TaxTMI 
TaxTMI 
2014 (1) TMI 1771
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....e 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 surrender....
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....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. Learne....
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....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 matte....
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....ns 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 sub....
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....t 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 ....
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....he 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 nat....
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....fter 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. 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 whi....
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....est. 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 ....
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....f 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 democrac....
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.... 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. L....
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....ed 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 involvi....