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Art.226 of Constitution of India as sec.438 was omitted by Uttara Pradesh State – Sec.419/420 of I.P.C – fraud and forgery in the matter of preparation of documents of Government Office regarding selection for the post of Assistant Teacher – Accused is women – made an application to the S.P. of district from arrest under sec.41 (A) and 1 (B) of Cr.P.C. – no reply – filed writ for quashing of FIR and for bail type relief under sec.41 (A) and 1(B) of Cr.P.C- High court dismissed the same – Apex court granted interim relief like an anticipatory Bail – Whether the court can grant relief under constitutional jurisdiction – Apex court held that in rarest of rare cases can grant the relief in the absence of other provisions = Km. Hema Mishra .. Appellant Versus State of U.P. and Others .. Respondents = 2014 ( January – Vol – 1 -D.B.) Judis.nic.in/ S.C./ file name =41152

Art.226 of Constitution of India as sec.438 was omitted by Uttara Pradesh State – Sec.419/420 of I.P.C – fraud  and forgery in the matter of preparation of documents of Government Office regarding  selection  for  the  post   of   Assistant   Teacher – Accused is women – made an application to the S.P. of district from arrest under sec.41 (A) and 1 (B) of Cr.P.C. – no reply – filed writ for quashing of FIR and for bail type relief under sec.41 (A) and 1(B) of Cr.P.C- High court dismissed the same – Apex court granted interim relief like an anticipatory Bail – Whether the court can grant relief under constitutional jurisdiction – Apex court held that in rarest of rare cases can grant the relief in the absence of other provisions =

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.=

 

The Secretary, U.P. Secondary Education Board, Allahabad and the

      District School Inspector vide their letter dated 8.12.2011 registered

      a complaint alleging  that  the  appellant  had  committed  fraud  and

      forgery in the matter of preparation of documents of Government Office

      regarding  selection  for  the  post   of   Assistant   Teacher   and,

      consequently, got appointment as the Assistant Teacher in Janpad Inter-

      College  at  Harakh,  District  Barabanki,  with  payment  of   salary

      amounting to Rs.1,10,000/- from the  Government  exchequer.    

  On  the

      basis of the FIR, Case Crime No. 797  of  2011  was  registered  under

      Sections 419/420 IPC before  the  Police  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 crime no. 797/11

           u/Ss 419/420 IPC, PS  Jaipdur,  District  Barabanki,  order  for

           staying the arrest of applicant be passed so that compliance  to

           the provision 41(1)(B) Section 41(A) amended  to  CrPC  1973  be

           made.”

 

 

      6.     Since  the  appellant  did  not  get  any  reply  to  the  said

      representation, she invoked the extraordinary jurisdiction of the High

      Court under Article 226 of the Constitution of India  by  filing  Writ

      Petition Misc. Bench No. 171 of 2012 which was dismissed,  as  already

      indicated, on 9.1.2012.

When 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 Rs.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 investigation

           as and when required and shall  abide   by   the  provisions  of

           Section 438(2) of the Code of Criminal Procedure.” =

Shri  Siddharth  Luthra,  Additional  Solicitor  General,   who

      appeared on our 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 Section 438 CrPC  by

      the Legislature from the Code of Criminal Procedure, by Section  9  of

      the Criminal Procedure (Uttar Pradesh) Amendment Act, 1976, the relief

      which otherwise the appellant could not have obtained under the  Code,

      is sought to be obtained indirectly by invoking the writ  jurisdiction

      of the High Court, which is impermissible in law.

I am conscious of the fact that since the provisions similar  to

      Section 438 Cr.P.C. being absent in the State of  Uttar  Pradesh,  the

      High Court is burdened with large number of writ petitions filed under

      Article 226 of the Constitution  of  India  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

      application of Section 438 in the State of Uttar Pradesh by Section  9

      of the above mentioned Amendment Act does not  offend  either  Article

      14, Article 19 or Article 21 of the  Constitution  of  India  and  the

      State Legislature is competent to delete that section, which is one of

      the matters enumerated in the concurrent list, and such a deletion  is

      valid under Article 254(2) of the Constitution of India. =

 

I am also faced with the situation that on dismissal of the  writ

      by the High Court under Article 226  of  the  Constitution  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.   

