceedings, as distinguished from the criminal action, have to be adjudicated and concluded by adopting separate yardsticks. The onus of proving the allegations beyond reasonable doubt, in a criminal case, is not applicable in the civil proceedings which can be decided merely on the basis of the probabilities with respect to the acts complained of Where factual foundations for the offence have been laid down in the complaint, the High Court should not hasten to quash criminal proceedings merely on the premise that one or two ingredients have not been stated with the details or that the facts narrated reveal the existence of commercial or money transaction between the parties.
(Emphasis added).
53. Similarly, in Rajesh Bajaj (supra), the Hon'ble Supreme Court observed as under:
It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions. The crux of the postulate is the intention of the person who induces the victim of his representation and not the nature of the transaction which would become decisive in discovering whether there was commission of offence or not.
54. Similar view has been reiterated in Ram Biraji Devi (supra) observing that where a person cannot be fastened with any criminal liability and no guilty intention can be attributed to him nor there is a possibility of deceiving on his part and the matter relates to only civil liabilities, the Court should interfere and quash the proceedings.
55. Thus, in view of the above, it becomes clear that in a given case, there may be civil as well as criminal liability and the Court has to examine the facts and circumstances of each case. Nature of the agreement reached between the parties and terms and conditions incorporated therein would be determining factor. However, such a course is permissible where the matter is of such a nature that it can be decided only by a Civil Court and no element of criminal law is involved.
DEFENCE AND INVESTIGATIONAL MATERIAL NOT TO BE CONSIDERED AT THIS STAGE:
56. In Savita v. State of Rajasthan (2005) 12 SCC 338, it has been held that at the stage when investigation had not even started and charge- sheet had not been submitted the High Court could not take into consideration extraneous material given by the party concerned for reaching the conclusion that no offence was disclosed. This in fact was too premature a stage for the High Court to give such a finding when even the investigation had not started and the investigating agency had no occasion to find out whether there was material to file a charge-sheet or not.
57. Similarly in State of T.N. v. Thirukkural Perumal , it has been held that it is impermissible to quash criminal proceedings based on evidence collected by the investigating agency during investigation. The Court held as under:
The normal process of the criminal trial cannot be cut short in a rather casual manner. The court, is not justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation only while dealing with a petition seeking the quashing of the FIR and the criminal proceedings.
58. In S.M. Datta v. State of Gujarat and Anr. , the practice of the High Court in scuttling criminal proceedings at the initial stage was criticised, except in the rarest cases where the same amounted to abuse of the process of law. Only broad allegations were to be seen and genuineness of the FIR could not be looked into at this stage. The Court observed as under:
Criminal proceedings, in the normal course of events ought not to be scuttled at the initial stage, unless the same amounts to an abuse of the process of law. In the normal course of events thus, quashing of a complaint should rather be an exception and a rarity than an ordinary rule. The genuineness of the averments in the FIR cannot possibly be gone into and the document shall have to be read as a whole so as to decipher the intent of the maker thereof. It is not a document which requires decision with exactitude, neither is it a document which requires mathematical accuracy and nicety, but the same should be able to communicate or indicative of disclosure of an offence broadly and in the event the said test stands satisfied, the question relating to the quashing of a complaint would not arise. It is in this context, however, one feature ought to be noticed at this juncture that there cannot possibly be any guiding factor as to which investigation ought to be scuttled at the initial stages and investigations which ought not to be so scuttled. The first information report needs to be considered and if the answer is found on a perusal thereof which leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police since the two organs of the State I operate in two specific spheres of activities and one ought not to tread over the other sphere.
(Emphasis added).
59. In Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. and Ors. AIR 2000 SC 1869, the Apex Court observed that the complaint or charge sheet can only be quashed in the rarest of rare exceptional case, but where the allegations on the face of the complaint do not constitute an offence, criminal proceedings may be unhesitantly quashed. The Court held as follows:
Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. With the lodgement of first information report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount.
(Emphasis added).
60. Thus, the Court is not permitted to consider/examine the reliability/genuineness of the allegations made in the F.I.R. or complaint, at the stage of considering a case for quashing criminal proceedings.
QUASHING OF F.I.R. - BECAUSE OF CROSS-CASES:
61. In the case of Jagdish Yadav v. Ram Nandan Yadav and Ors. 1990 SCC (Crl.) 648, it was observed that simply due to lodging of a cross-case the investigation ought not to have been interfered with by the High Court. As in view of the fact that the two cases related to the same incident it was open to the Magistrate after the two reports came to be placed before him to consider what action according to law is called for.
62. Likewise the scope of interference with investigation when there were cross cases has been considered in Kari Choudhary v. Sita Devi , the Court observed that there cannot be two FIRs against the same accused in respect of the same case. But when there are rival versions in respect of the same episode, they would normally take the shape of two different FIRs and investigation can be carried on under both of them by the same investigating agency.
