# Singh v. State of U.P.-good law-ratio of

- **Citation:** (2006) 3 ILRA 1023
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-07-05
- **Case number:** Criminal Misc. Writ Petition No.4861 of 2000
- **Bench:** Dr.B.S. Chauhan, Sushil Harkauli, Amar Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/singh-v-state-of-u-p-good-law-ratio-of-40717
- **Pages:** 37

## Headnote

Constitution of India, Art. 226-Stay of
arrest-during pendency of investigation
writ court can exercise power to grant
stay in rarest of rare case-Full Bench
held-observation made in Satya Pal
Singh Vs. State of U.P.-good law-ratio of
Jogender Singh's case-not applicable in
cases
for
quashing
the
criminal
proceeding.

Held: Para 32, 34, 85 Para 117 as per
Hon'ble Amar Saran, J.

Thus, the arrest is permissible only in a
case where the circumstances of the said
case
so
require
and
there
is
a
justification
for
making
the
arrest
otherwise not.

It
is
evident
from
the
statutory
provisions itself that arrest is to be made
only and only if it is found to be
necessary and there is a justification for
making the arrest for the purpose of
further investigation. What to talk of
arrest even case may not be investigated
if there is no sufficient ground for the
same. Therefore, it cannot be held that
arrest is to be made in every case
without
discrimination
rather
the
mandate issued by the Hon'ble Apex
Court in Joginder Kumar's case is to be
followed but as stated above, the said
case deals with the power of the police
to make arrest while the Full Bench in
Satyapal's case deals with the power of
the Court to interfere with investigation.

In view of the above, the conclusions
drawn by us, hereinabove, we answer
the first part of question No. 1 holding
that Satyapal's case lays down the
correct law and we approve, affirm and
reiterate the same. However, the second
part of the 1st question does not require
to be answered, as the ratio of Joginder
Kumar's case has no application in a case
for quashing criminal proceedings.

Constitution of India, Art. 226-Power of
writ
Court-Quashing
of
Criminal
proceeding-on the ground of malafidesufficient evidence there-can not be
interferred even if malafide established.

Held: Para 42, 75 & 105
1024 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Thus, it is evident that in case there is
sufficient evidence against the accused,
which may establish the charge against
him, if the bias/mala fide is established,
the proceedings cannot be quashed.

Thus, it is evident from the aforesaid
judgments of the Hon'ble Apex Court
that the Court has a power to grant
interim relief so long the case is pending
before it. In a case where the writ Court
refuses to entertain a petition and
relegates the party to some other
appropriate forum or the party itself
withdraws the writ petition to approach
another forum, as the case does not
remain pending before the Court, the
writ Court has no competence to issue
any direction protecting the right of the
petitioner interregnum, for the reason
that writ does not lie for granting only an
interim relief and interim relief can be
granted provided the case is pending
before the Court and rights of the parties
are likely to be adjudicated upon on
merit.
Under
the
garb
of
seeking
quashing of criminal proceedings, the
relief of anticipatory bail, which is not
available in the State of U.P., cannot be
obtained, for the reason that a litigant
cannot
be
permitted
to
achieve
something indirectly, which cannot be
sought directly.

No power is conferred on the High Court
to quash the FIR and investigation or to
stay the arrest of the petitioner because
some of these directions or observations
have not been complied with. Only
because the High Court is of the opinion
that the particular case is not of such a
grave nature necessitating arrest, or that
the accused is not likely to abscond or
that his arrest is not needed for the
purpose of investigation, the High Court
is not empowered to substitute its
discretion in place of the discretion of
the Investigating officer, who alone is
entitled to arrive at a conclusion as to
whether there is any need to effect
arrest during investigation.
Case law discussed:
AIR 1992 SC-604, AIR 1995 SC-196, 2003 SCC
(2) 649, 2003 (11) SCC-251, AIR 2005 SC1057, AIR 1968 SC-117, AIR 1980 SC-326, AIR
1993 SC-1082, 2

## Text

_Characters 0–39,992 of 119,881. This is a partial read: ask again with offset=39992 for what follows._

3 All] Ram Deo and others V. State of U.P. and another
1023
principal of stare decises should be
applied also to the accused who had been
avoiding the process of law. It will be
misused of the power of the court if such
an order is passed in respect of those
persons who have got no respect for the
orders of the court.

4. In this view of the matter, I do not
find any merit in this application. This
application is rejected. The applicant is
free to appear in the court and raise his
grievances in view of the law laid down
by this Court and who will decide it by
passing a reasoned order thereon.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.07.2006

BEFORE
THE HON'BLE DR.B.S. CHAUHAN, J.
THE HON'BLE SUSHIL HARKAULI, J.
THE HON'BLE AMAR SARAN, J.