The language of Article 226 does not permit such  an  action  and

      once the Court finds no merits in the challenge,  writ  petition  will

      have to be dismissed and the question of granting further relief after

      dismissal of the writ, does not arise.  Consequently, once a  writ  is

      dismissed, all the interim reliefs granted would also go.

I have carefully gone through the judgment  authored  by  my  esteemed

brother, Justice Radhakrishnan.   I  entirely  agree  with  the  conclusions

arrived at by my learned brother in the said judgment. 

In entertaining such a petition under Art.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 Art.226 is not to be exercised  liberally  so

as to convert it into Section 438,Cr.P.C. proceedings, keeping in mind  that

when this provision is specifically omitted in the State of  Uttar  Pradesh,

it cannot be resorted to as to back door entry via Art.226.   

On  the  other

hand, wherever the High Court finds that in a given case if  the  protection

against pre-arrest is not given, it would amount  to  gross  miscarriage  of

justice and no case, at all, is made for  arrest  pending  trial,  the  High

Court would be free to grant the relief in the nature of  anticipatory  bail

in exercise of its power under Art. 226 of the Constitution.  

 It  is  again

clarified that this power has to  be  exercised  sparingly  in  those  cases

where it is absolutely warranted and justified.

 

      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.

 

 

 

 

2014 ( January – Vol – 1-D.B.) Judis.nic.in/ S.C./ file name  =41152

 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 146 OF 2014
[Arising out of SLP (Crl.) No.7439 of 2013)

 
Km. Hema Mishra .. Appellant
Versus
State of U.P. and Others .. Respondents

 

 
J U D G M E N T

 

 