63. In Upkar Singh v. Ved Prakash , the Court considered the issue and placing reliance upon its earlier judgment in T.T. Antony v. State of Kerala and Ors. , held that the registration of a complaint in the nature of a counter-case from the purview of the Code is not excluded. Any further complaint by the same complainant or others against the same accused, subsequent to the registration of a case, is prohibited under the Code because an investigation in this regard would have already started and further complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence will be prohibited under Section 162 of the Code. This prohibition does not apply to counter-complaint by the accused In the first complaint or on his behalf alleging a different version of the said incident. The Court held as under:
Be that as it may, if the law laid down by this Court in T.T. Antony case is to be accepted as holding that a second complaint in regard to the same incident filed as a counter-complaint is prohibited under the Code then, in our opinion, such conclusion would lead to serious consequences. This will be clear from the hypothetical example given herein below i.e. if in regard to a crime committed by the real accused he takes the first opportunity to lodge a false complaint and the same is registered by the jurisdictional police then the aggrieved victim of such crime will be precluded from lodging a complaint giving his version of the incident in question, consequently he will be deprived of his legitimated right to bring the real accused to book. This cannot be the purport of the Code.
(Emphasis added).
64. In view of the above, pendency of cross-cases in respect of the same incident cannot be a sole and exclusive ground for interference with criminal proceedings.
SCOPE OF ARTICLE 141 AND LAW OF PRECEDENTS:
65. There can be no dispute that the law laid down by the Hon'ble Apex Court Is binding on all Courts of the country in view of the provisions of Article 141 of the Constitution of India but the decision of the Hon'ble Apex Court is to be read with reference to and in the contest of the peculiar statutory provisions interpreted by the Court and taking into consideration the facts of the case where the law had been laid down.
66. It is settled proposition of law that an issue, which has not been considered by the Court while delivering a judgment, cannot be said to be binding as a decision of the Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the Court must carefully try to ascertain the true principle laid down by the decision of the Court. The Court should not place reliance upon a discussion without discussing as to how the factual situation fits in with a fact situation of the decision on which reliance is placed, as it has to be ascertained by analyzing all the material facts and the issues involved in the case and argued on both sides. The judgment has to be read with reference to and in context with a particular statutory provisions interpreted by the Court as the Court has to examine as what principle of law has been decided and the decision cannot be relied upon in support of a proposition that it did not decide (Vide H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and Ors. v. Union of India ; Amar Nath Om Parkash and Ors. v. State of Punjab and Ors. ; Rajpur Ruda Meha and Ors. v. State of Gujarat ; C.I.T. v. Sun Engineering Works (P) Ltd. ; Sarva Shramik Sangh, Bombay v. Indian Hume Pipe Co. Ltd. and Anr. ; Haryana Financial Corporation and Anr. v. Jagdamba Oil Mills and Anr. ; Mehboob Dawood Shaikh v. State of Maharastra ; ICICI Bank and Anr. v. Municipal Corporation of Greater Bombay and Ors. ; MaKhija Construction and Enggr. Pvt. Ltd. v. Indore Development Authority and Ors. ; and Shin-Etsu Chemical Co. Ltd. v. Aksh Optifibre Ltd. and Anr. ).
67. In Jawahar Lal Sazawal and Ors. v. State of Jammu & Kashmir and Ors. , Hon'ble Supreme Court held that a judgment may not be followed in a given case if it has some distinguishing features.
68. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd. , the Hon'ble Supreme Court held that a decision is an authority for which it is decided and not what can logically be deduced therefrom. A little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. While deciding the said case the Court placed reliance upon its earlier judgment in Delhi Administration v. Manohar Lal .
69. In Union of India v. Chajju Ram , a Constitution Bench of the Hon'ble Supreme Court held as under;-
It is now well settled that a decision is an authority for what it decides and not what can logically be deduced therefrom. It is equally well settled that a little difference in facts may lead to a different conclusion.
70. In Ashwani Kumar Singh v. U.P. Public Service Commission and Ors. , the Apex court held that a judgment of the Court is not to be read as a statute as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. Substantial flexibility; one additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper.
71. Not only that, in Nand Kishore v. State of Punjab , the Hon'ble Apex Court has held as under:
Their Lordships' decisions declare the existing law but do not enact any fresh law, is not in keeping with the plenary function of the Supreme Court under Article 141 of the Constitution, for the Court is not merely the interpreter of the law as existing but much beyond that. The Court as a wing of the State is by itself a source of law. The law is what the Court says it is.
72. The Hon'ble Apex Court has repeatedly held that it is the duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law and while performing its duty, it is competent to lay down norms, procedure and guidelines for observance (Vide Vineet Narain v. Union of India and Ors. ; and Union of India v. Sushil Kumar Modi ).
73. In view of the above, it is evident that while following the judgment of the higher Court, the Court has to examine as to whether the issue involved in the case in hand had been decided in the case sought to be followed. The facts, if found distinguishable, can also tilt the position as in that situation the ratio of the judgment may not be applicable.
