TMI Blog2006 (7) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 crimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onferring 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 defini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it 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 cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tempt 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 entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR 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-bai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uation 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 av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rue 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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