# KM. HEMA MISHRA v. STATE OF U.P. AND OTHERS

- **Citation:** [2014] 1 S.C.R. 465
- **Court:** Supreme Court of India
- **Decided:** 2014-01-16
- **Case number:** Criminal Appeal No.146 of 2014
- **Bench:** K.S. Radhakrishnan, A.K. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/km-hema-mishra-v-state-of-u-p-and-others-29761
- **Pages:** 31

## Headnote

Code of Criminal Procedure, 1973:
A
B
ss.41(a), 41(b), 41A - Object of - Held: Is to check c
arbitrary or unwarranted arrest and protect the right to personal
liberty guaranteed u!Article 21 of the Constitution of India.
s.438 - State of U.P. - Pre arrest bail - Grant of - Writ
jurisdiction, if invokable - Held: s.438 has been specifically 0
omitted and made inapplicable in the State of U.P. - Still, a
party aggrieved against whom FIR is lodged and/or chargesheet is filed in court can invoke the jurisdiction of High ·court
u/Article 226 of the Constitution for quashing of proceedings
- The considerations, however which have to weigh with the
High Court to decide as to whether such proceedings are to
E
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 c;harge-sheet is dismissed, the grant of relief, incidental in
F
nature, against arrest would obviously not arise, even when a
justifiable case for grant of anticipatory bail is made out -
Though the High Courts have very wide powers u!Art.226, the
very vastness of the powers imposes on it the responsibility
to use them with circumspection and in accordance with the
G
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
465
H
466
SUPREME COURT REPORTS
(2014] 1 S.C.R.
A provision -
Thus, such a power has to be exercised vety
cautiously keeping in view, at the same time, that the
provisions of Article 226 are a device to advance justice and
not to frustrate it - Constitution of India, 1950 - Article 226.
B
s.438 - Anticipatoty bail - Purpose of - Discussed.
An FIR was lodged against the appellant under
sections 419/420 IPC. The appellant filed writ petition
seeking quashing of FIR, deferment of arrest until
collection of credible evidence sufficient for filing charge
C sheet by following amended proviso to Sections 41(1)(b)
r/w Section 41A Cr.P.C. The High Court dismissed the writ
petition. The instant appeal was filed challenging the
order of the High Court.
0
Dismissing the appeal, the Court
HELD:
Per K.S. Radhakrishnan, J.
E
1. Since the provisions similar to Section 438 Cr.P.C.
being absent in the State of Uttar Pradesh, the High Court
is burdened with large number of writ petitions filed
under Article 226 of the Constitution of India seeking prearrest bail. Section 438 was added to the Code of Criminal
F Procedure in the year 1973, in pursuance to the
recommendation made by the 41st Law Commission, but
in the State of Uttar Pradesh by Section 9 Criminal
Procedure (Uttar Pradesh) Amendment Act, 1976, Section
438 was specifically omitted, the legality of which came
up for consideration before the Constitution Bench of
G this Court in *Kartar Singh case wherein the Court held
that the deletion of the application of Section 438 in the
State of Uttar Pradesh by Section 9 of the Amendment Act
does not offend either Article 14, Article 19 or Article 21
of the Constitution of India and the State Legislature is
H
KM. HEMA MISHRA v. STATE OF U.P.
467
competent to delete that section, which is one of the
A
matters enumerated in tire concurrent list, and such a
deletion is valid under Article 254(2) of the Constitution
of lridia. Therefore, as per the Constitution Bench, a claim
for pre-arrest protection is neither a statutory nor a right
guaranteed under Article 14, Article 19 or Article 21 of the
B
Constitution of India. Therefore, there is no concept of
"anticipatory bail" as understood in Section 438 of the
Code in the State of Uttar Pradesh. [Paras 13, 14 and 16]
[477-H; 478-A-E; 479-B-C]
*Kartar Singh v. State of Punjab (1994) 3 SCC 569 = C
1994 (2) SCR 375; Balchand Jain v. State of M.P. (1976) 4

## Text

_Characters 0–39,614 of 58,309. This is a partial read: ask again with offset=39614 for what follows._

