TaxTMI 
TaxTMI 
1993 (8) TMI 316
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....onsequently there is likelihood of his arrest. It was also urged that the provisions relating to the maintenance of the rate board are not applicable to him in view of some Division Bench decision of this Court. For that matter, it may be mentioned that the Division Bench decision or for that matter any decision of the superior Court are to be followed by the Courts of law as and when the proceedings come before them. 3. We have heard the learned counsel for the petitioner and standing counsel Sri R. S. Sengar at some length and we propose to dispose of the petition finally with the following observations. 4. It has been urged on behalf of the petitioner that this Court is the protector of life and personal liberty of an individual citizen under Article 21 of the Constitution of India and for that matter, can issue writs under Article 226 of the Constitution of India. This Court is not the protector of the liberty but is custodian of the Constitution and the two are poles apart from each other. If the Courts were to act as protectors of the rights, there would be no duty left for all other functionaries and public servants....
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....ers or writs including writs in the nature (i) Habeas Corpus, (ii) mandamus, (iii) prohibition (iv)quo warranto and (v)certiorari or any of them "for the enforcement of the rights conferred by Part III and for any other purpose." The question is whether this Court can while observing that the petition has no force may also say that a particular method shall be adopted in dealing with an individual case or client. The authority given to Courts under the Article has to exercised with restraint and it is not supposed that the power would be exercised for any fanciful purpose according to the whims of any individual . may be that the limitations in this behalf cannot be defined but it is quite evident that the power should not be exercised arbitrarily, capriciously or indiscriminately. The limitation can to some extent be summarized with reference to the cases of Olga Tellis v. Bombay Corporation, and , Naresh v. State of Maharashtra and Janardhan Reddi v. State of Hyderabad (e) in the following form. 6. The jurisdiction of the Supreme Court under Article 32 or of a High Court under Article 226 to enforce a fundamental right arises where a fundamental right of the petitioner has bee....
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....re sworn enemies, one belongs to the rule of law in republic while other to the whim and caprice of an absolute monarch." The Courts are no exception to this princple and there can be no guarantee in respect of them over except an approach independent, unbiased and without prejudices; and even these are not for or against individuals but even a presumption against the State or acts of public servants could not be allowed to weigh while dispensing justice. The touchstone will be "if it would be right, just and fair." The applicability of the principles of natural justice even to the administrative law cannot be denied and any denial in this behalf will be the beginning of injustice but the law on ambit in the case of Menaka Gandhi was the Passports Act 1963 and not the Code of Criminal Procedure or Essential Commodities Act. The validity of the Cr.P.C. or E.C. Act has not even been challenged here on any ground. Though, it was once said that all this has resulted from the deletion of Section 438, Cr.P.C. It may be, but in this state Section 438 is not on the statute book and the validity of the amendment deleting it, is not....
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....s of the laws of Preventive Detention are to be weighed in scales different from those for providing the justice and infringement of rights. The principles of natural justice are already taken note of by the legislature and the procedure is not one of whims of executive functionaries. The code as it is, proceeds in a gradual manner. It does provide for arrest by a police officer (Section 4!) but limits it by Sections 169, 170 and 171 in various ways. The law does provide that at the time of arrest the person concerned will be informed the reasons for the action and naturally it follows that he can say against it and explain. Not only that, the law proceeds gradually in the matter of time for detention. Police Officer is not authorised to detain the individual for more than 24 hours irrespective of the other limitations placed on his action by Sections 157, 169 and 170, Cr.P.C. He has to be produced before a Magistrate who again takes stock of the situation and has authority to authorise the detention for limited period subject to the condition that there is material against the indvidual. Then come to the provisions of bail and trial. To think that the police officers concoct a cas....
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.... recognised in the case Malab Haji Husain v. Madhukar Purshottam Mandkar, in its words 'Inherent power conferred on High Courts under Section 561-A, Cr.P.C. has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. 15. In the case of Dr. Raghubir Saran v. State of Bihar, , the Supreme Court after referring to a number of decisions of various courts and High Court concluded : 'High Court as the highest court exercising criminal jurisdiction in a state has inherent power to make any order for the purpose of securing the ends of justice. Being an extraordinary power it will, however, not be pressed in except for remedying a flagrant abuse by a subordinate court of its powers. The principle also seems to have been recognised in Pampapathy v. State of Mysore, , Madhu Limaye v. State of Maharashtra, , Kaushi Ram v. Hashim, AIR 1959 SC 542 : (1959 Cri LJ 658) and State of Orissa v. Ram Chandra Agarwal, : "The distinction must always be drawn between absence of legal evidence and absence of reliable evidence. If it could be said with justification that there was no legal....
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....ed in the case of Ramjiavan v. Smt. Phoola, AIR 1976 SC 844. 19. That apart, the Hon'ble Supreme Court in Bhajan Lal case (1992 Cri LJ 527) has laid down, though not exhaustively, the parameters wherein the first information report can be quashed as under:- (1) Where the allegations made in the first information report are in complaint, even if they 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) Whether 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 dislose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a....
