TMI Blog1996 (4) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... not want to comment on the merits and demerits of the case nor we do not want to comment on the allegations made in the application for stay of arrest by the petitioner as they are to be finally evaluated in trial. We would have allowed the permission to withdraw the writ petition but recently Supreme Court happened to observe in State of Maharashtra v. Ishwar Piraji Kalpatri, (1996) 1 SCC 542: (AIR 1996 SC 722). It appears strange that when a petition had been filed in the High Court, judgment obtained and the losing party comes to the Superior Court, then in order to avoid an unfavourable order, a request should be made for the withdrawal of the original proceeding in an effort to avoid an adverse decision from the Superior Court with a view to reagitate the same contentions once again before the subordinate Court. A party to the proceedings cannot be allowed at this stage at least to take a chance and if he gets the impression that he will not succeed to seek permissioon to withdraw the original proceeding obviously with a view to reagitate the same contentions, which have been or may be adjudicated upon by a higher Court, before the subordinate Court though in different pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and examine the persons acquainted with the facts of the case under Sections 160 and 161 of Cr. P.C. The powers have been given to the police officer to effect recovery, search of the site, incriminating articles connected with the crime and personal search of the accused. This is a process of collection of facts during investigation. 7. There is vast power given to the police officer under Section 41 of the Cr. P.C. Any police officer may without an order from a Magistrate and without a warrant, arrest any person who has been concerned in 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. Again emphasis has been laid down on credible information and reasonable suspicion and no more. Soon after the arrest of the person the legislature has given time to produce the accused within 24 hours before a Magistrate to get further remand to police for investigation of the case. The maximum period of remand under Section 167, Cr. P.C. is fifteen days and during this process police officer make frequent use of provision of Section 27 of the Evidence Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 85 and Terrorists and Disruptive Activities (Prevention) Act, 1987 to meet the challenge and made drastic provision not to release the accused on bail to curb the crime. 10. The idea of formation of a State by the people is to protect their life, liberty and security so that there is a social order and people can live peaceful life and pursue their pursuits of life and attain maximum happiness. People want to attain this object entered into contract with the Government and surrendering limited sovereignity. A person has a fundamental right to live and has no right to die under Article 21 of the Indian Constitution. When a person dies unnatural death i.e. may be on account of murder, the society is interested through instrumentality of State Government to have a fairspeedy investigation and fair trial so that justice is done. The accused's liberty is as important as peace and social order of the society. So ultimately there has to be balancing of interests of accused and of the society. Who figure first than the accused? Obviously society interest as a whole. So in these circumstances can a police officer be stopped at the very threshold investigation when the first informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent catena of judicial precedents of apex Court has loathed.the practice of High Courts of quashing the first information report under Section 482. Cr. P.C. The idea of quashing the first information report at the very threshhold is that the High Court cannot assume the role of a trial Court and by pass so many stages of Cr. P.C. as mentioned above. When the legislature has provided that if the High Court starts quashing the first information report in each and every case except in rare cases, it would amount abuse of process of judicial power over the society and the society will not get criminal justice. The society will then come to old state of nature. Political Philospher Hobbes described it. It was nasty, brutal and cruel . We would be reverting in that eventuality to the theory of criminal justice tooth for tooth and eye for eye. There will be complete social chaos and disorder. The crime will be flourishing and so security of life and property would come to an end. 14. We would like to refer the judgment of Hon'ble Supreme Court in State of Maharashtra v.Ishwar Piraji Kalpatri,(1996) 1 SCC 542:(AIR 1996 SC 722) on quashing of the first information report: -- I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-sheet and the statements of witnesses on the record in support thereof whether Court could take cognizance of the offence, on that evidence and proceed further with the trial. If it reaches a conclusion that no cognisable offence is made out no further act could be done except to quash the charge sheet. But only in exceptional cases, i.e. in rarest of rare case of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognisable offence the Court may embark upon the consideration thereof and exercise the power. When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Section 482 of the Code is available. When the Court exercises its inherent power under Section 482 the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the processes of the Court. When investigation officer spends considerable time to collect the evidence and places the charge-sheet before the Court, further action should not be short-circuited b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions Court enjoy vast powers in the facts and circumstances of each case after examining the material collected during investigation and going through the case diary to grant or reject the bail after affording the opportunity to the prosecution. It cannot be said that the suspected accused is without remedy. 21. Now question would arise that in Indian society there is tendency in some cases of lodging false complaints/vexatious and frivolous first information report to wreak vengence on account of so many factors, political vendetta, personal enimity etc. In that eventuality what is the remedy of the petitioner, if the petitioner is arrested and later on the complaint is found to be false or vexatious. The legislature is left to the satisfaction of the police officer whether to proceed with the investigation or not and it is for the legislature to take steps or to think about it and appoint competent and intelligent police officers in the changing complex of indian society. The Courts have been liberal in granting compensation against illegal arrest by the police officer. 22. Regarding harassement during investigation, the provision has been made under Section 54 of Cr. P.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven to High Court under Article 226 is an extraordinary power not only to correct the manifest error but also to exercise it for sake of justice. Under the scheme of the Constitution a High Court is the highest Court for purposes of exercising civil appellate, criminal or even constitutional jurisdiction so far that State is concerned. The jurisdiction possessed by it before coming into force of the Constitution was preserved by Article 225 and by Articles 226 and 227 an extraordinary jurisdiction was conferred on it to ensure that the subordinate authorities act not only in accordance with law but they also function within the framework of law. That jurisdiction of the High Court has not been taken away and in fact could not be taken away by legislation. In England even in absence of Constitution whenever an attempt was made by Parliament to provide that the order was final and no writ of certiorari would lie the High Court always struck down the provision. Since the High Court under the Constitution is a forum for enforcement of fundamental right of a citizan it cannot be denied the power to entertain a petition by a citizen claiming that the State machinery was abusing its powe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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