Criminal Misc. Writ Petition No.4861 of
2000

Ajit Singh @ Muraha

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.K. Shukla
Sri S.P. Shukla
Sri R.K. Pandey
Sri Prem Prakash
Sri Ramendra Asthana

Counsel for the Respondents:
Sri V.S. Mishra

Constitution of India, Art. 226-Stay of
arrest-during pendency of investigation
writ court can exercise power to grant
stay in rarest of rare case-Full Bench
held-observation made in Satya Pal
Singh Vs. State of U.P.-good law-ratio of
Jogender Singh's case-not applicable in
cases
for
quashing
the
criminal
proceeding.

Held: Para 32, 34, 85 Para 117 as per
Hon'ble Amar Saran, J.

Thus, the arrest is permissible only in a
case where the circumstances of the said
case
so
require
and
there
is
a
justification
for
making
the
arrest
otherwise not.

It
is
evident
from
the
statutory
provisions itself that arrest is to be made
only and only if it is found to be
necessary and there is a justification for
making the arrest for the purpose of
further investigation. What to talk of
arrest even case may not be investigated
if there is no sufficient ground for the
same. Therefore, it cannot be held that
arrest is to be made in every case
without
discrimination
rather
the
mandate issued by the Hon'ble Apex
Court in Joginder Kumar's case is to be
followed but as stated above, the said
case deals with the power of the police
to make arrest while the Full Bench in
Satyapal's case deals with the power of
the Court to interfere with investigation.

In view of the above, the conclusions
drawn by us, hereinabove, we answer
the first part of question No. 1 holding
that Satyapal's case lays down the
correct law and we approve, affirm and
reiterate the same. However, the second
part of the 1st question does not require
to be answered, as the ratio of Joginder
Kumar's case has no application in a case
for quashing criminal proceedings.

Constitution of India, Art. 226-Power of
writ
Court-Quashing
of
Criminal
proceeding-on the ground of malafidesufficient evidence there-can not be
interferred even if malafide established.

Held: Para 42, 75 & 105
1024 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Thus, it is evident that in case there is
sufficient evidence against the accused,
which may establish the charge against
him, if the bias/mala fide is established,
the proceedings cannot be quashed.

Thus, it is evident from the aforesaid
judgments of the Hon'ble Apex Court
that the Court has a power to grant
interim relief so long the case is pending
before it. In a case where the writ Court
refuses to entertain a petition and
relegates the party to some other
appropriate forum or the party itself
withdraws the writ petition to approach
another forum, as the case does not
remain pending before the Court, the
writ Court has no competence to issue
any direction protecting the right of the
petitioner interregnum, for the reason
that writ does not lie for granting only an
interim relief and interim relief can be
granted provided the case is pending
before the Court and rights of the parties
are likely to be adjudicated upon on
merit.
Under
the
garb
of
seeking
quashing of criminal proceedings, the
relief of anticipatory bail, which is not
available in the State of U.P., cannot be
obtained, for the reason that a litigant
cannot
be
permitted
to
achieve
something indirectly, which cannot be
sought directly.

No power is conferred on the High Court
to quash the FIR and investigation or to
stay the arrest of the petitioner because
some of these directions or observations
have not been complied with. Only
because the High Court is of the opinion
that the particular case is not of such a
grave nature necessitating arrest, or that
the accused is not likely to abscond or
that his arrest is not needed for the
purpose of investigation, the High Court
is not empowered to substitute its
discretion in place of the discretion of
the Investigating officer, who alone is
entitled to arrive at a conclusion as to
whether there is any need to effect
arrest during investigation.
Case law discussed:
AIR 1992 SC-604, AIR 1995 SC-196, 2003 SCC
(2) 649, 2003 (11) SCC-251, AIR 2005 SC1057, AIR 1968 SC-117, AIR 1980 SC-326, AIR
1993 SC-1082, 2005 (7) SCC-56, AIR 1982 SC949, AIR 1988 SC-709, AIR 1993 SC-892, AIR
2000 SC-754, AIR 1988 SC-128, 1996 (7) SCC705, AIR 1983 SC-1219, 1999 (8) SCC-686,
2006 SCW-2543, 1995 (4) SCC-41, AIR 2000
SC-1405, AIR 1989 SC-714, 1997 (1) SCC-416,
AIR 1987 SC-877, 1999 (8) SCC-508, 2005
(13) SCC-540, 2003 (11) SCC-251, AIR 1991
SC-1260, AIR 1996 SCC (7) 212, 2001 (2)
SCC-17, 2001 (8) SCC-645, 2005 (12) SCC338, 2001 SCC (7) 659, AIR 2000 SC-1869,
AIR 1990 Crl. 648, AIR 2002 SC-441, AIR 2004
SC-4320, AIR 1971 SC-530, AIR 1985 SC-218,
AIR 1980 SC-1707, 1992 (4) SCC-363, AIR
2002 SC-834, 2004 (2) SCC-362, AIR 2003 SC2661, AIR 1988 SC-661,

(Delivered by Dr. B.S. Chauhan, J.)

