# Court in Joginder Kumar v. State of

- **Citation:** (2000) 3 ILRA 195
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-05-19
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-joginder-kumar-v-state-of-39663
- **Pages:** 5

## Text

3All] Ajeet Singh alias Muraha V. State of U.P. and others 195

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By the Court

1. Heard Sri S.K. Shukla learned
counsel for the petitioner and learned
Government Advocate. The petitioner has
prayed for a writ of certiorari for quashing
the FIR dated 19.5.2000 (Annexure 1 to
the petition) registered as Case Crime No.
144 of 2000 under section 323, 504, 506
IPC read with Section 3 (1) (10) of SC/ST
Act, P.S. Khuthan, District Jaunpur.

2. Learned counsel for the petitioner
has relied on the decision of the Supreme
Court in Joginder Kumar vs. State of
U.P. AIR 1994 SC 1349. In the decision
the
Supreme
Court
observed
(in
paragraph 24)

"24. 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 in calculable harm to the
reputation and self-esteem 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 and bonafide of a complaint
and a reasonable belief both as to the
person's complicity and even so as to the
need to effect arrest. Denying a person of
his liberty is a serious matter. The
recommendations
of
the
Police
Commission
merely
reflect
the
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

196
constitutional
concomitants
of
the
fundamental right to personal liberty and
freedom. A person is not liable to arrest
merely on the suspicion of complicity in
an
offence.
There
must
be
some
reasonable justification in the opinion of
the officer effecting the arrest that such
arrest is necessary and justified. Except in
heinous offences, an arrest must be
avoided if a police officer issues notice to
a person to attend the Station House and
not
to
leave
the
Station
without
permission would do.

3. The Supreme Court also (in
paragraph 23) referred to the Third Report
of the National police Commission that
had suggested:-
"...An arrest during the investigation of a
cognizable
case
may
be
considered
justified in one or other of the following
circumstances-
i)
The case involves a grave offence
like murder, dacoity, robbery, rape etc.
and it is necessary to arrest the accused
and bring his movements under restraint
to infuse confidence among the terror
stricken victims.
ii) The accused is likely to abscond and
evade the processes of law.
iii) The accused is given to violent
behavious and is likely to commit further
offences
unless
his
movements
are
brought under rerstgraint.
iv) The accused is a habitual offender
and unless kept in custody he is likely to
commit similar offences again".

4. The Supreme Court also referred
to the report of the Royal Commission in
England in this connection (in paragraph
19 to 22)

5. The Supreme Court also observed
(in paragraph 13) that the Third Report of
the National Police Commission has
mentioned that nearly 60% of the arrests
by the police were either unnecessary or
unjustified, and that such unjustified
police action accounted for 43.2 percent
of the expenditure of the jails. The Police
Commission
in
its
Third
Report
mentioned that a major portion of the
arrests by the police were connected with
minor prosecutions and therefore cannot
be regarded as quite necessary from the
point in view of crime prevention.

6. On the other hand learned
Government Advocate has relied on the
Full Bench decision of this Court in Satya
Pal and others vs. State of U.P. and others
2000 (4) ACC 75. We have carefully
perused the decision of the Supreme
Court in Joginder Kumar's case and the
decision of the Full Bench in Satya Pal's
case (supra). We are of the opinion that
many of the observations in Satya Pal's
case are in conflict with the observations
of the Supreme Court in Joginder
Kumar's case (supra), and hence the
matter needs to be referred to a larger
bench
for
re-considering
these
observations in Satya Pal's case (supra)
which appear to be inconsistent with the
observations of the Supreme Court in
Joginder Kumar's case (supra).

7. In paragraph 36 of the judgement
of the Full Bench in Satya Pal's(supra) no
doubt paragraph 24 of the decision in
Joginder Kumar's case has been quoted.
However, thereafter the decision of the
Supreme Court in Joginder Kumar's case
has been practically brushed aside in
Satya Pal's case by the following
observation in paragraph 37 "However,
the aforesaid observation of the Hon'ble
Supreme Court have been made on the
peculiar facts circumstances of Joginder
3All] Ajeet Singh alias Muraha V. State of U.P. and others 197

Kumar' case which are different from the
present one."

8. There is no discussion in Satya
Pal's case about the principles relating to
the power of arrest laid down in Joginder
Kumar's case. It is settled law that the
decision of the Supreme Court is binding
on the High Court in view of Article 141
of the Constitution of India. Even obiter
dicta of the Supreme Court are binding on
the High Court. Hence we are constrained
to observe that it was not open to the full
bench of this Court in Satya Pal's case to
practically brush aside the Supreme
Court's decision in Joginder Kumar's
case merely by saying that the decision in
Joginder Kumar's case was made on its
own 'peculiar facts and circumstances'.
Decisions of the Supreme Court are
absolutely binding on the High Court and
must
be
followed
faithfully
and
punctually. With profound respect to our
brethren Judges who delivered judgement
in Satya Pal's case we are constrained to
saythat they did not seem to have
followed the aforesaid decision of the
Supreme Court and have brushed aside
the said decision by a stray observation in
paragraph 37. If Supreme Court decisions
are treated in this manner then every
decision of the Supreme Court can be
disregarded by High Court Judges simply
by saying that the decision was 'on its
own peculiar facts.' To say the least, this
would be grossly subversive of judicial
discipline.

