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2014 (1) TMI 1771 - SUPREME COURT

2014 (1) TMI 1771 - SUPREME COURT - 2014 AIR 1066, 2014 (1) SCR 465, 2014 (4) SCC 453, 2014 (2) JT 26, 2014 (1) SCALE 342 - Anticipatory bail - invoking jurisdiction of the High Court under Article 226 - Held that:- It compulsory for the police to issue a notice in all such cases where arrest is not required to be made under Clause (b) of sub-section (1) of the amended Section 41. But, all the same, unwillingness of a person who has not been arrested to identify himself and to whom a notice has .....

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diction of the High Court under Article 226 of the Constitution of India, being extraordinary jurisdiction and the vastness of the powers naturally impose considerable responsibility in its application. All the same, the High Court has got the power and sometimes duty in appropriate cases to grant reliefs, though it is not possible to pin-point what are the appropriate cases, which have to be left to the wisdom of the Court exercising powers under Article 226 of the Constitution of India. - .....

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ing further relief after dismissal of the writ, does not arise. Consequently, once a writ is dismissed, all the interim reliefs granted would also go. - This Court has already passed an interim order on 1.3.2013 granting bail to the appellant on certain conditions. The said order will continue till the completion of the trial. However, if the appellant is not co-operating with the investigation, the State can always move for vacating the order. The appeal is accordingly dismissed as above. .....

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h is consciously denied statutorily making it a case of casus omissus. At the same time, as rightly observed the High Court cannot be completely denuded of its powers under Article 226 of the Constitution, to grant such a relief in appropriate and deserving cases; albeit this power is to be exercised with extreme caution and sparingly in those cases where arrest of a person would lead to total miscarriage of justice. - Criminal Appeal No. 146 of 2014 - Dated:- 16-1-2014 - K.S. Radhakrishnan And .....

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sue a writ, order or direction in the nature of Mandamus thereby directing the Superintendant of Police, Barabanki, the opposite Party No. 2, and the Investigating Officer, Case Crime No. 797/11, under Sections 419/420 IPC, Police Station, Zaidpur, District Barabanki, the opposite party No. 3, to defer the arrest of the petitioner until collection of the credible evidence sufficient for filing the charge-sheet by following the amended proviso to Sections 41(1)(b) read with Section 41A CrPC; iii) .....

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ll as the State, dismissed the writ petition on 9.1.2012 and passed the following order: Heard learned counsel for the petitioner and learned Additional Government Advocate. Under challenge in the instant writ petition is FIR relating to Case Crime No. 797 of 2011, under Sections 419 & 420 IPC, police station Zaidpur, district Barabanki. We have gone through the FIR, which discloses commission of cognizable offence, as such, the same cannot be quashed. The writ petition lacks merit and is ac .....

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ticipatory bail to the appellant. Appellant submitted that the High Court ought to have issued a writ of mandamus directing the Superintendent of Police, Barabanki to defer the arrest of the appellant until the collection of credible evidence sufficient for filing the charge-sheet, following the amended proviso to Section 41(1)(b) read with Section 41A Cr. P.C. 5. The Secretary, U.P. Secondary Education Board, Allahabad and the District School Inspector vide their letter dated 8.12.2011 register .....

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olice Station, Jaizpur, District Barabanki. After having come to know of the registration of the crime, the appellant filed a representation on 27.12.2011 before the Superintendent of Police, District Barabanki and the Investigating Officer making the following prayer: As such through this application/representation the applicant prays that keeping in view the willingness of the applicant for cooperating in investigation and to appear before the investigating officer upon being called in case cr .....

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en the matter came up for hearing before this Court, it passed an interim order on 1.3.2013, the operative portion of which reads as under: Considering the facts and circumstances of the case, we are inclined to direct that in the event of arrest of the petitioner, she shall be released on bail on furnishing personal bond of ₹ 50,000/- (Fifty Thousand only) with two solvent sureties for the like amount to the satisfaction of the Trial Court, subject to the condition that she will join inve .....

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nsel submitted that the appellant was falsely implicated and that the ingredients of the offence under Sections 419/420 IPC were not prima facie made out for registering the crime. Learned counsel also pointed out that the High Court has not properly appreciated the scope of Sections 41(1)(b) and 41A CrPC, 1973 and that no attempt has been made to follow those statutory provisions by the State and its officials. 9. Shri Gaurav Bhatia, learned AAG, appearing for the State, submitted that the inve .....

