TMI Blog2017 (1) TMI 1683X X X X Extracts X X X X X X X X Extracts X X X X ..... iligent duty on the Court. In the instant case, the High Court has not referred to allegations made in the FIR or what has come out in the investigation. It has noted and correctly that the investigation is in progress and it is not appropriate to stay the investigation of the case. It has disposed of the application Under Section 482 Code of Criminal Procedure and while doing that it has directed that the investigating agency shall not arrest the accused persons. This direction amounts to an order Under Section 438 Code of Criminal Procedure, albeit without satisfaction of the conditions of the said provision. This is legally unacceptable. In RANJIT SINGH VERSUS STATE OF M.P. AND ORS. [ 2013 (9) TMI 1240 - SUPREME COURT] the High Court had directed that considering the nature of the allegation and the evidence collected in the case-diary, the Petitioner shall surrender before the competent court and shall apply for regular bail and the same shall be considered upon furnishing necessary bail bond. The said order was challenged before this Court. In Hema Mishra v. State of Uttar Pradesh and Ors. HEMA MISHRA VERSUS STATE OF UP [ 2014 (1) TMI 1771 - SUPREME COURT] , the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee accused persons, namely, accused Nos. 1, 2 and 5, (Respondent Nos. 1, 2 and 3 herein) invoked inherent jurisdiction of the High Court in Criminal Petition No. 10012 of 2014 for quashing of the FIR and consequential investigation. As the impugned order would show, the learned single Judge referred to the FIR and took note of the submissions of the learned Counsel for the Petitioners therein that all the allegations that had been raised in the FIR were false and they had been falsely implicated and thereafter expressed his disinclination to interfere on the ground that it was not appropriate to stay the investigation of the case. However, as a submission had been raised that the accused persons were innocent and there had been allegation of false implication, it would be appropriate to direct the police not to arrest the Petitioners during the pendency of the investigation and, accordingly, it was so directed. 3. It is submitted by Mr. Harin P. Raval, learned senior Counsel appearing for the State that the informant had sustained grievous injuries and was attacked by dangerous weapons and custodial interrogation of the accused persons is absolutely essential. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore it and not until then. 6. Having stated what lies within the domain of the investigating agency, it is essential to refer to the Constitution Bench decision in Lalita Kumari v. Government of Uttar Pradesh and Ors. (2014) 2 SCC 1. The question that arose for consideration before the Constitution Bench was whether a police officer is bound to register a first information report upon receiving any information relating to commission of a cognizable offence Under Section 154 Code of Criminal Procedure or the police officer has the power to conduct a 'preliminary inquiry' in order to test the veracity of such information before registering the same ? While interpreting Section 154 Code of Criminal Procedure, the Court addressing itself to various facets opined that Section 154(1) Code of Criminal Procedure admits of no other construction but the literal construction. Thereafter it referred to the legislative intent of Section 154 which has been elaborated in State of Haryana and Ors. v. Bhajan Lal and Ors. AIR 1992 SC 604 and various other authorities. Eventually the larger Bench opined that reasonableness or credibility of the information is not a condition preced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. 9. Be it noted, certain directions were issued by the Constitution Bench, which we think, are apt to be extracted: 120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hivalingappa Konjalgi AIR 1976 SC 1947, Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre (1988) 1 SCC 692 : AIR 1988 SC 709, State of Bihar v. Murad Ali Khan (1988) 4 SCC 655 : AIR 1989 SC 1 and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power Under Article 226 of the Constitution or inherent power Under Section 482 Code of Criminal Procedure could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court also observed that it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad cases wherein such power should be exercised. The illustrations given by the Court need to be recapitulated: (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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt to be more cautious. It casts an onerous and more diligent duty on the Court. 13. In this regard, it would be seemly to reproduce a passage from Kurukshetra University (supra) wherein Chandrachud, J. (as His Lordship then was) opined thus: 2. It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers Under Section 482 of the Code of Criminal Procedure, it could quash a first information report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realised that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. 