ISSUES BEFORE THE FULL BENCH:-

1. A Division Bench of this Court
vide order dated 22.08.2000, referred two
questions
to
a
larger
Bench
for
determination/answer, namely;

1.
Whether arrest during investigation
can be stayed by this Court only in
rarest of rare cases as observed in
Satyapal Vs. State of U.P. & Ors.,
2000 Cr.L.J. 569, or according to the
criteria laid down by the Supreme
Court in Joginder Kumar Vs. State of
U.P. & Ors.,(1994) 4 SCC 260?

2.
Whether the Full Bench in Satyapal's
case was right in holding that
Joginder Kumar's case was delivered
on its own peculiar facts and
circumstances and hence does not lay
down any legal principles relating to
the power of arrest and the power of
stay to arrest by this Court?
3 All] Bhupendra Singh V. State of U.P. and another
1025
BACKGROUND
OF
THE
CASE
AND
CONTENTIONS
ON
BEHALF
OF
THE
PARTIES:-

2. The petitioner Ajit Singh filed this
writ petition for quashing the First
Information Report dated 19.05.2000
(Annex.1) registered as Case Crime No.
144 of 2000, under Sections 323, 504, 506
Indian Penal Code and Section 3(1) (x) of
The Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act,
1989, Police Station Kuthan, District
Jaunpur. When the matter came up for
hearing, it was submitted by the learned
counsel for the petitioner before the
Division Bench that the F.I.R. had been
filed at a belated stage on 19.05.2000 in
respect of the incident alleged to have
occurred on 24.03.2000 and the petitioner
apprehended
the
arrest
by
the
investigating agency at the behest of
respondent no.3 Hansraj, the complainant.
Stay of arrest was prayed contending that
the arrest was likely to be made in
contravention of the law laid down by the
Hon'ble Apex Court in Joginder Kumar's
case wherein it has been held that the
arrest should not be made in every case in
routine and it may be made only where
there is a justification for making the
arrest and necessary in the facts and
circumstances of that case. The contention
was opposed by the learned Government
Advocate placing reliance upon the Full
Bench
judgment
of
this
Court
in
Satyapal's case wherein it has been held
that arrest should be stayed only in rarest
of rare cases and not as a matter of
routine, observing that the Hon'ble Apex
Court decided the case of Joginder
Kumar's case on the facts of that case and
it does not lay down the law for universal
application. The Division Bench was of
the opinion that the Full Bench had made
observations in contravention of the law
laid down by the Hon'ble Apex Court
which was not permissible in view of the
provisions
of
Article
141
of
the
Constitution of India and, therefore,
referred the aforesaid two questions to the
larger Bench.

3. We have heard Shri Ramender
Asthana, Shri S.P. Shukla and Shri Prem
Prakash, learned counsel for the petitioner
and
Shri
V.S.
Mishra,
learned
Government Advocate for the State.

4. Learned counsel for the petitioner
have submitted that the judgment of the
Full Bench in Satyapal's case does not lay
down the correct law that this Court
should stay arrest only in rarest of rare
cases as it is in contravention of the law
laid down by the Hon'ble Apex Court in
Joginder Kumar's case and as the law laid
down by the Hon'ble Apex Court is
binding on all Courts in view of the
provisions
of
Article
141
of
the
Constitution
of
India,
it
was
not
permissible for the Full Bench to say that
the guidelines issued in Joginder Kumar's
case need to be confined to the peculiar
facts and circumstances of that case,
which were distinguishable from the facts
of the case before the Full Bench. As the
arrest may destroy the reputation of a
person and it brings humiliation, it is
violative of Articles 14 and 21 of the
Constitution of India and this Court, being
the custodian of law, has a solemn duty to
protect the rights of the persons.

5. On the contrary, Shri V.S. Mishra,
learned
Government
Advocate
has
submitted that the Full Bench of this
Court in Satyapal's case has not made any
1026 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
observations in contravention of the
guidelines issued in Joginder Kumar's
case as the issues involved in both the
cases were entirely different. In Joginder
Kumar, the Hon'ble Apex Court dealt
with the power of the police to arrest and
the guidelines have been issued as under
what circumstances the arrest should be
made. On the other hand, the Full Bench
of this Court in Satyapal's case considered
the
scope
of
interference
with
investigation by this Court, therefore, it
cannot be held that this Court had made
any observation in contravention of the
law laid down in Joginder Kumar's case.

SCOPE
OF
POLICE
POWERS
OF
INVESTIGATION AND COURT'S POWERS:

6. There can be no quarrel with the
settled legal proposition that arrest is a
part of investigation and it is not
permissible to agitate that the Court can
stay the arrest unless the Court is of the
view that in the peculiar facts of a
particular case, it is necessary to interfere
with the investigation. That the powers of
investigation fall within the exclusive
domain of the police, and at this stage
courts cannot intervene unless the police
acts wholly without jurisdiction by
seeking to investigate an non-cognizable
offence without the permission of a
Magistrate, or where there may be some
other
statutory
restriction
on
investigation. It is only after submission
of the charge sheet, if the FIR and
investigation do not disclose commission
of a cognizable offence, or according to
other well settled principles delineated by
the apex Court and this Court in various
decisions, can the High Court grant some
appropriate relief.