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request, submitted that the High Court can in only rarest of rare cases grant pre-arrest bail while exercising powers under Article 226 of the Constitution of India, since the provision for the grant of anticipatory bail under Section 438 Cr. P.C. was consciously omitted by the State Legislature. The legislative intention is, therefore, not to seek or provide pre-arrest bail when the FIR discloses a cognizable offence. Shri Luthra submitted that since there is a conscious withdrawal/deletion of .....

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Article 21 of the Constitution of India, the contention that the High Court has failed to examine the charges levelled against the appellant, was mala fide or violative of Articles 14 and 21 of the Constitution of India, does not arise. Shri Luthra also submitted that the High Court was not correct in granting further reliefs after having dismissed the writ petition and that, only in extraordinary cases, the High Court could exercise its jurisdiction under Article 226 of the Constitution of Indi .....

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a seeking pre-arrest bail. Section 438 was added to the Code of Criminal Procedure in the year 1973, in pursuance to the recommendation made by the 41st Law Commission, but in the State of Uttar Pradesh by Section 9 Criminal Procedure (Uttar Pradesh) Amendment Act, 1976, Section 438 was specifically omitted, the legality of which came up for consideration before the Constitution Bench of this Court in Kartar Singh v. State of Punjab (1994) 3 SCC 569 and the Court held that the deletion of the ap .....

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a statutory nor a right guaranteed under Article 14, Article 19 or Article 21 of the Constitution of India. All the same, in Karatar Singh s case (supra), this Court in sub-para (17) of Para 368, has also stated as follows: 368 xxx xxx xxx (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 Act 1987, that power should be exercised sparingly, th .....

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. & Another (1998 Cri.L.J. 2366), Kamlesh Singh v. State of U.P. & Another (1997 Cri.L.J. 2705) and Natho Mal v. State of U.P. (1994 Cri.L.J. 1919). 16. We have, therefore, no concept of anticipatory bail as understood in Section 438 of the Code in the State of Uttar Pradesh. In Balchand Jain v. State of M.P. (1976) 4 SCC 572, this Court observed that anticipatory bail is a misnomer. Bail, by itself, cannot be claimed as a matter of right under the Code of Criminal Procedure, 1973, excep .....

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mt. Amarawati and Ors. V. State of U.P. (2005) Cri.L.J. 755, wherein the Court, while interpreting the provisions of Sections 41, 2(c) and 157(1) CrPC as well as the scope of Sections 437 and 439, held as follows: 47. In view of the above we answer the questions referred to the Full Bench as follows: (1) Even if cognizable offence is disclosed, in the FIR or complaint the arrest of the accused is not a must, rather the police officer should be guided by the decision of the Supreme Court in Jogin .....

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e and exceptional case not to decide it on the same day, he must record his reasons in writing. As regards the application under Section 439 Cr.P.C. it is in the discretion of the learned Sessions Judge considering the facts and circumstances whether to decide the bail application the same day or not, and it is also in his discretion to grant interim bail the same day subject to the final decision on the bail application later. (3) The decision in Dr. Vinod Narain v. State of UP is incorrect and .....

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lahabad High Court held that the court, if it deems fit in the facts and circumstances of the case, may grant interim bail pending final disposal of the bail application. The Full Bench also observed that arrest is not a must whenever an FIR of a cognizable offence is lodged. The Full Bench placed reliance on the decision of this Court in Joginder Kumar v. State of U.P. (1994) 4 SCC 260. 7. We fully agree with the view of the High Court in Amarawati case and we direct that the said decision be f .....

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be guided and act according to the principles laid down in Joginder Kumar case. 18. Later, a two-Judge Bench of this Court in Som Mittal v. State of Karnataka (2008) 3 SCC 753, while dealing with an order of the Karnataka High Court under Section 482 CrPC, one of the Judges made some strong observations as well as recommendations to restore Section 438 in the State of U.P. Learned Judges constituting the Bench also expressed contrary views on certain legal issues, hence, the matter was later pla .....

