TMI Blog2008 (1) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunate incident had occurred on 13th December, 2005 in which late Smt. Pratibha Srikant Murthy was stated to have been murdered on her way to work from her residence. Pursuant to the aforesaid incident a complaint was filed on 27th December, 2005 against the appellant alleging violation of Sections 25 and 30(3) of the Act before the Metropolitan Magistrate. On 30th December, 2005, the Metropolitan Magistrate took cognizance of the offences under aforesaid sections of the Act. On 23rd March, 2006, a petition under Section 482 of the Code of Criminal Procedure for quashing of the complaint and cognizance was filed before the High Court. The High Court, by its impugned order dated 28th March, 2006, dismissed the petition. Hence, the present appeal by special leave. 4. The High Court, by its impugned order, has altered the cognizance taken by the Magistrate under Section 25 read with Section 30(3) to that one under Section 25 read with Section 30(1) of the Act. The High Court was of the view that taking cognizance against the appellant cannot be found fault with and dismissed the petition. 5. It is noticed, therefore, that petition under Section 482 was filed at the thresho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the complaint and that the extra-ordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whims and caprice. 11. We now refer to a few decisions of this Court deprecating the exercise of extra ordinary or inherent powers by the High Court according to its whims and caprice. 12. In State of Bihar v. J.A.C. Saldanha 1980 CriLJ 98 this Court pointed out at SCC p. 574: The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its cue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more. 13. In Hazari Lal Gupta v. Rameshwar Prasad 1972 CriLJ 298 this Court at SCC p. 455 pointed out: In exercising jurisdiction under Section 561-A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 FIR 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 a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny observations made by this Court or the High Court. The trial court shall decide the maintainability of the complaint at the time of consideration of the charge. We further make it clear that it is open to the parties to urge all the contentions as available under the law, including the maintainability of the complaint before the trial judge at the time of consideration of this charge. With these observations and directions, the appeal is dismissed. Markandey Katju, J. 22. I have perused the judgment of my learned brother Hon'ble H.K. Sema, J. in this appeal. 23. I respectfully agree with his conclusion that the appeal be dismissed but only because of the observations in his judgment that we are not expressing any opinion on the merits of the case. However, I think it is necessary to give my separate concurrent judgment in this case. 24. The appellant before us, Mr. Som Mittal, is the Managing Director of Hewlett Packard Global Soft Ltd. He filed a petition under Section 482, Cr.P.C. before the Karnataka High Court challenging the order dated 30.12.2003 passed by the Metropolitan Magistrate Traffic Court III, Bangalore, taking cognizance of an offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner dated 26.12.2005 addressed to the Labour Commissioner, and in the said letter it is stated that adequate security had not been provided to the said woman employee during her travel from her home to the workplace. It is on the basis of this letter that the complaint was filed on the basis of which cognizance was taken by the learned Magistrate. 29. Shri K.K. Venugopal, learned Counsel for the appellant, has invited our attention to Section 3(1)(h) of the Act which states: 3(1) Nothing in this Act shall apply to - (h) person occupying positions of management in any establishment. 30. We agree with Shri Venugopal that the Managing Director is surely a person occupying a position of management in the establishment and hence Section 3(1)(h) is clearly attracted to the facts of this case. 31. However, learned Counsel for the State Government has relied on Section 2(h) of the Act which states: 2(h) Employer means a person having charge of or owning or having ultimate control over the affairs of an establishment and includes members of the family of an employer, a manager, agent or other person acting in the general management or control of an estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of Uttar Pradesh where due to deletion of the provision for anticipatory bail under Section 438 Cr.P.C. by Section 9 of the U.P. Act 16 of 1976, huge difficulties have been created both for the public as well as for the Allahabad High Court. 38. It may be noted that in U.P. such provision for anticipatory bail has been deleted while it continues to exist in all other States in India, even in terrorist affected States. The result is that thousands of petitions under Section 482 are filed every year in Allahabad High Court praying for stay of arrest or for quashing the FIR, because in the absence of the provision of anticipatory bail many persons who are innocent cannot get anticipatory bail even though the FIR filed against them may be frivolous and/or false. Even if such persons get regular bail under Section 439, before that they will have to go to jail, and thus their reputation in society may be irreparably tarnished. 39. It has been held by this Court in Joginder Kumar v. State of U.P. and Ors. 1994 CriLJ 1981 that No arrest can be made power to arrest is one thing and the justification for the exercise of it is quite another. The Police Officer must be able to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Joginder Kumar's case (supra). 43. Again in Section 157(1) Cr.P.C. it is mentioned that a police officer shall investigate a case relating to a cognizable offence, and if necessary take measures for the arrest of the offender. This again makes it clear that arrest is not a must in every case of a cognizable offence. 44. Because of absence of the provision for anticipatory bail in U.P. thousands of writ petitions and Section 482 Cr.P.C. applications are being filed in the Allahabad High Court praying for stay of the petitioner's arrest and/or quashing the FIR. This is unnecessarily increasing the work load of the High Court and adding to the arrears, apart from the hardship to the public, and overcrowding in jails. 45. The right to liberty under Article 21 of the Constitution is a valuable right, and hence should not be lightly interfered with. It was won by the people of Europe and America after tremendous historical struggles and sacrifices. One is reminded of Charles Dicken's novel 'A Tale of Two Cities' in which Dr. Manette was incarcerated in the Bastille for 18 years on a mere lettre de cachet of a French aristocrat, although he was inn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State. During this period the applicant has to go to jail. Hence even if such person subsequently obtains bail his reputation may be irreparably tarnished, as held by the Supreme Court in Joginder Kumar's case (supra). The reputation of a person is a valuable asset for him just as in law the good will of a firm is an intangible asset. In Gita Lord Krishna said to Arjun: सम्भावितस्य चाकीर्तिमरणादतिरिच्यते For a self-respecting man, death is preferable to dishonour (Gita Chapter 2, Shloka 34) 51. No doubt anticipatory bail is not to be granted as a matter of course by the Court but only in accordance with the principles laid down by the Supreme Court in Gurbaksh Singh v. State of Punjab 1980 CriLJ 1125. However, we are of the view that there must be a provision for anticipatory bail in U.P. for the reason already mentioned above. 52. Experience has shown that the absence of the provision for anticipatory bail has been causing great injustice and hardship to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lahabad High Court in Smt. Amarawati and Anr. v. State of U.P. 2005 (1) AWC 416 in which the Full Bench has mentioned that the Sessions Judge while considering a bail application under Section 439 Cr.P.C. can grant interim bail till the final disposal of the bail application subsequently. This will enable innocent persons to avoid going to jail pending consideration of their bail application. 57. I am informed that despite this Seven Judge Full Bench judgment which has clearly mentioned that a Sessions Judge can grant interim bail, the Session Courts in U.P. are ignoring the said judgment and are not granting interim bail pending disposal of the final bail application even in appropriate cases. This is wholly improper. Decisions of this Court and of the High Court must be respected and carried out by the sub-ordinate courts punctually and faithfully. It is, therefore, directed that Amarawati's case (supra) must be implemented in letter and spirit by the Sessions Courts in U.P. and in this connection the Registrar General of Allahabad High Court will circulate letters to all the District Judges in U.P. along with a copy of will circulate letters to all the District Judges i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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