 
K. S. RADHAKRISHNAN, J.

 
1. Leave granted.

 
2. Appellant herein had invoked the extraordinary jurisdiction of
the High Court under Article 226 of the Constitution of India seeking
the following reliefs:
i) Issue a writ, order or direction in the nature of Certiorari
thereby quashing the impugned FIR dated 21.12.2011, contained in
Annexure No. 1 to this writ petition, lodged at crime No. 797/11
under Sections 419/420 IPC, at Police Station Zaidpur, District
Barabanki;
ii) Issue 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) Issue a writ, order or direction in the nature of Mandamus
thereby directing the Superintendent of Police, Barabanki, the
opposite party No. 2, for compliance of the provision of
Sections 41(1)(b) and 41A CrPC in the investigation of the
impugned FIR dated 21.12.2011 contained in Annexure No. 1 to
this writ petition, lodged in crime No. 797/11, under Sections
419/420 IPC, Zaidpur, District Barabanki; and
iv) Allow this writ petition with costs.
3. The High Court, after hearing the parties as well 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 accordingly
dismissed.
However, the petitioner being lady, it is provided that if
she surrenders and moves application for bail the same shall be
considered and decided by the courts below expeditiously.”
4. The appellant, complaining that she was falsely implicated in
the case, has approached this Court contending that the High Court had
failed to exercise its certiorari jurisdiction under Article 226 of
the Constitution of India in not quashing the FIR dated 21.12.2011 and
in refusing to grant anticipatory 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 registered
a complaint alleging that the appellant had committed fraud and
forgery in the matter of preparation of documents of Government Office
regarding selection for the post of Assistant Teacher and,
consequently, got appointment as the Assistant Teacher in Janpad Inter-
College at Harakh, District Barabanki, with payment of salary
amounting to Rs.1,10,000/- from the Government exchequer. On the
basis of the FIR, Case Crime No. 797 of 2011 was registered under
Sections 419/420 IPC before the Police 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 crime no. 797/11
u/Ss 419/420 IPC, PS Jaipdur, District Barabanki, order for
staying the arrest of applicant be passed so that compliance to
the provision 41(1)(B) Section 41(A) amended to CrPC 1973 be
made.”
6. Since the appellant did not get any reply to the said
representation, she invoked the extraordinary jurisdiction of the High
Court under Article 226 of the Constitution of India by filing Writ
Petition Misc. Bench No. 171 of 2012 which was dismissed, as already
indicated, on 9.1.2012.
7. When 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 Rs.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 investigation
as and when required and shall abide by the provisions of
Section 438(2) of the Code of Criminal Procedure.”
8. Shri Aseem Chandra, learned counsel appearing for the appellant,
submitted that the High Court has committed an error in not quashing
the FIR, since the registration of the crime was with mala fide
intention to harass the appellant and in clear violation of the
fundamental rights guaranteed to the appellant under Articles 14, 19
and 21 of the Constitution of India. Learned counsel 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 investigation was properly conducted and the crime
was registered. Further, it was also pointed out that the President
has also withheld the assent of the Code of Criminal Procedure (Uttar
Pradesh Amendment) Bill, 2010, since the provisions of the Bill were
found to be in contravention to Section 438 of the Cr.P.C. and hence
the High Court rightly declined the stay sought for under Article 226
of the Constitution of India.
10. Shri Siddharth Luthra, Additional Solicitor General, who
appeared on our 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 Section 438 CrPC by
the Legislature from the Code of Criminal Procedure, by Section 9 of
the Criminal Procedure (Uttar Pradesh) Amendment Act, 1976, the relief
which otherwise the appellant could not have obtained under the Code,
is sought to be obtained indirectly by invoking the writ jurisdiction
of the High Court, which is impermissible in law.
11. Shri Luthra also submitted that since the appellant has no legal
right to move for anticipatory bail and that practice is not an
integral part of 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 India and the case in hand
does not fall in that category.
12. I may indicate that the legal issues raised in this case are no
more res integra. All the same, it calls for a relook on certain
aspects which I may deal with during the course of the judgment.
13. I am conscious of the fact that since the provisions similar to
Section 438 Cr.P.C. being absent in the State of Uttar Pradesh, the
High Court is burdened with large number of writ petitions filed under
Article 226 of the Constitution of India 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
application of Section 438 in the State of Uttar Pradesh by Section 9
of the above mentioned Amendment Act does not offend either Article
14, Article 19 or Article 21 of the Constitution of India and the
State Legislature is competent to delete that section, which is one of
the matters enumerated in the concurrent list, and such a deletion is
valid under Article 254(2) of the Constitution of India.
14. I notice, therefore, as per the Constitution Bench, a 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. 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, that
too only in rare and appropriate cases in extreme
circumstances. But the judicial discipline and comity
of courts require that the High Courts should refrain
from exercising the extraordinary jurisdiction in such
matters;
xxx xxx xxx”
15. The High Court of Allahabad has also taken the same view in
several judgments. Reference may be made to the judgments in Satya
Pal v. State of U.P. (2000 Cri.L.J. 569), Ajeet Singh v. State of U.P.
(2007 Cri.L.J. 170), Lalji Yadav & Others v. State of U.P. & 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, except for bailable offences (Section 436 Cr.P.C.,
1973). For non-bailable offences, conditions are prescribed under
Sections 437 and 439 Cr.P.C. The discretion to grant bail in non-
bailable offences remains with the Court and hence, it cannot be
claimed as a matter of right, but the aggrieved party can only seek a
remedy and it is on the discretion of the Court to grant it or not.
In this connection reference may also be made to the Judgment of the
seven-Judge Bench of the Allahabad High Court in Smt. 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 Joginder Kumar v. State of U.P., 1994 Cr
LJ 1981 before deciding whether to make an arrest or not.
(2) The High Court should ordinarily not direct any
Subordinate Court to decide the bail application the same
day, as that would be interfering with the judicial
discretion of the Court hearing the bail application.
However, as stated above, when the bail application is
under Section 437 Cr.P.C. ordinarily the Magistrate should
himself decide the bail application the same day, and if he
decides in a rare 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 is substituted accordingly by this judgment.”