7. In State of Haryana & Ors. Vs.
Ch. Bhajan Lal & Ors., AIR 1992 SC 604,
the Hon'ble Supreme Court observed as
under:-

"The sum and substance of the above
deliberation results in a conclusion that
the investigation of an offence is the
field exclusively reserved for the police
officers whose powers in that field are
unfettered so long as the power to
investigate into the cognizable offences
is
legitimately
exercised
in
strict
compliance with the provisions falling
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 aforementioned.
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 appropriate 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." (Emphasis added)

8. The extent and scope of powers of
the courts and police respectively have
also been spelt out by the Hon'ble
3 All] Ajeet Singh @ Muraha V. State of U.P. and others
1027
Supreme Court in H.N. Rishbud & Anr.
Vs. State of Delhi, AIR 1955 SC 196,
observing that investigation usually starts
on information relating to the commission
of an offence given to an officer in charge
of a police station and recorded under
Section 154 of the Code. If from
information so received or otherwise, the
officer in charge of the police station has
reason to suspect the commission of an
offence, he or some other subordinate
officer deputed by him, has to proceed to
the spot to investigate the facts and
circumstances of the case and if necessary
to take measures for the discovery and
arrest of the offender. Thus investigation
primarily consists in the ascertainment of
the facts and circumstances of the case.
By
definition,
it
includes
"all the
proceedings under the Code for the
collection of evidence conducted by a
police officer". For the above purposes,
the investigating officer is given the
power to require before himself the
attendance of any person appearing to be
acquainted with the circumstances of the
case. He has also the authority to examine
such person orally. Under Section 155 the
officer in charge of a police station has
the power of making a search in any place
for the seizure of anything believed to be
necessary
for
the
purpose
of
the
investigation. The search has to be
conducted by such officer in person. The
investigating officer has also the power to
arrest the person or persons suspected of
the commission of the offence under
Section 54 of the Code. A police officer
making an investigation is enjoined to
enter his proceedings in a diary from dayto-day. Where such investigation cannot
be completed within the period of 24
hours and the accused is in custody he is
enjoined also to send a copy of the entries
in the diary to the Magistrate concerned.
If,
upon
the
completion
of
the
investigation it appears to the officer in
charge of the police station that there is no
sufficient evidence or reasonable ground,
he may decide to release the suspected
accused, if in custody, on his executing a
bond. If, however, it appears to him that
there is sufficient evidence or reasonable
ground, to place the accused on trial, he is
to take the necessary steps therefore under
Section 170 of the Code. In either case, on
the completion of the investigation he has
to submit a report to the Magistrate under
Section 173 of the Code in the prescribed
form furnishing various details.

9. Further, the powers of the police
to effect an arrest under section 41 Cr.P.C
has been clarified in M.C. Abraham &
Anr. Vs. State of Maharashtra & Ors.,
(2003) 2 SCC 649 :

"In the first place, arrest of an
accused is a part of the investigation and
is
within
the
discretion
of
the
investigating officer. Section 41 of the
Code of Criminal Procedure provides for
arrest by a police officer without an order
from a Magistrate and without a warrant.
The section gives discretion to the police
officer who may, without an order from a
Magistrate and even without a warrant,
arrest any person in the situations
enumerated in that section. It is open to
him, in the course of investigation, to
arrest any person who has been
concerned with any cognizable offence
or
against
whom
a
reasonable
complaint has been made or credible
information has been received, or a
reasonable suspicion exists of his having
been so concerned. Obviously, he is not
expected to act in a mechanical manner
and in all cases to arrest the accused as
soon as the report is lodged. In
1028 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
appropriate
cases,
after
some
investigation, the investigating officer
may make up his mind as to whether it
is necessary to arrest the accused
person. At that stage the court has no
role to play. Since the power is
discretionary, a police officer is not
always bound to arrest an accused even
if the allegation against him is of having
committed a cognizable offence. Since an
arrest is in the nature of an encroachment
on the liberty of the subject and does
affect the reputation and status of the
citizen, the power has to be cautiously
exercised. It depends inter alia upon the
nature of the offence alleged and the type
of persons who are accused of having
committed
the
cognizable
offence.
Obviously, the power has to be exercised
with caution and circumspection".
(Emphasis added).