9. In paragraph 40 of Satya Pal's
case
(supra) it has been observed
"However, the order staying arrest maybe
granted sparingly in exceptional cases and
with circumspsectuion, that too in the
rarest of rare cases". This observation, in
our opinion, is inconsistent with the
decision in Joginder Kumar's case. There
is no such principle of law laid down in
Joginder Kumar's case that stay of arrest
should only be granted in the rarest of rare
cases. The criteria as to when there should
be arrest and when there should not be
arrest has been laid down in Joginder
Kumar case's, and it is not open to the
High Court to deviate from that criteria.
The principle of rareast of rare case was
laid down by the Supreme Court in
connection with death sentences, and it
has nothing to do with staying of arrest.
Hence in our opinion to say that arrest
should be stayed only in rarest of rare
cases would be inconsistent with and
contrary
to
the
observations
and
directions of the Supreme Court in
Joginder Kumar's case ( supra).

10. After the promulgation of the
Constitution
individual
liberty
has
become of great importance, particularly
in view of Article 21, which is a
fundamental right. Hence it cannot be
lightly interfered with. Moreover, section
157(1) Cr.P.C. states:-

"157. Procedure for investigation-(1) If,
from information received or otherwise,
an officer in charge of a police station has
reason to suspect the commission of an
offence which he is empowered under
section 156 to investigate, he shall
forthwith send a report of the same to a
Magistrate empowered to take cognizance
of such offence upon a police report and
shall proceed in person, or shall depute
one of his subordinate officers not being
below such rank as the State Government
may,
by
general
or
special
order,
prescribe in this behalf, to proceed, to the
spot,
to
investigate
the
facts
and
circumstances
of
the
case,
and
if
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

198
necessary, to take measures for the
discovery and arrest of the offender'.

11. The above provision clearly
shows that it is not necessary to arrest in
every
case
where ever a FIR of
cognizable offence has been registered.
No doubt investigation has to be made in
every case where a cognizable offence is
disclosed but in our opinion investigation
does not necessarily include arrest. Often
the investigation can be done without
arresting a person, and this legal position
becomes clear from section 157(1) of the
Cr.P.C. because that provision states that
the Police Officer has to investigate the
case, and if necessary, to take measures
for the arrest of the offender. The use of
words if necessary clearly indicates that
Police Officer does not have to arrest in
every case where ever FIR has been
lodged, and this position has been
clarified
in
Joginder
Kumar's
case
(supra).

12. In our country unfortunately
whenever an FIR of a cognizable offence
is lodged the police immediately goes to
arrest the accused. This practice in our
opinion is illegal as it is against the
decision of the Supreme Court in Joginder
Kumar's case, and it is also in violation of
Article 21 of the Constitution as well as
section 157 (1) Cr.P.C. No doubt section
157 (1) Cr.P.C. gives a police officer
discretion to arrest or not, but this
discretion cannot be exercised arbitrarily,
and it must be exercised in accordance
with the principles laid down in Joginder
Kumar's case (supra).

13. It maybe mentioned that the
provision for anticipatory bail has been
deleted by an amendment in U.P. and a
full bench of this Court has held that the
High Court cannot order disposal of the
bail application on the same day. It is well
known that in U.P. criminal trials often
take 5 years or sometimes even more to
complete, and hence the question arises
that if an accused is found innocent after
this long interval who will restore these 5
years or so of life to him if he is not
granted bail.

14. It may be mentioned that a
person's reputation and esteem in society
is a valuable asset, just as in civil law it is
an established principle that goodwill of a
firm is an intangible asset. In practice, if a
person applies for bail he has to surrender
in court, and normally the bail application
is put up for hearing after a few days and
in the meantime he has to go to jail. Even
if the is subsequently granted bail he has
to surrender in court, and normally the
bail application is put up for hearing after
a few days and in the meantime he has to
go to jail. Even if the is subsequently
granted bail or is acquitted his reputation
is irreparably tarnished in society. Often
false and frivolous FIR are filed yet the
innocent person has to go to jail and this
greatly damages his reputation in society.
All these factors must be kept in mind by
the High Court particularly after the
promulgation of the Constitution, which
has embodied the right to liberty as a
valuable fundamental right in Article 21
of the Constitution of India.

15. In view of the above we are of
the opinion that certain observations and
directions of the three Judge full bench of
this Court in Satya pal vs. State of U.P.
(supra). Needs to be re-considered by a
larger bench of this Court. Hence we are
of the opinion that the following questions
need to be referred to a larger bench :-
3All] Devendra Dutta Bahuguna V. The Secretary, D.B.C.D.F. Ltd. and another 199

1.
Whether
arrest
during
police
investigation can be stayed by this Court
only in rarest of rare cases as observed in
Satya Pal's case or according to the
criteria laid down by Supreme Court in
Joginder Kumar's case (supra) ?

2.
Whether the full bench in Satya Pal's
case (supra) was right in holding that
Joginder Kumar's case was delivered on
its own 'pecullar facts and circumstances'
and hence does not lay down any legal
principles relating to the power of arrest
and the power of stay of arrrest by this
Court ?

16. In view of the above let the
papers of this case be laid before Hon'ble
the Chief Justice for constituting a larger
bench for reconsidering the correctness of
the decision of the full bench decision of
this Court in Satya Pal case (supra).

Learned Government Advocates may
file counter affidavit within a month.
Issue notice to respondent no. 3
returnable at an early date.

17. In the meantime we direct that
petitioner shall not be arrested in the
above case till submission of charge sheet
in court but investigation in the above
mentioned case may go on.

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