FINAL DISPOSAL OF CASES AT INITIAL STAGE:
74. In many cases, it has been found that petitions are disposed of on the very first day without issuing notice to the complaint and giving the opportunity to the State to controvert the averments made in the petition staying the arrest of the accused till the charge sheet is filed. Such a course is not permissible as the Court has to deal with every case on merit.
75. The Hon'ble Apex Court in Manjit Kaur v. State of Punjab and Ors. (2005) 12 SCC 310, cautioned the Court not to quash the proceedings by a cryptic and unreasoned order. It was further observed that the petition is to be disposed of by a reasoned order taking into account the facts and legal issues involved therein.
76. As to whether it is permissible for this Court to dispose of the petition on the very first date staying the arrest till charge sheet is filed.
77. The issue involved herein was examined by a Constitution Bench of the Hon'ble Apex Court in State of Orissa v. Madan Gopal Rungta , wherein the Orissa High Court while dismissing the writ petition without entering into the merit of the case, relegated the petitioner therein to the Civil Court as the petition raised disputed questions of fact, had granted the interim relief for a limited period to facilitate the petitioner to approach the Civil Court and obtain interim relief. The Hon'ble Apex Court set aside the said order of the High Court observing that the writ was not maintainable only for the purpose of granting interim relief and in case the High Court did not entertain the case on merit and relegated the party to some other forum, it did not have a power to grant interim relief for the interregnum period. The Court held as under:
The question which we have to determine is whether directions in the nature of interim relief only could be granted under Article 226, when the Court expressly stated that it refrained from determining the rights of the parties on which a writ of mandamus or directions of a like nature could be issued. In. our opinion, Article 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application as the High Court has purported to do. The directions have been given here only to circumvent the provisions of Section 80 Civil P.C., and in our opinion that it is 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 a 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. In our opinion, the language of Article 226 does not permit such an action. On that short ground, the judgment of the Orissa High Court under appeal cannot be upheld.
(Emphasis added).
78. The said judgment stood approved by a Seven Judges' Bench of the Hon'ble Apex Court in Special Reference No. 1 of 1964 under Article 143 of the Constitution of India , further placing reliance on Maxwel wherein it had been observed that when an Act confers a jurisdiction, it impliedly also grants the power of doing of such acts or applying such means as are essentially necessary to its execution.
79. The ratio of the said judgment in Madan Gopal (supra) has consistently been approved and followed by the Hon'ble Apex Court as is evident from the Constitution Benches decisions in Amarsarjit Singh v. State of Punjab ; and State of Orissa v. Ram Chandra Dev . In State of Bihar v. Rambalak Singh "Balak" and Ors. , the Hon'ble Apex Court has made a similar observation observing that granting interim relief is permissible when the case is pending before the Court and if jurisdiction is conferred by the Statute upon a Court, the conferment of jurisdiction implies the conferment of power of doing all such acts or applying such means.
80. In The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and Ors. , a similar view has been reiterated.
81. A Constitution Bench of the Hon'ble Apex Court in Maharaj Umeg Singh and Ors. v. State of Bombay and Ors. , entertained a writ petition under Article 32 of the Constitution of India and the question involved therein had been as to whether the Moti Moree held by the petitioner and his ancestors under a Grant was part of Jagir within the meaning of The Bombay Merged Territories and Areas (Jagir Abolition) Act, 1954. The vires of the provisions of the Act had been challenged, The Hon'ble Apex Court subsequently came to the conclusion that the petitioner therein had to establish satisfactorily that the Moti Moree was not a Jagir within the definition given under the Act 1954 and the question required to be completely thrashed out and adjudicated upon by the Civil Court. The Court relegated the parties to the Civil Court and adjourned the case till that issue was decided by the Civil Court. However, the Court further granted the following interim relief:
We, therefore, order that the petitioner do file the necessary Suit within three months on this date and the petition do stand adjourned till after the hearing and final disposal of that Suit. The stay granted by this Court in this petition will continue in the meanwhile. We may record here that the learned Advocate General on behalf of State of Bombay has also given his undertaking not to take any steps against the petitioner in the meanwhile.
82. In the said case, though the parties therein were relegated to the Civil Court for adjudication of their rights by adducing evidence on facts but granted the interim relief till the disposal of the Suit for the reason that the matter remained pending before the Court to be decided after disposal of the Suit. More so, it contained an undertaking given by the Advocate General of the State of Bombay not to take any step adversely affecting the petitioner.
83. Thus, it is evident from the aforesaid judgments of the Hon'ble Apex Court that the Court has a power to grant interim relief so long the case is pending before it. In a case where the writ Court refuses to entertain a petition and relegates the party to some other appropriate forum or the party itself withdraws the writ petition to approach another forum, as the case does not remain pending before the Court, the writ Court has no competence to issue any direction protecting the right of the petitioner interregnum, for the reason that writ does not lie for granting only an interim relief and interim relief can be granted provided the case is pending before the Court and rights of the parties are likely to be adjudicated upon on merit. Under the garb of seeking quashing of criminal proceedings, the relief of anticipatory bail, which is not available in the State of U.P., cannot be obtained, for the reason that a litigant cannot be permitted to achieve something indirectly, which cannot be sought directly.