 

17. This Court in Lal Kamlendra Pratap Singh v. State of Uttar
Pradesh and Others (2009) 4 SCC 437, while affirming the judgment in
Amarawati (supra), held as follows:

“6. Learned counsel for the appellant apprehends that the
appellant will be arrested as there is no provision for
anticipatory bail in the State of U.P. He placed reliance on a
decision of the Allahabad High Court in Amarawati v. State of
U.P. in which a seven-Judge Full Bench of the Allahabad 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 followed by all
courts in U.P. in letter and spirit, particularly since the
provision for anticipatory bail does not exist in U.P.
8. In appropriate cases interim bail should be granted pending
disposal of the final bail application, since arrest and
detention of a person can cause irreparable loss to a person’s
reputation, as held by this Court in Joginder Kumar case. Also,
arrest is not a must in all cases of cognizable offences, and in
deciding whether to arrest or not the police officer must 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 placed before a three-Judge Bench, the judgment of which is
reported in same caption (2008) 3 SCC 574, wherein this Court opined
that insofar as the observations, recommendations and directions in
paras 17 to 39 of the concurrent judgment is concerned, they did not
relate to the subject matter of the criminal appeal and the directions
given were held to be obiter and were set aside.
19. I notice in this case FIR was lodged for offences, under
Sections 419 and 420 IPC which carry a sentence of maximum 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 Magistrate and without a
warrant, arrest any person –
a) who commits, in the presence of a police officer, a
cognizable offence;
b) against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable
suspicion exists that he has committed a cognizable
offence punishable with imprisonment for a term which
may be less than seven years or which may extend to
seven years whether with or without fine, if the
following conditions are satisfied, namely:-
i) the police 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
inducement, threat or promise to any person
acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the
Court or to the police officer; or
e) as unless such person is arrested, his presence
in the Court whenever required cannot be
ensured,
and the police officer shall record while making such
arrest, his reasons in writing:
Provided that a police officer shall, in all cases where
the arrest of a person is not required under the
provisions of this sub-section; record the 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 the arrest of a person
is not required under the provisions of sub-section (1) of
section 41, issue a notice directing the person against whom a
reasonable complaint has been made, or credible information has
been received, or a reasonable suspicion exists that he has
committed a cognizable offence, to appear before him or at such
other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the
duty of that person to comply with the terms of the notice.
(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
offence mentioned in the notice.”
21. Above mentioned provisions make 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 been issued under Section
41A, could be a ground for his arrest. Legislation has laid down
various parameters, warranting arrest of a person, which 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 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.
23. I am also faced with the situation that on dismissal of the writ
by the High Court under Article 226 of the Constitution 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
directions had been given here only to circumvent the
provisions of Section 80 of the Civil Procedure Code, and that
was not within the scope of Article 226. An interim relief can
be granted only in aid of and as ancillary to the main relief
which may be available to the party on final determination of
his rights in a suit or proceeding. If the Court was of opinion
that there was no other convenient or adequate remedy open to
the petitioners, it might have proceeded to investigate the
case on its merits 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, for the purpose of facilitating
the institution of such suit, issue directions in the nature of
temporary injunctions, under Article 226 of the Constitution.
The language of Article 226 does not permit such an action.”

24. The language of Article 226 does not permit such an action and
once the Court finds no merits in the challenge, writ petition will
have to be dismissed and the question of granting further relief after
dismissal of the writ, does not arise. Consequently, once a writ is
dismissed, 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.

 

 
eard Hear……………………………..J.
(K. S. Radhakrishnan)
New Delhi,
January 16, 2014.
[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 146/2014
(arising out of Special Leave Petition (Crl.) No. 7439/2013)

Km. Hema Mishra …..Appellant

Vs.