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.... Eastern Spinning Mills Sri Virendra Kumar Sharda v. Rajiv Poddar , where interference by High Court in the matter of investigation has been observed to be permissible only if non interference would result in miscarriage of justice. I will better quote a part of the judgment (Para 4): "We consider it absolutely unnecessary to make reference to the decision of this Court and they are legion which have laid down that save in exceptional case where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation." 22. I will now revert back to the Janta Dal case (1993 Cri LJ 600) (SC) and quote some more parts of it with respects (at pp 632 to 635 of Cri LJ): "144. The inherent power of a High Court to stay proceedings has been respectively debated in many English Courts and a majority of the judgments stressed that the power of staying proceedings should be reserved only for exceptional cases. We are not inclined to refer to all those English decisions except a few. 147. Most of the decisions of the English cases laid down the dictum that only in cases where there is subs....
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....if no cognizable offence is disclosed, and, still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation. 149. Lord Denning in R. v. Metropolitan Police Commissioner (1968 (1) All ER 763 at p. 769) has observed thus: "Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of police or the chief constable, as the case may be, to decide in any particular case whether enquiries 'should be pursued, or whether an arrest should be made or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter." 150. This Court in Jehan Singh v. Delhi Administration held that when the first information report discloses the commission of a cognizable offence, the statutory power of the police to investigate the cognizable offence cannot be interfered with in ....
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....ing under Chapter XII of the Code and the courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as afore-, mentioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass apppropriate orders as may be called for, without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution." 159. Sawant, J. in his submission note in Kekoo J. Manech Ji v. Union of India has expressed his opinion thus: (1980 Cri LJ 258 Bombay) (p....
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....direction from a Court which is not only a court of record but which has to function with utmost caution to maintain that it has acted in accordance with the principles of natural justice. Any direction deviation from the ordinary course of law or procedure will need at least a hearing of the other party and that other party is not a mere representative of State as Public Prosecutor but has to be a person well posted with the facts of each individual case, that is an Advocate properly instructed and not mere retainer. 24. A direction or order of this Court cannot be made against the specific laws of procedure and any such direction in individual cases may mean a fresh procedure for each ignoring the validly established law of procedure rendered by the Parliament. We are living in an atmosphere of justice, through enforcement of law and not that of a king Will, be the justice and the law is to subserve it. Any interference of this manner will be against equality before law enshrined in the Constitution and even the directions by the superior court may keep varying from case to case, individual to individual and person to person "where a power is given to do a certain thing in a c....
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....al custody so far. A mere moral restraint is not sufficient as observed by Belli in his Book of Habeas Corpus in Volume I pages 15 and 16. There has to be some kind of restraint on the liberty of movement of a person in order that this writ may be perused. It may be that actual physical confinement may not be necessary but control and custody at least have to be there to make habeas corpus writ available to the person concerned. In the case , it was observed that a habeas corpus could not be granted when the finding was that the person was committed to Jail custody by the competent order of a competent court, which prima facie was neither without jurisdiction nor illegal. The observation that the petition does not disclose any occasion for interference presupposes that the action in furtherance of the first information report of investigation is not illegal and thereafter making the order for the same day bail or anything like that cannot be said to be justified as an order of habeas corpus or even a direction. 26. A writ of mandamus is issued to do an act in accordance with the law. In order to have a cause of action for mandamus, there has to be some order or statutory duty wh....
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.... to control exercise of discretion. Whether to arrest or not in the authority of the police Officer under the Code of Criminal Procedure and it cannot be exercised through the High Court by way of direction under of each court. The Presiding Judge of each court is supposed to be holding in view the entire work for the day, and that should not in my opinion be controlled by this Court by making a preference to one over the other. As to how a person who has surrendered, is to be dealt with till his bail matter is disposed of is also discretion of that court and not that of this Court. This Court can lay down and in my opinion rightly, as a piece of law for general that the court concerned has jurisdiction to admit him to a temporary bail on personal bond only but there cannot be direction from this Court as that will be controlling the discretion of the authority or the court concerned. 28. The principles of procedure to be adopted are laid down in legislative Acts. They may be interpreted by the courts and may even in certain cases be struck down for being violative of the provisions of the Constitution but certainly cannot be enacted by the Co....
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....s. It must be a duty cf a public nature created by the previsions of the Constitution or of a status or some rule of common law. The remedy of a writ of mandamus is not intended to supersede completely the modes of obtaining relief by an action is a civil court or to deny defence legitimately open in. such actions. The power to issue a writ of mandamus is a discretionary power. It is sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a Civil Court and to refuse to issue a writ of mandamus, A writ of mandamus is not a writ of course or a writ of right but is, as a rule a matter for the discretion of the court. In petitions for a writ of mandamus, the Supreme Court and High Courts do not act as a court of appeal and examine the facts for themselves. It is not the function of the court to substitute its wisdom and the discretion for that of the person to whom the judgment in the matter in question was entrusted by law. The Supreme Court does not issue a writ of mandamus except at the instance of a party whose fundamental rights are directly and substantially invaded or are in imminent danger of being so invaded. A writ of mandamus is not is....
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....f Union of India v. Deoki Nandan Agarwal, AIR 1992 SC 96. The relevant portion may be better quoted (at p 101 of AIR): "It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate, the power to legislate has not been conferred on the Courts. The Court cannot add words to a Statute or read words into it which are not there. Assuming there is a defect of an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities." 36. It is true that in view of the above discussions the authority of the Court to interfere under Article 226 of the Constitution....