REASONED ORDER NEEDED FOR INTERIM RELIEF:
84. In view of the above, it is neither desirable nor permissible in law to dispose of a writ petition granting the interim relief without adjudicating upon the issues involved therein. Thus, the petition is to be decided on merit. However, it may be necessary in the facts and circumstances of the case that interim relief has to be granted for the reason that in the facts and circumstances of a case, withholding of interim relief may tantamount to dismissal of the main relief itself as by the time the case comes for hearing to be decided finally, nothing may be allowed to be granted in favour of the petitioner.
85. In Deoraj v. State of Maharashtra and Ors. , the Hon'ble Apex Court while dealing with a case of election under the provisions of Maharashtra Cooperative Societies Act, 1960, held that interim relief should be granted if so required but in a foolproof case. The Court held as under:
In such a case the availability of a very strong prima facie case - of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The Court would grant an interim relief only if satisfied withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously, such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship.
86. Similar view has been reiterated in Bombay Dyeing & Manufacturing Co. Ltd. v. Bombay Environmental Action Group and Ors. , placing reliance upon the earlier judgments of the Hon'ble Apex Court in Dr. B. Singh v. Union of India and Ors. AIR 2004 SC 1923; and Dattaraj Nathuji Thaware v. State of Maharashtra and Ors. AIR 2005 SC 540, wherein it has been held that the Court must consider on one hand the enormity of losses and hardship which may be suffered by others, if interim order is granted and whether petition itself would become infructuous if the interim relief is refused on the other hand. Thus, the Court has to strike a balance between the two extreme positions.
FACTS AND ISSUES IN JOGINDER KUMAR'S CASE :
87. It may be noted that Joginder Kumar's involved the arrest of a practising lawyer who had been called to the police station in connection with a case under inquiry on 7-1-94. On not receiving any satisfactory account of his whereabouts, the family members of the detained lawyer preferred a petition in the nature of habeas corpus before the apex Court on 11-1-94 and in compliance with the notice, the lawyer was produced on 14-1-94 before the Court, The police version was that during 7-1-1994 and 14-1-1994 the lawyer was not in detention at all but was only assisting the police to detect some cases, The detenu asserted otherwise, The Court was not satisfied with the police version. It was noticed that though as on that day the relief in habeas corpus petition could not be granted but the questions whether there had been any need to detain the lawyer for 5 days and if at all he was not in detention then why was the Court not informed, were important questions which required an answer. Besides, if there was detention for 5 days, for what reason was he detained. The Court, therefore, directed the District Judge, Ghaziabad to make a detailed enquiry and submit his report within 4 weeks. In that case the Court voiced its concern regarding complaints of violations of human rights during and after arrest.
88. In Joginder Kumar's case, the apex court has considered the issue of balancing individual rights and liberties of detained accused, on the one hand, and the society's need for law enforcement on the other.
89. Joginder Kumar's case does not confer any powers on the High Court to quash an FIR in the extraordinary powers of the High under Article 226 of the Constitution or of staying the arrest simply because the case is of a minor nature or because the investigation has not been able to produce significant material for showing the complicity of an accused in an offence at that stage. Finally in operative part of the judgment in Joginder Kumar's case, the Apex Court has only issued certain directions.
90. However, for non-compliance of the aforesaid directions, the official concerned can be held liable for departmental action, and may also be liable to be punished for contempt of court. The observations and guidelines in D.K. Basu and Joginder Kumar are therefore directed at the police. The said judgment did not deal with the power of the High Court to quash the FIR and investigation or to stay the arrest of the accused at all.
91. The Full Bench in Satyapal's case had examined the issue as to what extent and in what circumstances, this Court has competence to interfere with investigation of an offence. While in Joginder Kumar's case, the Supreme Court explained the powers of the police to arrest a person suspected to be involved in a crime. Thus, in both the cases, issue had been entirely different and there was nothing common in both the said cases. Observations made by the Full Bench in Satyapal's case that Joginder Kumar's case was decided on the facts of that case, simply meant that the law laid down therein did not affect the powers of this Court in interfering with investigation by any means.
92. While dealing with a similar situation, i.e. the observations made by a Seven Judges' Bench in India Cement Ltd. v. State of Tamil Nadu , the five Judges' Bench in State of West Bengal v. Kesoram Industries Ltd. , observed as under:
A doubtful expression occurring in a judgment, apparently by mistake or inadvertence, ought to be read by assuming that the Court had intended to say only that which is correct according to the settled position of law, and the apparent error should be ignored, far from making any capital out of it, giving way to the correct expression which ought to be implied or necessarily read in the context, also having regard to what has been said a little before and a little after A statement caused by an apparent typographical or inadvertent error in a judgment of the Court should not be misunderstood as declaration of such law by the Court.
93. In view of the above, it is not permissible to read the said observations in a manner not warranted nor any person can be permitted to make an issue of it. The Full Court only intended to say that the ratio of Joginder Kumar's case was not applicable in a case where quashing of criminal proceedings is sought.
