# Jaiveer Singh v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 683
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-06-20
- **Case number:** Criminal Misc. Writ Petition No.10426 of 2014
- **Bench:** Sudhir Agarwal, Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jaiveer-singh-v-state-of-u-p-ors-42903
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-Criminal
Writ petition-quashing FIR-cognizable
offence discloses-can not be quashed-if
final relief not available-interim relief
arrest can not be stayed-even on deposit
of compounding charges.

Held: Para-9
In view thereof, we have no hesitation in
observing that the prayer for quashing the
F.I.R. if is declined on the ground that
allegations
contained
therein
discloses
cognizable
offence,
therefore,
no
interference is called for at this stage, this
Court would not be justified in granting any
relief as an interim order by staying arrest
since it will amount to grant a relief to the
petitioner without deciding his right in any
manner and this would be against the
exposition of law settled by Apex Court in
the aforesaid decisions.

Case Law discussed:
W.P. No. 10095 of 2014; AIR 1952 SC 12; AIR
1962 SC 1305; AIR 1983 SC 1272; (2014) 4
SCC 453.

## Text

2 All] Jaiveer Singh Vs. State U.P. & Ors.
683
situation when the offence is non-cognizable.
It has no application in the case in hand.

8. Even otherwise, at this stage, this
Court is not examining legality or otherwise
of arrest made by police, since neither any
one has been arrested nor this writ petition as
such has been filed with a complaint that
police or investigating officer has committed
violation of any provision pertaining to arrest
of any person or the petitioner himself. The
main relief in the writ petition is for quashing
of first information report which, admittedly
having disclosed commission of cognizable
offence is not liable to be interfered with at
this stage.

9. So far as police is concerned, suffice
it to mention that arrest is a mode and
manner
for
aid
and
assistance
of
investigating agency after a report has been
received regarding an offence, whether
cognizable or non cognizable. In every case,
the arrest is not must. It is the statutory
discretion of investigating officer which has
to be exercised fairly and objectively. Use of
power of arrest is not an arbitrary statutory
discretion of investigating officer or the
police but must be founded on valid
considerations. Some guidelines in this
regard have been established by Apex Court
in Joginder Kumar Vs. State of U.P. 1994(4)
SCC 260, D.K. Basu Versus State of West
Bengal; 1997 (1) SCC 416, K.K. Jerath Vs.
Union Territory, Chandigarh and others, JT
1998(2) SC 658 and Lal Kamlendra Pratap
Singh Vs. State of U.P.; 2009(3) ADJ 322
etc. Any arbitrary and indiscreet act of arrest,
without any proper reason, would be at the
personal risk of the officer concerned, for
which, he may have to account for. The act
of arrest during investigation must precede
with the endeavour of officer concerned for
making proper investigation and not just to
penalise an accused or any other person.

10. If on account of caprices of the
officer concerned, any such matter is brought
to this Court, showing an arbitrary exercise
of power of arrest on the part of officer
concerned, such matter may be dealt with by
this Court with iron hands but mere
possibility or apprehension of arrest would
not justify a blanket order from this Court,
restraining
police
from
exercising
its
statutory discretionary power which has been
conferred on it by the statute in aid and
assistance for investigation etc. Reliance has
also been placed at the bar on a Constitution
Bench decision in Lalita Kumari Vs.
Government of Uttar Pradesh and others;
(2014) 2 SCC 1. To our view, this decision
lends no support to the petitioner in the case
in hand for the question raised herein.

11. No interference is called for.

12. The writ petition is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.06.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.

Criminal Misc. Writ Petition No.10426 of
2014

Jaiveer Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amit Kumar Gaur
684 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
A.G.A., Sri Baleshwar Chaturvedi,
 Sri Kamal Kesarwani

Constitution of India, Art.-226-Criminal
Writ petition-quashing FIR-cognizable
offence discloses-can not be quashed-if
final relief not available-interim relief
arrest can not be stayed-even on deposit
of compounding charges.

Held: Para-9
In view thereof, we have no hesitation in
observing that the prayer for quashing the
F.I.R. if is declined on the ground that
allegations
contained
therein
discloses
cognizable
offence,
therefore,
no
interference is called for at this stage, this
Court would not be justified in granting any
relief as an interim order by staying arrest
since it will amount to grant a relief to the
petitioner without deciding his right in any
manner and this would be against the
exposition of law settled by Apex Court in
the aforesaid decisions.

Case Law discussed:
W.P. No. 10095 of 2014; AIR 1952 SC 12; AIR
1962 SC 1305; AIR 1983 SC 1272; (2014) 4
SCC 453.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri A.K. Gaur, learned
counsel for petitioner; learned A.G.A. and
Sri Kamal Kesarwani, Advocate, holding
brief of Sri Baleshwar Chauturvedi,
appearing for respondents; and, perused
the record.

