# Smt. Manju Misra v. The State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 673
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-05-18
- **Case number:** Misc. Bench No. 4153 of 2015
- **Bench:** Ajai Lamba, Akhtar Husain Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-manju-misra-v-the-state-of-u-p-ors-43274
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-Mandamuspraying stay from arrest-offence under
Section 420, 467, 468, 504, 506, 471
IPC-as
in
sale
transaction-neither
beneficiary-nor
transferor-
evidence
being documentary nature no recovery
of any article required-nor custodian
interrogation requires-held-in view of
Smt.
Hema
Misra
case-if
evidence
submitted under Section 173-unto 10
days from notice no arrest-in case of
arrest conditional bail be given.
Held: Para-15
Keeping
in
view
the
facts
and
circumstances of the case, in context of
the law, as laid down by Hon'ble supreme
Court of India in Hema Mishra's case
(supra), as extracted above, we are of the
considered opinion that manifest injustice
would be caused if the petitioner is taken
in custody. The petitioner admittedly is not
a beneficiary in the transaction. The
evidence is documentary in nature. No
recovery is to be affected from the
petitioner. Custodial interrogation of the
petitioner
is
not
required
during
investigation proceedings.
Case Law discussed:
AIR 2014 SC 1066

## Text

2 All]
 Smt. Manju Misra Vs. The State of U.P. & Ors.
673
would be for the Trial Court to consider
the statement (s) of the prosecutrix and
conclude whether offence has been
committed or not.
20. The question posed to the Court
is answered in the negative, for the
reasons recorded above.
21. Considering the law as noticed
above, as also the peculiar facts and
circumstances of the case, this Court
would not like to interfere in the process
of investigation by way of issuing
direction to the magistrate to record
statement of the petitioner under Section
164 Cr.P.C.
22. Petition is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.05.2015
BEFORE
THE HON'BLE AJAI LAMBA, J.
THE HON'BLE AKHTAR HUSAIN KHAN, J.
Misc. Bench No. 4153 of 2015
Smt. Manju Misra
...Petitioner
Versus
The State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Gopal Trivedi, Lalit Kishore Pandey
Counsel for the Respondents:
Govt. Advocate, Arun Sinha, Riyaz Ahmad
Constitution of India, Art.-226-Mandamuspraying stay from arrest-offence under
Section 420, 467, 468, 504, 506, 471
IPC-as
in
sale
transaction-neither
beneficiary-nor
transferor-
evidence
being documentary nature no recovery
of any article required-nor custodian
interrogation requires-held-in view of
Smt.
Hema
Misra
case-if
evidence
submitted under Section 173-unto 10
days from notice no arrest-in case of
arrest conditional bail be given.
Held: Para-15
Keeping
in
view
the
facts
and
circumstances of the case, in context of
the law, as laid down by Hon'ble supreme
Court of India in Hema Mishra's case
(supra), as extracted above, we are of the
considered opinion that manifest injustice
would be caused if the petitioner is taken
in custody. The petitioner admittedly is not
a beneficiary in the transaction. The
evidence is documentary in nature. No
recovery is to be affected from the
petitioner. Custodial interrogation of the
petitioner
is
not
required
during
investigation proceedings.
Case Law discussed:
AIR 2014 SC 1066
(Delivered by Hon'ble Ajai Lamba, J.)
1. This petition seeks issuance of a
writ in the nature of certiorari quashing
First Information Report lodged as Case
Crime No.131 of 2015 under Sections
420, 504, 506, 467, 468, 471 I.P.C., P.S.
Bakshi Ka Talab, district Lucknow
(Annexure-1).
2.
In the second prayer, the petition
seeks issuance of a writ in the nature of
mandamus directing the Investigating Officer
not to arrest the petitioner in connection with
Case Crime No.131/2015 under Sections
420, 504, 506, 467, 468, 471 I.P.C., P.S.
Bakshi Ka Talab, district Lucknow .
3. Learned counsel appearing for the
petitioner states at the outset that the
petitioner does not press the petition in
regard to the first prayer, noted above.
The petitioner presses for grant of second
prayer in view of peculiar facts and
674
 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances of the case, viz. the first
Information Report is against a number of
persons. The petitioner is only one of such
accused, however, not a beneficiary in the
transaction.
4. Contention of learned counsel for the
petitioner is that the petitioner is not a
beneficiary; rather will not get the property at
issue on account of actions of the main
accused. It has been alleged in the First
Information Report that Rajnish Kumar
Mishra,
vide
sale-deed
executed
on
31.12.2014, sold the property in question in
favour of complainant (respondent No.3),
represented by Mr. Siddharth Sinha, Advocate
(Caveator). Just four months thereafter, the
property was gifted to the petitioner by
Rajnish Kumar Mishra through a gift deed
executed on 6.4.2015. The petitioner did not
have any intention to frustrate the right/title of
private respondent Preeti, which was gained
through execution of sale-deed, prior to
execution of the Gift Deed.
5.