14. We have referred to the said decisions only to stress upon the issue, how the exercise of jurisdiction by the High Court in a proceeding relating to quashment of FIR can be justified. We repeat even at the cost of repetition that the said power has to be exercised in a very sparing manner and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surrender. When the High Court in categorical terms has expressed the view that it is not inclined to grant anticipatory bail to the Petitioner-accused it could not have issued such a direction which would tantamount to conferment of benefit by which the accused would be in a position to avoid arrest. It is in clear violation of the language employed in the statutory provision and in flagrant violation of the dictum laid down in Gurbaksh Singh Sibbia (supra) and the principles culled out in Savitri Agarwal (supra). It is clear as crystal the court cannot issue a blanket order restraining arrest and it can only issue an interim order and the interim order must also conform to the requirement of the Section and suitable conditions should be imposed. Elaborating further, the Court held: 36. In the case at hand the direction to admit the accused persons to bail on their surrendering has no sanction in law and, in fact, creates a dent in the sacrosanctity of law. It is contradictory in terms and law does not countenance paradoxes. It gains respectability and acceptability when its solemnity is maintained. Passing such kind of orders the interest of the collective at la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 453. In the said judgment, the Court was dealing with the power of the High Court of Allahabad pertaining to grant of pre-arrest bail in exercise of extraordinary or inherent jurisdiction and it is significant, for in the State of Uttar Pradesh Section 438 Code of Criminal Procedure has been deleted by the State Legislature. Be it noted that constitutional validity of the said deletion was challenged before the Constitution Bench in Kartar Singh v. State of Punjab (1994) 3 SCC 569 wherein it has been held that deletion of the application of Section 438 Code of Criminal Procedure in the State of Uttar Pradesh is constitutional. The Constitution Bench has ruled held that claim for pre-arrest protection is neither a statutory nor a right guaranteed Under Article 14, Article 19 or Article 21 of the Constitution of India. The larger Bench has further observed thus: 368. (17) Though it cannot be said that the High Court has no jurisdiction to entertain an application for bail Under Article 226 of the Constitution and pass orders either way, relating to the cases under the 1987 Act, that power should be exercised sparingly, that too only in rare and appropriate cases in extreme c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts have very wide powers Under Article 226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the judicial consideration and well-established principles, so much so that while entertaining writ petitions for granting interim protection from arrest, the Court would not go on to the extent of including the provision of anticipatory bail as a blanket provision. It has been further observed that such a power has to be exercised very cautiously keeping in view, at the same time, that the provisions of Article 226 are a device to advance justice and not to frustrate it. The powers are, therefore, to be exercised to prevent miscarriage of justice and to prevent abuse of process of law by the authorities indiscriminately making pre-arrest of the accused persons. In entertaining such a petition Under Article 226, the High Court is supposed to balance the two interests. On the one hand, the Court is to ensure that such a power Under Article 226 is not to be exercised liberally so as to convert it into Section 438 Code of Criminal Procedure proceedings, keeping in mind that when this provision is specifically omitted i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 482 Code of Criminal Procedure are passing orders that if the Accused-Petitioner surrenders before the trial magistrate, he shall be admitted to bail on such terms and conditions as deemed fit and appropriate to be imposed by the concerned Magistrate. Sometimes it is noticed that in a case where sessions trial is warranted, directions are issued that on surrendering before the concerned trial judge, the accused shall be enlarged on bail. Such directions would not commend acceptance in light of the ratio in Rashmi Rekha Thatoi (supra), Gurbaksh Singh Sibbia (supra), etc., for they neither come within the sweep of Article 226 of the Constitution of India nor Section 482 Code of Criminal Procedure nor Section 438 Code of Criminal Procedure. This Court in Ranjit Singh (supra) had observed that the sagacious saying a stitch in time saves nine may be an apposite reminder and this Court also painfully so stated. 25. Having reminded the same, presently we can only say that the types of orders like the present one, are totally unsustainable, for it is contrary to the aforesaid settled principles and judicial precedents. It is intellectual truancy to avoid the precedents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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