ANSWERS TO THE QUESTIONS REFERRED:
94. In view of the above, the conclusions drawn by us, hereinabove, we answer the first part of question No. 1 holding that Satyapal's case lays down the correct law and we approve, affirm and reiterate the same. However, the second part of the 1st question does not require to be answered, as the ratio of Joginder Kumar's case has no application in a case for quashing criminal proceedings.
95. Our answer to the second question under reference is that the observations contained in the Full Bench decision in Satyapal's case did not Intend to whittle down or reduce the powers of this Court for staying the arrest of an accused person and for which our judgment contains reason explaining the intendment of the Full Bench judgment therein, i.e. the ratio of Joginder Kumar's case had no application in Satyapal's case.
96. After answering the aforesaid questions, the matter requires to be sent back to the Division Bench for its disposal. However, at the time of conclusion of the submissions, it was suggested by the learned Counsel for the parties that in the instant case the investigation has been completed and charge sheet has been filed against the petitioner. The Competent Court has already taken cognizance and In such circumstances, the petition has become infructuous and be accordingly dismissed as having become infructuous.
97. The petition stands accordingly dismissed as having become infructuous.
Amar Saran, J.
98. I have had the advantage of reading the opinion of my esteemed senior Brother Hon'ble Chauhan, J.
99. I am in full agreement with his Lordship's answer to the first question referred by the Division Bench of this Court comprising Hon'ble M. Katju J' and Hon'ble Onkareshwar Bhatt J vide their order dated 22.8.2000. The question referred was as under:
1. Whether arrest during investigation can be stayed by this Court only in rarest of rare cases as observed in Satyapal v. State of U.P. and Ors. 2000 Cr.L.J. 569, or according to the criteria laid down by the Supreme Court in Joginder Kumar v. State of U.P. and Ors. ?
The answer given by Brother Chauhan J was as follows:
In view of the above, the conclusions drawn by us, hereinabove, we answer the first part of question No. 1 holding that Satyapal's case lays down the correct law and we approve, affirm and reiterate the same. However, the second part of the 1st question does not require to be answered, as the ratio of Joginder Kumar's case has no application in a case for quashing criminal proceedings.
However, I need to say a few words especially in relation to the answer given by Brother Chauhan J to the second question posed by the referring division bench.
The second question referred by the Division Bench was as under:
2. Whether the Full Bench in Satyapal's case was right in holding that Joginder Kumar's case was delivered on its own peculiar facts and circumstances and hence does not lay down any legal principles relating to the power of arrest and the power of stay to arrest by this Court?
The answer given by Brother Chauhan, J. to the second question was:
Our answer to the second question under reference is that the observations contained in the Full Bench decision in Satyapal's case did not intend to whittle down or reduce the powers of this Court for staying the arrest of an accused person and for which our judgment contains reason explaining the intendment of the Full Bench judgment therein, i.e. the ratio of Joginder Kumar's case had no application in Satyapal's case.
100. As brother Justice Chauhan has already stated in his answer to both the questions referred by the Division Bench that the ratio of Joginder Kumar's case has no application in a case praying for staying arrests, in my view the valid answer to the second question about whether the Full Bench was right in holding that Joginder Kumar's case was delivered on its own peculiar facts and did not lay down any legal principles relating to the power of the arrest and the power of staying of arrest by this Court, lay in affirming the Full Bench in Satyapal's case even on this point.
101. If the observations in Joginder Kumar's case are excluded as is mentioned in the answer of Brother Chauhan J to this question and also in the second part of the answer given to the first referred question, then there can be no denial of the fact that ipso facto to some extent the powers of this Court to stay arrest are whittled down. Furthermore in my view the position that the scope of this Court under Article 226 for interfering with investigations and staying arrests is not whittled down even without applying Joginder Kumar's case, runs counter to the position taken in Satyapal's case and will amount to over-ruling or mitigating the ratio and impact of Satyapal's case, in an indirect way, which is a course not permissible for a subsequent Full Bench of equal strength.
102. I also do not think that the reference by the Division Bench headed by Hon'ble M. Katju J was meaningless or futile, which is what the answer to the second question that even without applying Joginder Kumar's case the power of the Court to stay arrest was "not whittled down" would seem to imply.
103. In my view the Division Bench had sought to seek the application of Joginder Kumar's case in the matters relating to stay of arrest because they were conscious of the limitations imposed because of Satyapal's case which in turn was based on various pronouncements of the Apex Court which defined the parameters and scope for permitting interference with the FIR and investigation and for staying arrest. The referring Division Bench sought enlargement of those powers by insisting that some observations in Joginder Kumar's case should also be taken into consideration fur staying arrest of accused against whom FIRs disclosing cognizable offences have been registered. The power of arrest could only have a wider meaning and amplitude provided the ratio of Joginder Kumar's case as understood by the Division Bench was applied. The relevant passage in Joginder Kumar's case (paragraph 24) which was quoted with approval by the D.B. in this regard was:
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 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 rights 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.