Contention of learned counsel for
the petitioner is that the petitioner had no
role to play in the transaction. No overt act
can be attributed to the petitioner. The
documents are registered and can be
procured from the office of Sub Registrar.
The petitioner has no knowledge of any
exclusive fact which is required to be
extracted by way of interrogation of the
petitioner.
6. Learned counsel appearing for the
caveator admits the facts, as noted above.
It has been admitted that the petitioner is
not the transferor of the property, nor
appears to be the beneficiary.
7. Learned counsel for the parties
pray for disposal of the case at this stage
itself.
8. We have heard learned counsel.
9. In the considered opinion of the
Court, case of the petitioner is clearly
distinguishable from that of transferor of
the property, Rajnish Kumar Mishra.
10. In Hema Mishra versus State of
U.P. AIR 2014 SC 1066, in paras 22, 28,
35, 36 and 37, the Hon'ble Supreme Court
of India has held the following :
"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 naturally
impose considerable responsibility in its
application. All the same, the High Court
has got the power and sometimes duty in
appropriate cases to grant reliefs, though
it is not possible to pin-point what are the
appropriate cases, which have to be left to
the wisdom of the Court exercising
powers
under
Article
226
of
the
Constitution of India.
28. I would like to remark that in the
absence of any provisions like Section 438
of Cr.P.C. applicable in the State of Uttar
Pradesh, there is a tendency on the part
of the accused persons, against whom FIR
is lodged and/or charge-sheet is filed in
the Court to file Writ Petition for
quashing of those proceedings so that
they are able to get protection against the
arrest in the interregnum which is the
primary motive for filing such petitions. It
is for this reason that invariably after the
lodging of FIR, Writ Petition under
Article 226 is filed with main prayer to
2 All]
 Smt. Manju Misra Vs. The State of U.P. & Ors.
675
quash those proceedings and to claim
interim relief against pre-arrest in the
meantime or till the completion of the
trial. However, the considerations which
have to weigh with the High Court to
decide as to whether such proceedings
are to be quashed or not are entirely
different than that of granting interim
protection against the arrest. 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 .
35. It would be pertinent to mention
here that in light of above mentioned
statements and cases, the High Court
would not be incorrect or acting out of
jurisdiction if it exercises its power under
Art.226 to issue appropriate writ or
direction or order in exceptional cases at
the behest of a person accused of an
offence triable under the Act or offence
jointly triable with the offences under the
Act.
36. It is pertinent to mention that
though the High Courts have very wide
powers under Art.226, the very vastness
of the powers imposes on it the
responsibility
to
use
them
with
circumspection and in accordance with
the judicial consideration and well
established principles, so much so that
while entertaining writ petitions for
granting interim protection from arrest,
the Court would not go on to the extent of
including the provision of anticipatory
bail as a blanket provision.
37. Thus, such a power has to be
exercised very cautiously keeping in view,
at the same time, that the provisions of
Article 226 are a devise to advance
justice and not to frustrate it. The powers
are, therefore, to be exercised to prevent
miscarriage of justice and to prevent
abuse of process of law by authorities
indiscriminately making pre-arrest of the
accused persons. In entertaining such a
petition under Art.226, the High Court is
supposed to balance the two interests. On
the one hand, the Court is to ensure that
such a power under Art.226 is not to be
exercised liberally so as to convert it into
Section 438,Cr.P.C. proceedings, keeping
in mind that when this provision is
specifically omitted in the State of Uttar
Pradesh, it cannot be resorted to as to
back door entry via Art.226. On the other
hand, wherever the High Court finds that
in a given case if the protection against
pre-arrest is not given, it would amount to
gross miscarriage of justice and no case,
at all, is made for arrest pending trial, the
High Court would be free to grant the
relief in the nature of anticipatory bail in
exercise of its power under Art. 226 of the
Constitution. It is again clarified that this
power has to be exercised sparingly in
those cases where it is absolutely
warranted and justified."
11. The Court is of the considered
opinion that the Court is required to
balance the equities while considering
petition for issuance of a writ in the nature
of mandamus directing the investigating
officer not to arrest a person accused of
committing an offence.
12. No person can be deprived of his
personal liberty, except in accordance
with the procedure established by law.
The procedure in such cases, has been
provided under the Code of Criminal
Procedure, 1973. The investigation of a
case is required to be conducted under
Chapter XII of the said Code. A person
676
 INDIAN LAW REPORTS ALLAHABAD SERIES
accused of committing a cognizable
offence
can
be
arrested
by
the
investigating agency.