10. In M. Narayandas Vs. State of
Karnataka & Ors.,(2003) 11 SCC 251, the
Apex Court held that at the stage when a
report of a cognizable offence under
section 154(1) of the Code is lodged, the
concerned police officer is not to refuse to
register the case or to embark on an
enquiry about
the genuineness
and
reliability
of
the
allegations.
The
investigation at this stage is the exclusive
prerogative of the police officer, and the
Courts do not have any power to
intervene with the investigation so long as
the police officer acts according to his
statutory powers. It is only on failure to
investigate a cognizable offence that the
competent
Magistrate
can
issue
a
direction to the competent police officer
to investigate the offence or to inquire
into the offence himself or through a
subordinate magistrate. The Court held as
under:-

"The core of the above sections,
namely, 156, 157 and 159 of the Code is
that if a police officer has reason to
suspect the commission of a cognizable
offence, he must either proceed with
the
investigation
or
cause
an
investigation to be proceeded with by
his subordinate; that in a case where the
police officer sees no sufficient ground
for investigation, he can dispense with the
investigation altogether; that the field of
investigation of any cognizable offence
is exclusively within the domain of the
investigating agencies over which the
courts cannot have control and have no
power to stifle or impinge upon the
proceedings in the investigation so long as
the investigation proceeds in compliance
with
the
provisions
relating
to
investigation and that it is only in a case
wherein a police officer decides not to
investigate an offence, the Magistrate
concerned can intervene and either
direct an investigation or in the
alternative, if he thinks fit, he himself
can, at once proceed or depute any
Magistrate subordinate to him to
proceed to hold a preliminary inquiry into
or otherwise to dispose of the case in the
manner provided in the Code." (Emphasis
supplied)

11. In Adri Dharan Das Vs. State of
West Bengal, AIR 2005 SC 1057, the
necessity of arrest for various aspects of
investigation have been clarified by the
Hon'ble Supreme Court observing as
follows:-

"Ordinarily, arrest is a part of the
process of investigation intended to
secure several purposes. The accused
may have to be questioned in detail
regarding various facets of motive,
preparation, commission and aftermath
3 All] Ajeet Singh @ Muraha V. State of U.P. and others
1029
of the crime and the connection of
other persons, if any, in the crime.
There may be circumstances in which the
accused
may
provide
information
leading to discovery of material facts. It
may be necessary to curtail his freedom
in order to enable the investigation to
proceed without hindrance and to
protect
witnesses
and
persons
connected with the victim of the crime,
to
prevent
his
disappearance,
to
maintain law and order in the locality.
For these or other reasons, arrest may
become an inevitable part of the process
of investigation. The legality of the
proposed arrest cannot be gone into in an
application under Section 438 of the
Code. The role of the investigator is
well defined and the jurisdictional
scope of interference by the court in the
process of investigation is limited. The
court ordinarily will not interfere with
the investigation of a crime or with the
arrest of the accused in a cognizable
offence. An interim order restraining
arrest, if passed while dealing with an
application under Section 438 of the Code
will amount to interference in the
investigation, which cannot, at any rate,
be done under Section 438 of the Code."
(Emphasis added).

12. The scope of interference at the
stage of investigation is no more res
integra as it has been considered by the
Hon'ble Supreme Court time and again. In
Emperor Vs. Khwaja Nazir Ahmad, AIR
1945 PC 18, the Privy Council considered
the issue while dealing with the statutory
rights of the police under Sections 154
and 156 of the Code of Criminal
Procedure
(hereinafter
called
the
''Cr.P.C.')
for
investigation
of
a
cognizable
offence
and
made
the
following observations:-

"........So
it
is
of
the
utmost
importance that the judiciary should not
interfere with the police in matters which
are within their province and into which
the law imposes upon them the duty of
enquiry..........it would be an unfortunate
result if it should be held possible to
interfere with those statutory rights by an
exercise of the inherent jurisdiction of the
Court. The functions of the judiciary
and the police are complimentary not
overlapping and the combination of
individual
liberty
with
a
due
observance of law and order is only to
be obtained by leaving each to exercise
its own function, ... the Court's
functions begin when a charge is
preferred before it and not until
then...." (Emphasis added).

13. Similarly, in Abhinandan Jha &
Ors. Vs. Dinesh Mishra, AIR 1968 SC
117, the Hon'ble Apex Court considered
the same provision of Cr.P.C. and held
that the field of investigation of any
cognizable offence is exclusively within
the domain of the investigating agency
over which the Courts cannot have
control and have no power to stifle or
impinge upon the proceedings in the
investigation
so
long
as
the
investigation proceeds in compliance
with
the
provisions
relating
to
investigation.

14. In State of Bihar & Anr. Vs.
J.A.C. Saldanna & Ors., AIR 1980 SC
326, the Hon'ble Apex Court while
dealing with the powers of investigation
of a police officer under Cr.P.C. observed
as under:-

"There is a clear-cut and well
demarcated sphere of activity in the field
1030 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
of crime detection and crime punishment.
Investigation of an offence is the field
exclusively for the Executive through
the police department, superintendence
over
which
vests
in
the
State
Government. Once it investigates and
finds
an
offence
having
been
committed, it is its duty to collect
evidence for the purpose of proving the
offence. Once that is completed and the
Investigating Officer submits report to the
Court requesting the Court to take
cognizance of the offence under Section
190 of the Code, its duty comes to an
end." (Emphasis added).