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um of three years and seven years respectively with or without fine. Benefit of Section 41(a) Cr. P.C. must be available in a given case, which provides that an investigating officer shall not arrest the accused of such offences in a routine manner and the arrest be made, only after following the restrictions imposed under Section 41(b). The relevant provisions, as it stands now reads as follow: 41. When police may arrest without warrant.- (1) Any police officer may without an order from a Magis .....

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ce officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; ii) the police officer is satisfied that such arrest is necessary - a) to prevent such person from committing any further offence; or b) for proper investigation of the offence; or c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner, or d) to prevent such person from making any inducem .....

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e reasons in writing for not making the arrest. 20. Amended provisions make it compulsory for the police to record the reasons for making arrest as well as for not making an arrest in respect of a cognizable offence for which the maximum sentence is upto seven years. Reference in this connection may also be made to Section 41A inserted vide Act 5 of 2009 w.e.f. 01.11.2010, which reads as follows: 41A. Notice of appearance before police officer - (1) The police officer shall, in all cases where t .....

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ce. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the .....

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h itself is a check on arbitrary or unwarranted arrest and the right to personal liberty guaranteed under Article 21 of the Constitution of India. 22. I may, however, point out that there is unanimity in the view that in spite of the fact that Section 438 has been specifically omitted and made inapplicable in the State of Uttar Pradesh, still a party aggrieved can invoke the jurisdiction of the High Court under Article 226 of the Constitution of India, being extraordinary jurisdiction and the va .....

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n of India, while examining the challenge for quashing the FIR or a charge-sheet, whether the High Court could grant further relief against arrest for a specific period or till the completion of the trial. This Court in State of Orissa v. Madan Gopal Rungta reported in AIR 1952 SC 12, while dealing with the scope of Article 226 of the Constitution, held as follows :- Article 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application. The direction .....

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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, f .....

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, all the interim reliefs granted would also go. 25. This Court has already passed an interim order on 1.3.2013 granting bail to the appellant on certain conditions. The said order will continue till the completion of the trial. However, if the appellant is not co-operating with the investigation, the State can always move for vacating the order. The appeal is accordingly dismissed as above. A.K. SIKRI, J. 1. I have carefully gone through the judgment authored by my esteemed brother, Justice Rad .....

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I would like to start with reproducing the following observations in the opinion of my brother, on this aspect which are contained in paragraph 21 of the judgment. It reads as under: We may, however, point out that there is unanimity in the view that in spite of the fact that Section 438 has been specifically omitted and made inapplicable in the State of Uttar Pradesh, still a party aggrieved can invoke the jurisdiction of the High Court under Article 226 of the Constitution of India, being ext .....

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is that many times in the Writ Petition filed under Article 226 of the Constitution of India seeking quashing of the FIR or the charge-sheet, the petitioners pray for interim relief against arrest. While entertaining the Writ Petition the High Court invariably grants such an interim relief. It is rightly pointed out that once the Writ Petition claiming main relief for quashing of FIR or the charge-sheet itself is dismissed, the question of granting further relief after dismissal of the Writ Pet .....

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the primary motive for filing such petitions. It is for this reason that invariably after the lodging of FIR, Writ Petition under Article 226 is filed with main prayer to quash those proceedings and to claim interim relief against pre-arrest in the meantime or till the completion of the trial. However, the considerations which have to weigh with the High Court to decide as to whether such proceedings are to be quashed or not are entirely different than that of granting interim protection agains .....

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ution of India where the main relief itself is against arrest. Obviously, when provisions of Section 438 of Cr. P.C. are not available to the accused persons in the State of Uttar Pradesh, under the normal circumstances such an accused persons would not be entitled to claim such a relief under Art. 226 of the Constitution. It cannot be converted into a second window for the relief which is consciously denied statutorily making it a case of casus omissus. At the same time, as rightly observed in .....

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ould be appropriate to grant the relief against pre-arrest in such cases. What would be those cases will have to be left to the wisdom of the High Court. What is emphasized is that the High Court is not bereft of its powers to grant this relief under Art. 226 of the Constitution. A Bench of this Court, headed by the then Chief Justice Y.V. Chandrachud, laid down first principles of granting anticipatory bail in the Gurbaksh Singh v. State of Punjab 1980 Crl. L.J. 417 (P&H), reemphasizing tha .....