104. Satyapal's case on the other hand examined which of the two views, in Mahesh Yadav v. State of U.P. Writ Petition No. 4658 of 1998, where the petition had been disposed of on the very first day with a direction that the petitioner was not to be arrested in the concerned crime number until submission of the charge-sheet subject to his cooperating with the investigation, or the view taken in Writ Petition No. 2588 of 1998 : Shamsul Islam @ Afroz v. State of U.P. and Ors. refusing to interfere with the investigation and to stay the arrest where the FIR disclosed commission of a cognizable offence, was correct. Satyapal's case preferred the view taken in Shamsul Islam (supra) to the view in Mahesh Yadav's case. Satyapal also laid down that without issuing notice to the informant calling for a reply, no order finally disposing of the petition and staying the arrest until submission of charge sheet could be passed at the stage of initial hearing. Satyapal's case has cited with approval the law laid down in the State of Haryana v. Ch. Bhajan Lal and Ors. 1991 (28) ACC 11 (SC), Pepsi Food Limited v. Spl. Judicial Magistrate and Ors. 1998 (36) ACC 20 (SC), Roopan Deol Bajaj v. K.P.S. Gill 1995 (32 ACC 786 (SC), Smt. Rashmi Kumar v. Mahesh Kumar Bhada 1997 (Suppl) ACC 30 (SC) and Central Bureau of Investigation v. Duncan Agro Industries Ltd. 1995 (Suppl) ACC 204 (SC), and has held that the ratio in Joginder Kumar's case has no application and it needs to be confined to its own facts. In paragraph 31 Satyapal's case has observed:
31. 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 FIR taken at the face value and accepted in entirety, do not constitute any cognizable offence : the FIR and the investigation thereon may be quashed.
105. The anxiety of the referring Division Bench in desiring that the observations in Joginder Kumar's case may also be taken into account for effecting stays of arrest during investigation is however understandable. On a traditional interpretation of the legal position as laid down in Satyapal's case and in the authorities of the apex Court referred therein, the scope of Interference and stay of arrest at the stage of investigation needed to be confined to the "rarest of rare" cases. Under the settled interpretation of the powers of this Court under Article 226, there was no power of staying arrests when the FIR disclosed a cognizable offence, even in those cases where the accused was being prosecuted for a minor criminal offence, where the accused was already named in the FIR and his arrest was not needed for custodial interrogation or for facilitating the investigation, where there was no likelihood of the accused absconding or repeating the crime, where the dispute was really of a civil nature, where there were cross cases, where apparently the accused had been falsely implicated due to political rivalry, or there was omnibus involvement of all major or minor, married or unmarried female and male members of a family in a case under Section 498A IPC, or the Dowry Prohibition Act.
106. It was on this understanding that the referring Division Bench had pointed out that on a reading of Section 157(1) of Cr.P.C, arrest is not necessary in all cases and it is to be effected only "if necessary".
107. However as Brother Chauhan has rightly concluded that the observations in Joginder Kumar can not be utilized for considering the scope of powers for quashing criminal proceedings or for staying arrest therein, and observations in Joginder Kumar are essentially directed at the police.
108. Joginder Kumar was on a habeas corpus petition which had been filed for the release from illegal detention of a practicing advocate. As the Court was not satisfied with the plea of the Police respondents who produced Joginder Kumar in Court that they had picked him up in a bona fide manner for interrogation about a criminal case and he had not been illegally detained, the Apex Court had directed enquiry into the matter by the district judge and it was in that connection that observations had been made about situations when arrests may not be necessary or justified, although powers for arrest existed with the police.
109. In its operative part, the Court in Joginder Kumar's case had also only issued the following directions:
1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where is being detained.
2. The Police Officer shall inform the arrested person when he is brought to the police station of this right.
3. An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.
It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.
The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested persons in the various Police Manuals.
110. In D.K. Basu v. State of West Bengal the Court also mentions some similar directions and guidelines which included the need for the arresting officer to wear identification tags, to make a memo of arrest at the time of arrest, to note in the case diary the name of his next friend disclosed by the arrestee who was to be informed of the arrest, to permit the arrestee's lawyer to be present for part of the time during custodial interrogation, to get medical examination of the arrestee done every 48 hours during interrogation.
111. These cases were therefore not at all concerned with the powers of the High Court for staying arrest during investigation in a cognizable case. For non-compliance of the directions in D.K. Basu as in Joginder Kumar, the official concerned has only been held liable for departmental action or for being punished for contempt of court. In this regard paragraph 37 of D.K. Basu's case observes:
Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of Court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.
112. In Ahmed Noormohmed Bhatti v. State of Gujarat also it has been mentioned in paragraph 8 that for violation of the guidelines contained in O.K. Basu and Joginder Kumar the appropriate remedy is departmental action or contempt. Paragraph 9 of the aforesaid law report reads as follows:
9. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee. This Court has also cautioned that failure to comply with the requirements aforesaid, shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court.