15. Thus, in view of the above, it is
evident that generally investigation falls
within the exclusive domain of the
Executive and scope of judicial review is
very limited in exceptional cases.

'AUDI
ALTERAM
PARTEM'
RULE
OR
RIGHT OF ACCUSED TO NOTICE AT
INVESTIGATION STAGE:

16. It has been observed in Union of
India & Anr. Vs. W.N. Chadha, AIR 1993
SC 1082 that at the stage of investigation
and initial arrest the rule of audi alteram
partem has no application and the accused
has no right of notice or hearing before
his arrest, if any, in a cognizable case.
Nor the accused has any right as to choose
the manner and method of investigation
save under certain exceptions provided in
the Code itself. The Court held as under:-

"True,
there
are
certain
rights
conferred on an accused to be enjoyed at
certain stages under the Code of Criminal
Procedure
--
such
as
Section
50
whereunder the person arrested is to be
informed of the grounds of his arrest and
to his right of bail and under Section 57
dealing with person arrested not to be
detained for more than 24 hours and
under Section 167 dealing with the
procedure if the investigation cannot be
completed in 24 hours -- which are all in
conformity with the ''Right to Life' and
''Personal Liberty' enshrined in Article 21
of the Constitution and the valuable
safeguards ingrained in Article 22 of the
Constitution for the protection of an
arrestee or detenu in certain cases. But so
long as the investigating agency proceeds
with his action or investigation in strict
compliance with the statutory provisions
relating to arrest or investigation of a
criminal case and according to the
procedure established by law, no one can
make any legitimate grievance to stifle or
to impinge upon the proceedings of arrest
or detention during investigation as the
case may be, in accordance with the
provisions of the Code of Criminal
Procedure."

17. In State of Maharashtra Vs.
Mohd. Rashid & Anr.,(2005) 7 SCC 56,
the question as to the right of an accused
to four working days written notice
whenever his arrest was needed in the
following three years came up for
consideration.
The
Hon'ble
Supreme
Court held that the accused had no such
right of notice. "Such a blanket protection
of not arresting the first respondent in any
crime, except after written notice to him,
could not be passed."

18. Thus, in view of the above, it is
evident that an accused cannot claim a
right to notice/hearing before arrest is
made.

SCOPE
OF
INTERFERENCE
UNDER
ARTICLE 226 OF THE CONSTITUTION:
3 All] Ajeet Singh @ Muraha V. State of U.P. and others
1031
The power of quashing the criminal
proceedings has to be exercised very
sparingly and with circumspection and
that too in the rarest of rare cases and
the Court cannot be justified in embarking
upon an enquiry as to the reliability or
genuineness or otherwise of allegations
made in the F.I.R. or complaint and the
extraordinary and inherent powers of
Court
do
not
confer
an
arbitrary
jurisdiction on the Court to act according
to its whims or caprice. However, the
Court, under its inherent powers, can
neither intervene at an uncalled for stage
nor it can ''soft-pedal the course of justice'
at a crucial stage of investigation/
proceedings. (Vide State of West Bengal
& Ors. Vs. Swapan Kumar Guha & Ors.,
AIR 1982 SC 949; Madhavrao Jiwaji Rao
Scindia
&
Anr.
Vs.
Sambhajirao
Chandrojirao Angre & Ors., AIR 1988 SC
709; The Janata Dal Vs. H.S. Chowdhary
& ors., AIR 1993 SC 892; Mrs. Rupan
Deol Bajaj & Anr. Vs. Kanwar Pal Singh
Gill & Anr., AIR 1996 SC 309; G. Sagar
Suri & Anr. Vs. State of U.P. & Ors., AIR
2000 SC 754; and Ajay Mitra Vs. State of
M.P., AIR 2003 SC 1069).

19. In M/s. Pepsi Foods Ltd. & Anr.
Vs. Special Judicial Magistrate & Ors.,
AIR 1998 SC 128, a similar issue was
considered and the Hon'ble Apex Court
held that the criminal law cannot be set
into motion as a matter of course. The
provisions of Articles 226, 227 of the
Constitution of India and Section 482 of
the Code are a device to advance justice
and not to frustrate it. The power of
judicial review is discretionary, however,
it must be exercised to prevent the
miscarriage of justice and for correcting
some
grave
errors
that
might
be
committed by the Subordinate Courts as it
is the duty of the High Court to prevent
the abuse of process of law by the inferior
Courts and to see that esteem of
administration of justice remains clean
and pure. However, there are no limits of
power of the Court but more the power
more due care and caution is to be
exercised invoking these powers. The
Apex Court held that nomenclature under
which the petition is filed is totally
irrelevant and does not prevent the Courts
from exercising its jurisdiction which
otherwise it possesses unless there is a
special
procedure
prescribed
which
procedure is mandatory.