State of U.P. & Ors.
….Respondents

 

J U D G M E N T

A.K.SIKRI,J.

1. I have carefully gone through the judgment authored by my esteemed
brother, Justice Radhakrishnan. I entirely agree with the conclusions
arrived at by my learned brother in the said judgment. At the same time, I
would also like to make some observations pertaining to the powers of High
Court under Article 226 of the Constitution of India to grant relief
against pre-arrest (commonly called as anticipatory bail), even when
Section 438,Cr.P.C. authorizing the Court to grant such a relief is
specifically omitted and made inapplicable in so far as State of Uttar
Pradesh is concerned. 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 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 we
have to leave to the wisdom of the Court exercising powers under
Article 226 of the Constitution of India.”

 
2. Another aspect which is highlighted in the judgment rendered by
Justice Radhakrishnan 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 Petition, does not arise. It is so explained in para 22 and 23 of the
judgment of my learned brother.

3. I would like to remark that in the absence of any provisions like
Section 438 of Cr.P.C. applicable in the State of Uttar Pradesh, there is a
tendency on the part of the accused persons, against whom FIR is lodged
and/or charge-sheet is filed in the Court to file Writ Petition for
quashing of those proceedings so that they are able to get protection
against the arrest in the interregnum which is 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 against the arrest. Since the
grounds on which such an FIR or charge sheet can be quashed are limited,
once the Writ Petition challenging the validity of FIR or charge-sheet is
dismissed, the grant of relief, incidental in nature, against arrest would
obviously not arise, even when a justifiable case for grant of anticipatory
bail is made out .

4. It is for this reason, we are of the opinion that in appropriate
cases the High Court is empowered to entertain the petition under Article
226 of the Constitution 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 para 21 extracted above, 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. There may be cases
where pre-arrest may be entirely unwarranted and lead to disastrous
consequences. Whenever the High Court is convinced of such a situation,
it would 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 that liberty… – ‘A person who
has yet to lose his freedom by being arrested asks for freedom in
the event of arrest. That is the stage at which it is imperative
to protect his freedom, in so far as one may, and to give full
play to the presumption that he is innocent.

 
5. In Joginder Kumar v. State of U.P. and Others, 1994 Cr L.J. 1981, the
Supreme Court observed:

“No arrest can be made because it is lawful for the police
officer to do so. The existence of the power to arrest is one
thing. The justification 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 his own interest that no arrest should be made without a
reasonable satisfaction reached after some investigation as to the
genuineness of a complaint and a reasonable belief both as to the
person’s complicity and even so as to the need to effect arrest.”

 
6. It is pertinent to explain there may be imminent need to grant
protection against pre-arrest. The object of this provision is to relieve a
person from being disgraced by trumped up charges so that liberty of the
subject is not put in jeopardy 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 investigating machinery for further
investigation and questioning whenever he is required. Another purpose is
that the trial should not be jeopardized and for this purpose the
restrictions on the movements of the accused are necessary. The
genuineness of the alleged need for police custody has to be examined and
it must be balanced against the duty of courts to uphold the dignity of
every man and to vigilantly guard the right to liberty without jeopardizing
the state objective of maintenance of law and order.