2. This writ petition under Article
226 of Constitution of India has been filed
seeking writ of certiorari for quashing
First Information Report dated 12.6.2014
registered as Case Crime No. 143 of
2014, under Sections 135, 136 of
Electricity Act, Police Station Barnahal,
District Mainpuri.

3. From a perusal of averments
made in F.I.R., it cannot be said that
cognizable offence is not made out.
Whether these allegations are correct,
cannot be examined at this stage.

4. In a matter praying for quashing of
F.I.R., without there being anything otherwise
on record, the only scope of judicial review
under Article 226 of the Constitution is from a
perusal of F.I.R. and considering the averments
made therein on their face value to be correct, if
can be said that a cognizable offence is made
out, the Court would not interfere.

5. Learned counsel for petitioner,
however, contended that petitioner is ready
to pay compounding charges and, therefore,
this Court must follow the order dated
12.6.2014 passed by this Court in Criminal
Misc. Writ Petition No. 10095 of 2014
(Lajjaram Vs. State of U.P. and others):

"Heard learned counsel for the petitioner
and learned Additional Government Advocate.

Petitioner seeks quashing of the First
Information Report dated 7.6.2014 being
Case Crime No. 136 of 2014, under
Section 135 Electricity Act, Police
Station-Barnahal, District-Mainpuri.

We
have
examined
the
First
Information Report. It does disclose a
cognizable offence. No case for quashing of
the First Information Report is made out.

However, it is provided that if the
petitioner deposits the compounding fee
2 All] Jaiveer Singh Vs. State U.P. & Ors.
685
and assessed amount in respect of the
alleged theft of electricity within 30 days
from today, he may not be arrested till
submission of the police report.

In case of non-compliance of any of
the conditions mentioned herein above, he
shall not be entitled to the benefits of this
order.

Writ petition is disposed of."

6. Having gone through the same,
we do not find that any principle of law
has been laid down so as to bind this
Court on an exposition of law.

7. So far as the grant of interim relief
of staying arrest is concerned, we find that
Apex Court has deprecated such practice
and has held, if final relief has been
declined, no interim relief/interim order
should be granted to petitioners. The first
such case is State of Orissa Vs. Madan
Gopal Rungta AIR 1952 SC 12. Therein
High Court declined to grant final relief on
the ground that there was an alternative
remedy
available
to
petitioner
and,
therefore, dismissed the writ petition
relegating petitioner to avail alternative
remedy, but then observing that before
filing suit, 60 days' notice under Section 80
C.P.C. will have to be given, which will
take some time, an interim relief was
granted. Deprecating this, Apex Court said
that grant of relief under Article 226 is
founded only on its decision that a right of
the aggrieved party has been infringed.
Therefore, existence of right is foundation
of exercise of jurisdiction under Article 226.
When the Court has decided nothing at all
in respect to rights of parties, it would not
be justified to grant any relief, final or
interim, as the case may be, since Article
226 does not confer such jurisdiction. In
para 6 of the judgment, the Court said:

"In our opinion, article 226 cannot be
used for the purpose of giving interim
relief as the only and final relief on the
application as the High Court has
purported to do. The directions have been
given here only to circumvent the
provisions of section 80 of the Civil
Procedure Code, and in our opinion that is
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. In our opinion, the language
of article 226 does not permit such an
action. On that short ground the judgment
of the Orissa High Court under appeal
cannot be upheld."
686 INDIAN LAW REPORTS ALLAHABAD SERIES

8. The aforesaid dictum has been
followed in Amarsarjit Singh Vs. State of
Punjab AIR 1962 SC 1305 (para 22),
Cotton Corporation of India Limited Vs.
United Industrial Bank Limited and others
AIR 1983 SC 1272 (para 10) and recently
in Km. Hema Mishra Vs. State of U.P.
and others (2014) 4 SCC 453 (para 22).

9. In view thereof, we have no
hesitation in observing that the prayer for
quashing the F.I.R. if is declined on the
ground that allegations contained therein
discloses cognizable offence, therefore, no
interference is called for at this stage, this
Court would not be justified in granting any
relief as an interim order by staying arrest
since it will amount to grant a relief to the
petitioner without deciding his right in any
manner and this would be against the
exposition of law settled by Apex Court in
the aforesaid decisions.

10. Even otherwise, at this stage, this
Court is not examining legality or otherwise of
arrest made by police, since neither any one has
been arrested nor this writ petition as such has
been filed with a complaint that police or
investigating officer has committed violation of
any provision pertaining to arrest of any person
or the petitioner himself. The main relief in the
writ petition is for quashing of first information
report which, admittedly having disclosed
commission of cognizable offence is not liable
to be interfered with at this stage.