20. In State of U.P. Vs. O.P.
Sharma, (1996) 7 SCC 705, the Hon'ble
Supreme Court has indicated that the
High Court should be loath to interfere at
the threshold to thwart the prosecution
exercising its inherent power under
Section 482 of the Code or under article
226 or 227 of the Constitution of India, as
the case may be, and allow the law to take
its own course. Similar view had been
taken in Pratibha Rani Vs. Suraj kumar &
Anr., AIR 1985 SC 628.

21. In L.V. Jadhav Vs. Shankarrao
Abasaheb Pawar & Ors., AIR 1983 SC
1219, the Apex Court held that Court's
power is limited only to examine that the
process of law should not be misused to
harass a citizen and for that purpose, the
high Court has no authority or jurisdiction
to go into the matter or examine the
correctness of allegations unless the
allegations are patently absurd and
inherently improbable so that no prudent
person can ever reach to such a
conclusion and that there is sufficient
ground for proceeding against the accused
but the Court, at that stage, cannot go into
the truth or falsity of the allegations.
1032 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
22. In Trisuns Chemical Industry
Vs. Rajesh Agarwal & Ors., (1999) 8
SCC 686, the Supreme Court placed
reliance upon its earlier judgment in
Rajesh Bajaj Vs. State N.C.T. of Delhi &
Ors., AIR 1999 SC 1216 and observed
that the inherent power of the High Court
should be limited to very extreme
exceptions. The said judgment was
approved and followed by the Apex Court
in Ram Biraji Devi Vs. Umesh Kumar
Singh & Ors., 2006 AIR SCW 2543,
wherein the Apex Court reiterated that the
power can be used only in extreme
exceptions where it is necessary to do so
in t he interest of justice.

23. In State of Haryana & ors. Vs.
Ch. Bhajan Lal (supra), the Hon'ble
Supreme Court laid down the guide-lines
for exercising the inherent power as
under:-

1.
Where the allegations made in the
First Information Report or the
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. Where the allegations in the first
Information
Report
and
other
materials, if any, accompanying the
F.I.R. do not disclose a cognizable
offence, justifying an investigation
by police officers under S. 156(1) of
the Code except under an order of a
Magistrate within the purview of
S.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 disclose the commission
of any offence and make out as case
against the accused.

4.
Where, the allegations in the F.I.R.
do not constitute a cognizable
offence but constitute only a noncognizable offence, no investigation
is permitted by as police officer
without an order of a Magistrate ass
contemplated under S. 155(2) of the
Code.

5.
Where the allegations made in the
FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever
reach a just conclusion that there is
sufficient ground for proceeding
against the accused.

6.
Where there is an express legal bar
engrafted in any of the provisions of
the Code or the concerned Act (under
which a criminal proceeding is
instituted) to the institution and
continuance of the proceedings and/
or where there is a specific provision
the Code or the concerned Act,
providing efficacious redress for the
grievance of the aggrieved party.

7. Where a criminal proceeding is
manifestly attended with malafide
and/ or where the proceeding is
maliciously instituted with an ulterior
motive for wreaking vengeance on
the accused and with a view to spite
him due to private and personal
grudge.

24. In Ganesh Narayan Hegde Vs. S.
Bangarappa & Ors., (1995) 4 SCC 41, an
earlier decision in Mrs. Dhanalakshmi Vs.
R. Prasanna Kumar & Ors., AIR 1990 SC
494, has been cited with approval for the
3 All] Ajeet Singh @ Muraha V. State of U.P. and others
1033
proposition that there should be no undue
interference by the High Court as no
meticulous examination of the evidence is
needed for considering whether the case
would end in conviction or not at this
stage. The High Court should interfere
only where it is satisfied that if the
complaint is allowed to be proceeded
with, it would amount to abuse of process
of court or that the interests of justice
otherwise call for quashing of the charges.

25. In Zandu Pharmaceutical Works
Ltd. Vs. Mohd. Sharaful Haque & Ors.,
AIR 2005 SC 9, the Hon'ble Apex Court
held that criminal proceedings can be
quashed but such power is to be exercised
sparingly, carefully with caution and only
when such exercise is justified by the tests
specifically laid down in the statutory
provisions itself. It is to be exercised ex
debito justitiae to do real and substantial
justice for administration of which alone
Courts exist. Wherever any attempt is
made to abuse that authority so as to
produce injustice, the Court has power to
prevent the abuse. A case where the FI.R.
or the complaint does not disclose any
offence or is frivolous, vexatious or
oppressive, the proceedings can be
quashed. It is, however, not necessary that
at this stage there should be meticulous
analysis of the case before the trial to find
out whether the case ends in conviction or
acquittal. The allegations have to be read
as a whole.