(Emphasis added)
113. It is clear from a perusal of Chapters V and XII of the Code of Criminal Procedure and the observations and guidelines in D.K. Basu and Joginder Kumar, that these provisions, directions and observations are directed at the investigating officer, and powers of supervision have been entrusted to the Magistrate concerned to ensure compliance of the same.
114. No power is conferred on the High Court to quash the FIR and Investigation or to stay the arrest of the petitioner because some of these directions or observations have not been complied with. Only because the High Court is of the opinion that the particular case is not of such a grave nature necessitating arrest, or that the accused is not likely to abscond or that his arrest is not needed for the purpose of investigation, the High Court is not empowered to substitute its discretion in place of the discretion of the Investigating officer, who alone is entitled to arrive at a conclusion as to whether there is any need to effect arrest during investigation. A direction for staying the arrest or quashing an FIR can only be passed in that rarest of rare case where the FIR on its plain reading discloses no cognizable offence. The observations in Joginder Kumar are not meant for enlarging the jurisdiction of the Court for quashing an FIR in exercise of its extraordinary powers under Article 226 of the Constitution of India. Quashing of an FIR or consequential stay of arrest is only possible when the FIR does not disclose a cognizable offence, or when a case for interference with the investigation falls within the parameters set by the decisions of the apex Court State of Haryana v. Bhajanlal et al and relied upon in Satyapal which deal with the powers of the High Court to quash an FIR or to stay the arrest during investigation.
115. At best as observed by the apex Court in Joginder Kumar (supra) that "it shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with."
116. There is also no decision of the Apex Court where a contrary view has been taken or where it has been held that Joginder Kumar's case can be utilized for extending the powers of staying arrest or interfering with the investigation beyond the parameters of the decisions of the Apex Court described above.
117. It may be noted that Brother Chauhan J relying on authorities starting from the Privy Council case in Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18, and going on to H.N. Rishbud , Abhinandan Jha and Ors. v. Dinesh Mishra , M.C Abraham and Anr. v. State of Maharashtra and Ors. , Adri Dharan Das v. State of West Bengal AIR 2005 SC 1057 has also held that the powers and functions of the police and the Courts is clearly demarcated, and that the Court will not ordinarily intervene with the investigation of a crime or with the arrest of the accused in a cognizable case, which is the province of the police.
What then is the remedy?
118. The only remedy in my opinion when an accused is sought to be arrested in the case of a minor cognizable offence, where the arrest may not appear strictly necessary at the stage of investigation is the power of anticipatory bail conferred under Section 438 Cr.P.C. This is the only provision wherein the Sessions Court and thereafter the High Court could consider the gravity or minor nature of the cognizable offence, merits of the matter, the probabilities and genuineness or otherwise of the allegations, for considering whether it would be proper to restrain the Investigating officer from arresting an accused by granting him anticipatory bail in an appropriate case. The relevant provision, Section 438 Cr.P.C has conferred wide powers in this connection to the Sessions Court or the High Court to grant bail to an accused in the event of his being arrested in a non-bailable case "if it thinks fit" subject to such conditions as are mentioned in sub-clause (2) of the provision. Section 438 of the Code is being reproduced below;
438. Direction for grant of bail to person apprehending arrest.- (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under Sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including -
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court.
(iv) such other condition as may be imposed under Sub-section (3) of Section 437, as if the bail were granted under that section.
If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section (1).
(Emphasis added)
119. That this provision was enacted for giving relief to an accused in such situations, where allegations are not very grave or where the accused appear to have been implicated because of political rivalry or where the arrest may not be necessary at the stage of investigation would be apparent from a perusal of Clause 39.9 of the 41st Report, and clause 31 of the 48th Law Commission Report which contain the objects and reasons for introducing the said provision. Clause 39.9 of the 41st and clause 31 of the 48th Law Commission Report are being reproduced herein below:
39.9. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The 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, remain in prison for some days and then apply for bail.
We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only in the High Court and the Court of Sessions, and that the order should take effect at the time of arrest or thereafter.
31. The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission (41st Report). We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.
We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the public prosecutor. The initial order should only be an interim one. Further the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the Court is satisfied that such a direction is necessary in the interests of justice.
It will also be convenient to provide that the notice of the interim order as well as of the final orders will be given to the Superintendent of Police forthwith.
(Emphasis added)
120. However, the State of U.P. in its wisdom by Section 9 of Act No. 16 of 1976, which became effective from 1.5.1976, has chosen to omit Section 438 Cr.P.C in the State of U.P. Two Division Benches of this Court, in Vijai Kumar Verma v. State of U.P. and Ors. 2002 (2) JIC 429 (All) decided on 29.7.2002 comprising of Justice M. Katju and Justice K.N. Sinha and another D.B., Crl. Misc. Writ Petition No. 5774 of 2006, Smt. Sudama and Ors. v. State of U.P. and Ors. in which orders were passed on 9.5.2006, (wherein I was a member) have strongly urged the State Government to consider restoring Section 438 Cr.P.C. in the State of U.P.