11. So far as police is concerned,
suffice it to mention that arrest is a mode
and manner for aid and assistance of
investigating agency after a report has
been received regarding an offence,
whether cognizable or non cognizable. In
every case, the arrest is not must. It is the
statutory discretion of investigating officer
which has to be exercised fairly and
objectively. Use of power of arrest is not an
arbitrary
statutory
discretion
of
investigating officer or the police but must
be founded on valid considerations. Some
guidelines in this regard have been laid
down in Joginder Kumar Vs. State of U.P.
1994(4) SCC 260, D.K. Basu Versus State
of West Bengal; 1997 (1) SCC 416, K.K.
Jerath Vs. Union Territory, Chandigarh and
others, JT 1998(2) SC 658 and Lal
Kamlendra Pratap Singh Vs. State of U.P.;
2009(3) ADJ 322 etc. Any arbitrary and
indiscreet act of arrest, without any proper
reason, would be at the personal risk of the
officer concerned, for which, he may have
to account for. The act of arrest during
investigation
must
precede
with
the
endeavour of officer concerned for making
proper investigation and not just to penalize
an accused or any other person.

12. If on account of caprices of the
officer concerned, any such matter is brought
to this Court, showing an arbitrary exercise
of power of arrest on the part of officer
concerned, such matter may be dealt with by
this Court with iron hands but mere
possibility or apprehension of arrest would
not justify a blanket order from this Court,
restraining
police
from
exercising
its
statutory discretionary power which has been
conferred on it by the statute in aid and
assistance for investigation etc.

13. In view of above, no interference
is called for.

14. The writ petition is dismissed.
--------
2 All] Bhagwat Prasad Vs. State U.P. & Ors.
687
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.05.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 17036 of 2008

Bhagwat Prasad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajesh Khare, Sri Awadh Narain Rai

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Arrears of
salary-denied on ground of "no work no
pay" petitioner was transferred to the
place
where
no
vacancy-inspite
of
direction of Court no proper posting
given-w.e.f. July 2004 to January 2006held-respondent can not be allowed to
take benefit of their own illegal actentitled for salary with cost of Rs.
10,000/-.

Held: Para-55
In view thereof, it cannot be said that
petitioner on is own denied to discharge
duties. Instead it is the respondents own
illegal act by transferring and posting
petitioner at a place where there was no
vacancy so as to deny him any occasion
to render any service. For that purpose,
the loss, if any, must be suffered by
State, may be recovered from officer(s)
concerned but petitioner cannot be made
to suffer by denying him salary for no
fault on his part.

Case Law discussed:
AIR 1984 SC 1291; 1989(2) SCC 541; AIR
1991 SC 958; AIR 1991 SC 2010; 1993
(Suppl.) (2) SCC 324;AIR 1995 SC 1053; 1996
(1) SCC 63; 1996(7) SCC 533=AIR 1996 SC
2936; 1989(9) SCC 559; AIR 1995 SC 319;
AIR 2001 SC 1748; AIR 2002 SC 808; 2003(7)
SCC 238= AIR 2003 SC 3137; AIR 2004 SC
3988; AIR 2005 SC 3966; 2005(104) FLR
863=2005(2) SCC 363; (2005) 8 SCC 314;
2002(3) SCC 437; AIR 2006 SC 531; AIR 2006
SC 586; AIR 2003 SC 1115; 2005 (2) ESC
1215; 2006(1) UPLBEC 20(SC)2007(1) ESC
40(SC); JT 2009(5) SC 487; AIR 1970 SC 156;
2009(15)SCC 335; 2011(11) SCC 626; JT
2011(4) SC 252; AIR 2006 SCC 3018; (2007) 9
SCC 564; (2009) 2 SCC 288; 2007(4) AWC
3382; 2007(3)ADJ 1.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri A.N.Rai, learned
counsel
for
the
petitioner,
learned
Standing Counsel for the respondents and
perused the record.

2. In this writ petition, petitioner
was
transferred
vide
order
dated
11.6.2004 but he was not allowed to join
at the transferred place on the ground that
there was no vacancy. In this view of the
matter, petitioner was not allowed to work
from July, 2004 to 29.01.2006. Now,
when he claimed salary for the said
period, it has been rejected on the ground,
since he did not work, therefore, is not
entitled for salary.

3. It is contended that petitioner was
not allowed to join as there was no
vacancy on which he was transferred and
there was no fault on his part, yet he has
been denied salary, which is patently
illegal.

4. It is said that on the one hand,
respondents themselves passed an illegal
order of transfer on 11.6.2004 without
caring whether on the place of transfer,
there was vacancy or not in which
petitioner could have been transferred and