26. In State of W.B. Vs. Narayan K.
Patodia, AIR 2000 SC 1405, The Apex
Court observed that lodging an FIR is
only the first step of investigation by the
police. Premature quashing of the FIR at
the initial stage instead of serving the
cause of justice, harmed it. The inherent
powers of the High Court are reserved to
be used "to give effect to any orders under
the Code, or to prevent abuse of the
process of any court or otherwise to
secure the ends of justice".

27. Undoubtedly, the enjoyment of a
good reputation is a personal right and,
thus, dignity of a person is to be protected
as guaranteed under Article 21 of the
Constitution of India. Filing F.I.R. and
visit by the police for arrest of a person on
the
basis
of
false
and
frivolous
F.I.R./complaint,
may,
result
in
incalculable harm to his reputation and
self-respect. Such a right has been
recognised by the Hon'ble Apex Court in
Joginder Kumar's case and Smt. Kiran
Bedi & Anr. Vs. Committee of Enquiry &
Anr., AIR 1989 SC 714 to be a personal
right. However, the law of arrest is one of
the balancing individual rights, liberties
and privileges, on the one hand and
individual
duties,
obligations
and
responsibilities on the other; of weighing
and balancing the rights, liberties and
privileges of the single individual and
those of individuals collectively; of
simply deciding what is wanted and
where to put the weight and the emphasis;
of doing which comes first - the criminals
or society, the law violator or the law
abider.

28. In D.K. Basu Vs. State of West
Bengal, (1997) 1 SCC 416, the Hon'ble
Apex Court held that when the crime goes
unpunished, the criminals are encouraged
and the society suffers. The victim of
crime or his kith and kin become
frustrated and contempt for law develops.
The Court further observed as under:-

"........if we lay too much of emphasis
on protection of their fundamental rights
and human rights, such criminals may go
1034 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
scot-free without exposing any element or
iota of criminality, the crime would go
unpunished and in the ultimate analysis,
the society would suffer. The concern is
genuine and the problem is real. To deal
with such a situation, a balanced approach
is needed to meet the ends of justice. This
is all the more so, in view of the
expectation of the society that police must
deal with the criminals in an efficient and
effective manner and bring to book those
who are involved in the crime."
While deciding the said case, the
Hon'ble Supreme Court laid down certain
guidelines for the police, as how to act
and proceed when arrest is necessary. The
Court expected the legislature to bring
legislation to give effect to the said
guidelines.

29. In order to give effect to the law
laid down by the Hon'ble Supreme Court
in this case, the provisions of the Code
have been amended by Code of Criminal
Procedure (Amendment) Act, 2005 by
which Section 50-A has been inserted. It
requires the Police to give information
about the arrest of the person as well as
the place where he is being held to anyone
who may be nominated by him for
sending such information. It further
obliges the Magistrate concerned to
satisfy himself about the fulfillment of the
requirements of the said provision when
arrested person is produced before him in
order to ensure compliance of the said
law.
The
aforesaid
provisions
are
mandatory and any violation, thereof, can
be a ground available to an apprehended
person to question the correctness of the
arrest by the aforesaid procedure. This is
because the aforesaid Section is clearly
designed to protect the fundamental right
of a person guaranteed under Article 21 of
the Constitution, subject to reasonable
restriction as placed by the law enacted by
the Legislature. In our opinion, the
interpretation
of
the
said
provision
therefore makes it imperative for the
investigating agency not to apprehend a
person and further for the Magistrate to
satisfy himself that the investigating
agency had proceeded with in accordance
with law, which in our opinion would
ensure the safety and liberty of a person
from being abused and from preventing
any unwarranted arrest.
30. In Ahmed Noormohmed Bhatti
Vs. State of Gujarat, AIR 2005 SC 2115,
the Hon'ble Supreme Court held that for
violation of the guidelines contained in
D.K. Basu and Joginder Kumar the
appropriate remedy is departmental action
or contempt. The Court observed as
follows:-

"These requirements are in addition
to
the
constitutional
and
statutory
safeguards and do not detract from
various directions given by the courts
from time to time in connection with the
safeguarding of the rights and dignity of
the arrestee. This Court has also cautioned
that
failure
to
comply
with
the
requirements aforesaid, shall apart
from rendering the official concerned
liable for departmental action, also
render him liable to be punished for
contempt of court." (Emphasis added).

31. The Hon'ble Apex Court in Smt.
Nandini Satpathy Vs. P.L. Dani & Anr.,
AIR 1978 SC 1025, has observed that
emphasis should shift depending on
circumstances,
in
balancing
these
interests. The Hon'ble Apex Court in
Joginder Kumar's case after considering
the rights of the people guaranteed under
Articles 21 and 22(1) of the Constitution
of India, observed as under:-
3 All] Ajeet Singh @ Muraha V. State of U.P. and others
1035

"The incidents of personal liberty are
guaranteed under the Constitution of
India. 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.