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 towards excellence and of his dignity of
person in an integrated egalitarian Bharat. Right to justice and
equality and stated liberties which include freedom of
expression, belief and movement are the means for excellence. The
right to life with human dignity of person is a fundamental right
of every citizen for pursuit of happiness and excellence.
Personal freedom is a basic condition for full development of
human personality. Art.21 of the Constitution protects right to
life which is the most precious 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 the full development of human personality.
Liberty is the essential concomitant for other rights without
which a man cannot be at his best. The essence of all civil
liberties is to keep alive the freedom of the individual subject
to the limitations of social control envisaged in diverse
articles in the chapter of Fundamental Rights Part III in harmony
with social good envisaged in the Directive Principles in Part IV
of the Constitution. Freedom cannot last long unless it is
coupled with order. Freedom 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 of the main functions of the democratic Government is
to safeguard liberty of the individual, unless its exercise is
subject to social control, it becomes anti-social or undermines
the security of the State. The Indian democracy wedded to rule of
law aims not only to protect the fundamental rights of its
citizens but also to establish an egalitarian social order. The
individual has to grow within the social confines preventing his
unsocial or unbridled growth which could be done by reconciling
individual 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
harmony with equal rights of others and more differently for the
attainment of antithetic desires. This intertwined network is
difficult to delineate within defined spheres of conduct within
which freedom of action may be confined. Therefore, liberty would
not always be an absolute license but must arm itself within the
confines of law. In other words, here can be no liberty without
social restraint. Liberty, therefore, as a social conception is a
right to be assured to all members of a society. Unless 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 social weal and harmony
and powerful courses or forces would be at work to undermine
social welfare and order. Thus the essence of civil liberty is to
keep alive the freedom of the individual subject to the
limitation of social control which could be adjusted according to
the needs of the dynamic social evolution.

The modem social evolution is the growing need to keep
individual to be as free as possible, consistent with his
correlative obligation to the society. According to Dr. Ambedkar
in his 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 liberty would kill individual initiative. Without
fraternity, liberty and equality would not become a natural
course of things. Courts, as sentinel on the qui vive, therefore,
must strike a balance between the changing needs of the society
for peaceful transformation with orders and protection of the
rights of the citizen.(Para 374)

 
9. It was also held in that judgment that the High Courts under Art.226
had the right to entertain writ petitions for quashing of FIR and granting
of interim protection 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 consistent jurisdictional doctrine or even
elementary principles, if it is subject to conflicting or
inconceivable or inconsistent result which lead to uncertainty,
incongruity and disbelief in the efficacy of law. The
jurisdiction and power of the High Court under Art.226 of the
Constitution is undoubtedly constituent power and the High Court
has untrammeled powers and jurisdiction to issue any writ or
order or direction to any person or authority within its
territorial jurisdiction for enforcement 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 question of
jurisdiction is not final. The superior court, therefore, has
jurisdiction to determine its own jurisdiction, may be rightly or
wrongly. Therefore, the court in an appropriate proceeding may
erroneously exercise jurisdiction. It does not constitute want of
jurisdiction, but it impinges upon its propriety in the exercise
of the jurisdiction. Want of jurisdiction can be established
solely by a superior court and that in practice no decision can
be impeached collaterally by an inferior court. 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 by those rules. The valid decision
is not only conclusive, it may affect, but it is also conclusive
in proceedings where it is sought to be collaterally impeached.
However, the term conclusiveness may acquire other specific
meanings. It may mean that the finding upon which the decision is
founded as distinct or it is the operative part or has to be
conclusive or these findings bind only parties on litigated
disputes or that the organ which has made the decision is itself
precluded from revoking, 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 have very wide
powers under Art.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.

12. Thus, such a power has to be exercised very cautiously keeping in
view, at the same time, that the provisions of Article 226 are a devise 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 authorities indiscriminately making pre-arrest of the accused
persons. In entertaining such a petition under Art.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 Art.226 is not to be exercised liberally so
as to convert it into Section 438,Cr.P.C. proceedings, keeping in mind that
when this provision is specifically omitted in the State of Uttar Pradesh,
it cannot be resorted to as to back door entry via Art.226. On the other
hand, wherever the High Court finds that in a given case if the protection
against pre-arrest is not given, it would amount to gross miscarriage of
justice and no case, at all, is made for arrest pending trial, the High
Court would be free to grant the relief in the nature of anticipatory bail
in exercise of its power under Art. 226 of the Constitution. It is again
clarified that this power has to be exercised sparingly in those cases
where it is absolutely warranted and justified.

……………………….J.
(A.K. SIKRI)
New Delhi,
16th January 2014

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