13. This Court, however, is required to
deliberate various aspects of the case, while
ruling on petition of an accused approaching
this Court for issuance of a writ in the nature
of mandamus, as sought by the petitioner. In
view of the judgment rendered by the
Hon'ble Supreme Court of India in Hema
Mishra's case (supra), writ in the nature of
mandamus can be issued, in case petitioner
shows exceptional circumstances. In the
considered opinion of the Court, the various
parameters to be considered would include
seriousness/gravity of the offence; role
played by the accused approaching the
Court,
in
the
incident/transaction;
antecedents/criminal history of such accused
petitioner; nature of offence allegedly
committed;
chances
of
the
accused/
petitioner escaping from the clutches of law,
or delaying the process of investigation or
trial; in case relief is granted, whether it
would
result
in
interference
with
investigation
process;
whether
the
investigating agency apprehends that a fact
would be discovered as a consequence of
information received from the accused;
whether
custodial
interrogation
of
accused/petitioner is required for effective
investigation; and whether there is prima
facie evidence/material available to indicate
involvement of the petitioner in commission
of the crime. These aspects, as noted above,
are some, and not all the factors to be
considered while weighing the liberty of
such person vis-a-vis public interest and
interest of effective investigation.
14. The petitioner is required to
make out a special/exceptional case for
grant of relief, as sought by her. It is
markedly
to
be
seen
whether
the
petitioner/ accused has been evading the
process of law. The larger interest of the
public or the State is required to be
considered while contemplating whether
relief of pre arrest bail is to be given, or
not.
15. Keeping in view the facts and
circumstances of the case, in context of
the law, as laid down by Hon'ble supreme
Court of India in Hema Mishra's case
(supra), as extracted above, we are of the
considered opinion that manifest injustice
would be caused if the petitioner is taken
in custody. The petitioner admittedly is
not a beneficiary in the transaction. The
evidence is documentary in nature. No
recovery is to be affected from the
petitioner. Custodial interrogation of the
petitioner
is
not
required
during
investigation proceedings.
16.
Rajnish Kumar Mishra, the main
accused executed a gift deed in favour of the
petitioner. The pleaded case of the petitioner
is that the petitioner had no knowledge of the
earlier sale-deed executed in favour of
respondent No.3. In such circumstances,
involvement of the petitioner in the crime
appears to be remote. Equity and law,
considered in context of the facts, demand
that the prayer pressed by the petitioner is
allowed.
17. Liberty is a precious right of
every citizen of the country. It would be
miscarriage of justice if the petitioner is
allowed to be taken in custody. The
petitioner is entitled to protection of the
Court, particularly because by way of
arrest of the petitioner and curtailing his
liberty, interest of investigation shall not
be advanced. Effective investigation can
be conducted even without arrest of the
petitioner, in view of the facts and
2 All] Santosh Kumar Mishra Vs. State of U.P.
677
circumstances, noted above. The offence
per se is not against the public; rather
involves transfer of property having civil
consequences. The transaction has civil
complexion. The respondents have not
drawn attention of the Court towards any
material which would indicate that
petitioner has criminal antecedents. In the
opinion of the Court, this is one of the
exceptional cases, in which extraordinary
writ jurisdiction is required to be invoked.
18. In view of above, a writ in the
nature of mandamus is issued. It is
directed that in the event of arrest in Case
Crime No.131 of 2015 under Sections
420, 504, 506, 467, 468, 471 I.P.C., P.S.
Bakshi Ka Talab, district Lucknow, the
petitioner shall be enlarged on bail on her
furnishing bail bonds to the satisfaction of
the arresting/Investigating Officer, subject
to the following conditions :
(1) The petitioner shall make herself
available for interrogation as and when
required;
(2) The petitioner shall not directly
or indirectly make any inducement, threat
or promise to any person acquainted with
the facts of the case so as to dissuade him
from disclosing such facts to the Court, or
to the investigating agency; and
(3) The petitioner shall not leave
India without the previous permission of
the Court.
It is further directed that this order
shall subsist till 10 days after the
petitioner receives a notice of filing of
investigation report under Section 173
CrPC, within which period, the petitioner
would be at liberty to apply for regular
bail. The time thus granted would not be
extended by this Court.
It is specifically provided that the
prosecuting agency would be at liberty to
approach this Court for withdrawing the
concession granted to the petitioner, in
case the petitioner violates any of the
conditions imposed by this Court.
19. The petition is allowed in the
above terms.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.05.2015
BEFORE
THE HON'BLE ARVIND KUMAR TRIPATHI, J.
THE HON'BLE PRAMOD KUMAR
SRIVASTAVA, J.
Criminal Appeal No. 4479 of 2008
Santosh Kumar Mishra
 ...Appellant
Versus
State of U.P. .
...Opp. Party
Counsel for the Appellant:
Sri K.K. Tripathi, Sri Aman Khan, Sri M.K.
Tripathi, Sri Mohd. Aman Khan, Sri T.K.
Mishra
Counsel for the Opp. Party:
A.G.A.
Criminal
Appeal-conviction
for
offence
under
Section
323,
376,
504
IPCprosecution fully proved charges-beyond
doubt-evidence of complainant and victim
are
clinically
convincing-punishment
inflicted by Trail Court-confirmed-appeal
dismissed.
Held: Para-14
On the basis of above discussion we are of
the considered opinion that prosecution
side had proved the charges leveled against
the accused-appellant regarding allegation
of rape and trial Court had rightly passed
the judgment in this regard. The evidences
of
complainant
and
of
victim
are