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tion 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 h .....

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on frivolous grounds at the instance of the unscrupulous or irresponsible persons who may be in charge of the prosecution. An order of anticipatory bail does not in any way, directly or indirectly; take away for the police their right to investigate into charges made or to be made against the person released on bail. 7. The purposes for which the provisions of anticipatory bail are made are quite obvious. One of the purposes of the arrest is that the accused should be available to the investigat .....

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der. 8. I would also like to reproduce certain paragraphs from Kartar Singh and Ors. V. State of Punjab (1994) 3 SCC 569, wherein Justice K. Ramaswamy, speaking for the Court, discussed the importance of life and liberty in the following words. The foundation of Indian political and social democracy, as envisioned in the preamble of the Constitution, rests on justice, equality, liberty and fraternity in secular and socialist republic in which every individual has equal opportunity to strive towa .....

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ious right in a civilized society. The trinity i.e. liberty, equality and fraternity always blossoms and enlivens the flower of human dignity. One of the gifts of democracy to mankind is the right to personal liberty. Life and personal freedom are the prized jewels under Art.19 conjointly assured by Art.20(3), 21 and 22 of the Constitution and Art.19 ensures freedom of movement. Liberty aims at freedom not only from arbitrary restraint but also to secure such conditions which are essential for t .....

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eedom can never exist without order. Freedom and order may coexist. It is essential that freedom should be exercised under authority and order should be enforced by authority which is vested solely in the executive. Fundamental rights are the means and directive principles are essential ends in a welfare State. The evolution of the State from police State to a welfare State is the ultimate measure and accepted standard of democratic society which is an avowed constitutional mandate. Though one o .....

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dividual liberty with social control. Liberty must be controlled in the interest of the society but the social interest must never be overbearing to justify total deprivation of individual liberty. Liberty cannot stand alone but must be paired with a companion virtue; liberty and morality; liberty and law; liberty and justice; liberty and common good; liberty and responsibility which are concomitants for orderly progress and social stability. Man being a rational individual has to life in harmon .....

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s restraint is enforced on and accepted by all members of the society, the liberty of some must involve the oppression of others. If liberty be regarded a social order, the problem of establishing liberty must be a problem of organizing restraint which society controls over the individual. Therefore, liberty of each citizen is borne of and must be subordinated to the liberty of the greatest number, in other words common happiness as an end of the society, lest lawlessness and anarchy will tamper .....

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s closing speech in the Constituent Assembly, the principles of liberty, equality and fraternity are not to be treated as separate entities but in a trinity. They form the union or trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality. Equality cannot be divorced from liberty. Nor can equality and liberty be divorced from fraternity. Without equality, liberty would produce supremacy of law. Equality without li .....

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on from arrest. This position, in the context of contours of Art.226, is stated as follows in the same judgment: From this scenario, the question emerges whether the High Court under Art.226 would be right in entertaining proceedings to quash the charge-sheet or to grant bail to a person accused of an offence under the Act or other offences committed during the course of the same transaction exclusively triable by the Designated Court. Nothing is more striking than the failure of law to evolve a .....

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ement of any of the fundamental rights or for any other purpose. The legislature has no power to divest the court of the constituent power engrafted under Art.226. A superior court is deemed to have general jurisdiction and the law presumes that the court has acted within its jurisdiction. This presumption is denied to the inferior courts. The judgment of a superior court unreservedly is conclusive as to all relevant matters thereby decided, while the judgment of the inferior court involving a q .....

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ourt. However, acts done by a superior court are always deemed valid wherever they are relied upon. The exclusion thereof from the rule of validity is indispensable in its finality. The superior courts, therefore, are the final arbiters of the validity of the acts done not only by other inferior courts or authorities, but also their own decisions. Though they are immune from collateral attack, but to avoid confusion the superior court s decisions lay down the rules of validity; are not governed .....

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rescinding or otherwise altering it. 10. It would be pertinent to mention here that in light of above mentioned statements and cases, the High Court would not be incorrect or acting out of jurisdiction if it exercises its power under Art.226 to issue appropriate writ or direction or order in exceptional cases at the behest of a person accused of an offence triable under the Act or offence jointly triable with the offences under the Act. 11. It is pertinent to mention that though the High Courts .....

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