121. It is pointed out in the said cases that for minor matters where the accused may have been implicated owing to political rivalry or where there is no danger of the accused absconding nor is the arrest of the accused necessary for the purpose of custodial interrogation, identification or getting any recovery effected the provision of anticipatory bail is the proper remedy. It was further observed in the aforesaid Division Benches that there is no justifiable reason for excluding this provision from the State of. U.P., when it exists in every other state, in its present or slightly modified form (as in Orissa, West Bengal and Maharashtra). There is also no evidence to suggest that absence of this provision in U.P. has helped improve the law and order situation in U.P., in any manner. Precautions can be taken for ensuring that the provision if re-introduced in U.P. is not misused, by confining the power only for a limited period, or till submission of charge-sheet and making surrender before the Court concerned, a pre-condition for an application for regular bail under Section 439 Cr.P.C. If the legislatures so desire, the provision of anticipatory bail could be denied in grave cases of murder, dacoity, rape, abduction or Prevention of Corruption Act, NDPS Act etc. Well defined parameters for exercise of powers under Section 438 Cr.P.C. have been laid down in various decisions of the Apex court which are described in the D.B. order in Smt. Sudama and Ors. v. State of U.P. and Ors. (supra).
122. Restoring the provision of anticipatory bail in U.P. would reduce unnecessary work load and free at least 6 Allahabad High Court judges (and additionally 3 or 4 judges at the Lucknow bench of the High Court) who are presently engaged in hearing thousands of petitions which are filed every year under Article 226 and under 482 Cr.P.C in these essentially temporary matters for staying arrests at the stage of investigation, who may then be available for final disposal of the approximately 60,000 pending criminal appeals and other important matters whose non-disposal have caused a veritable crisis in the criminal justice system. Anticipatory bail orders are usually passed after giving notice to the State and the Investigating Officer, and not ex parte, as are orders passed under Article 226 of the Constitution, because counsel argue that that if instructions are awaited the petition may become infructuous as the accused may be arrested meanwhile. Arrests have even been stayed in grave cases of murder, rape, dacoity abduction, under the Prevention of Corruption Act, or cases of financial and other scams or where accused are absconding, not co-operating or they are needed for custodial interrogation, effecting recoveries under Section 27 of the Evidence Act or for obtaining their hand writings, or thumb marks or they have to be put up for identification. The interim orders staying arrests having been obtained ex parte because of misinformation or incomplete information furnished by counsel, in the absence of instructions from investigating officers. An order of anticipatory bail on the other hand passed by the Sessions Judge could be passed after obtaining instructions from the locally based investigating officer and would be subject to greater control and judicial review by the High Court. Hence there is little reason to suspect that there would be any misuse if Sessions Courts and the High Court are entrusted with powers of anticipatory bail. Moreover an order of anticipatory bail where the accused needs to fill up bonds and produce sureties for his appearance is a better guarantee to ensure the appearance of the accused in Court during trial or for the purpose of investigation when needed, compared to an unconditional order staying arrest under Article 226 passed by the High Court.
123. However in view of the omission of Section 438 Cr.P.C from the State of U.P., I am of the opinion that it is not permissible to introduce anticipatory bail by the back door by taking recourse to Article 226 of the Constitution of India for staying arrest unless it is one of the rarest of rare exceptional cases where the FIR discloses no cognizable offence or the case is covered in the parameters mentioned in Bhajan Lal and other cases dealing with powers of High Court to quash an FIR and Investigation. It is true that on this interpretation, relief may have to be denied to petitioners in petty cases where accused may have been implicated in a mala fide manner due to political rivalries or in cases of 498 A IPC where entire families have been Indiscriminately roped in or where there arrests may not be strictly needed during investigation. This may also result in disquiet and protest from the general public.
124. However the blame for this problem must squarely be laid at the door of the legislature which has taken away a salutary power, and has left the public without remedy in a suitable case. If the said power of anticipatory bail is omitted in ail matters, without exception in the State of U.P., it is for the legislatures to face the political fall out and consequences of this omission. The High Court cannot do indirectly what it cannot do directly and lay down bad law by arrogating to itself powers to pass orders under Article 226 staying arrests which are in effect a subterfuge for orders of anticipatory bail for the purpose of bailing out legislatures for their actions or inactions, or treat a cognizable case as a non-cognizable case for the purpose of interfering with the power of arrest during investigation.
125. In this view of the matter I concur with the answer given by Brother Chauhan J to the first question that Satyapal's case has laid down the correct law on when arrests may be stayed during investigation and that the observations in Joginder Kumar's case has no relevance on the matter, However so far as the second question posed by the referring Division bench is concerned, my answer is that the Full Bench in Satyapal's case was right in holding that Joginder Kumar's case was delivered on its own peculiar facts and does not lay down any legal principles relating to the power of arrest and the power of staying of arrest by this Court, and I affirm the view taken by the Full Bench in Satyapal's case also on this point.
126. I agree with Brother Chauhan J that the petition needs to be dismissed both on merits, resulting in the rejection of the reference, and because the petition has become infructuous due to submission of the charge sheet.