[2014] 1 S.C.R. 465
KM. HEMA MISHRA
v.
STATE OF U.P. AND OTHERS
(Criminal Appeal No.146 of 2014)
JANUARY 16, 2014
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]
Code of Criminal Procedure, 1973:
A
B
ss.41(a), 41(b), 41A - Object of - Held: Is to check c
arbitrary or unwarranted arrest and protect the right to personal
liberty guaranteed u!Article 21 of the Constitution of India.
s.438 - State of U.P. - Pre arrest bail - Grant of - Writ
jurisdiction, if invokable - Held: s.438 has been specifically 0
omitted and made inapplicable in the State of U.P. - Still, a
party aggrieved against whom FIR is lodged and/or chargesheet is filed in court can invoke the jurisdiction of High ·court
u/Article 226 of the Constitution for quashing of proceedings
- The considerations, however which have to weigh with the
High Court to decide as to whether such proceedings are to
E
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 c;harge-sheet is dismissed, the grant of relief, incidental in
F
nature, against arrest would obviously not arise, even when a
justifiable case for grant of anticipatory bail is made out -
Though the High Courts have very wide powers u!Art.226, the
very vastness of the powers imposes on it the responsibility
to use them with circumspection and in accordance with the
G
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
465
H
466
SUPREME COURT REPORTS
(2014] 1 S.C.R.
A provision -
Thus, such a power has to be exercised vety
cautiously keeping in view, at the same time, that the
provisions of Article 226 are a device to advance justice and
not to frustrate it - Constitution of India, 1950 - Article 226.
B
s.438 - Anticipatoty bail - Purpose of - Discussed.
An FIR was lodged against the appellant under
sections 419/420 IPC. The appellant filed writ petition
seeking quashing of FIR, deferment of arrest until
collection of credible evidence sufficient for filing charge
C sheet by following amended proviso to Sections 41(1)(b)
r/w Section 41A Cr.P.C. The High Court dismissed the writ
petition. The instant appeal was filed challenging the
order of the High Court.
0
Dismissing the appeal, the Court
HELD:
Per K.S. Radhakrishnan, J.
E
1. Since the provisions similar to Section 438 Cr.P.C.
being absent in the State of Uttar Pradesh, the High Court
is burdened with large number of writ petitions filed
under Article 226 of the Constitution of India seeking prearrest bail. Section 438 was added to the Code of Criminal
F Procedure in the year 1973, in pursuance to the
recommendation made by the 41st Law Commission, but
in the State of Uttar Pradesh by Section 9 Criminal
Procedure (Uttar Pradesh) Amendment Act, 1976, Section
438 was specifically omitted, the legality of which came
up for consideration before the Constitution Bench of
G this Court in *Kartar Singh case wherein the Court held
that the deletion of the application of Section 438 in the
State of Uttar Pradesh by Section 9 of the Amendment Act
does not offend either Article 14, Article 19 or Article 21
of the Constitution of India and the State Legislature is
H
KM. HEMA MISHRA v. STATE OF U.P.
467
competent to delete that section, which is one of the
A
matters enumerated in tire concurrent list, and such a
deletion is valid under Article 254(2) of the Constitution
of lridia. Therefore, as per the Constitution Bench, a claim
for pre-arrest protection is neither a statutory nor a right
guaranteed under Article 14, Article 19 or Article 21 of the
B
Constitution of India. Therefore, there is no concept of
"anticipatory bail" as understood in Section 438 of the
Code in the State of Uttar Pradesh. [Paras 13, 14 and 16]
[477-H; 478-A-E; 479-B-C]
*Kartar Singh v. State of Punjab (1994) 3 SCC 569 = C
1994 (2) SCR 375; Balchand Jain v. State of M.P. (1976) 4
SCC- 572 = 1977 (2) S.CR 52; Smt. Amarawati & Ors. v. State
. of U.P. (2005) Cri.L.J. 755; Lal Kamlendra Pratap Singh v.
State of Uttar Pradesh & Ors. (2009) 4 SCC 437 = 2009 (4)
SCR 'f.027; Som Mittal v. State of Kamataka (2008) 3 SCC
D
753 & (2008) 3 sec 574 = 2008 (3) SCR 130- relied on.
Satya Pal v. State of U.P. 2000 Cri.L.J. 569; Ajeet Singh
v. State of U.P. 2007 Cri.L.J. 170; Lalji Yadav & Ors. v. State
of U.P. & Anr. 1998 Cri.L.J. 2366; Kamlesh Singh v. State of E
U.P. & Anr. 1997 Cri.L.J. 2705 and Natho Mal v. State of U.P.
1994 Cri.L.J. 1919 - approved.
2. In this case, FIR was lodged for offences, under
Sections 419 and 420 IPC which carry a sentence of
maximum of three years and seven years respectively
F
with or without fine. Benefit of Section 41(a) Cr.P.C .. must
be available in a given case, which provides that an
investigating officer shall not arrest the accused of such
offences in a routine manner and the arrest be made, only
after following the restrictions imposed under Section
G
41(b). Amended provisions make it compulsory for the
police to record the reasons for making arrest as well as
for not making an arrest in respect of a cognizable
offence for which the maximum sentence is upto seven
years. Section 41 and 41A make it compulsory for the
H
468
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A police to issue a notice in all such cases where arrest is
not required to be made under Clause (b) of sub-section
(1) of the amended Section 41. But, all the same,
unwillingness of a person who has not been arrested to
identify himself and to whom a notice has been issued
B under Section 41A, could be a ground for his arrest.
Legislation has laid down various parameters, warranting
arrest of a person, which itself is a check on arbitrary or
unwarranted arrest and the right to personal liberty
guaranteed under Article 21 of the Constitution of India.
c There is unanimous 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
0 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
E appropriate cases, which have to be left to the wisdom
of the Court exercising powers under Article 226 of the
Constitution of India. [Paras 19, 20 21 and 22) [481-G-H;
482-A; 483-D; 484-C-G]
3. When the Court declined to decide on the rights of
F 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. The language of Article 226
G does not permit such an action and once the Court finds
no merits in the challenge, writ petition will have to be
dismissed and the question of granting further relief after
dismissal of the writ, does not arise. Consequently, once
a writ is dismissed, all the interim reliefs granted would
H also go. [Paras 23 and 24] [485-E-H]
KM. HEMA MISHRA v. STATE OF U.P.
469
State of Orissa v. Madan Gopal Rungta AIR 1952 SC 12
A
= 1952 SCR 28- relied on.
Per A.K. Sikri, J. ( Supplementing.l
HELD: 1. In the absence of any provisions like
Section 438, Cr.P.C. applicable in the State of Uttar
B
Pradesh, there is a tendency on the part of the accused
persons, against whom FIR is lodged and/or chargesheet 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
C
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 quash those
proceedings and to claim interim relief against pre-arrest
in the meantime or till the completion of the trial. However,
D
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
E
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. It is for this reason, in
appropriate cases, the High Court is empowered to
entertain the petition under Article 226 of the Constitution
of India where the main relief itself is against arrest.
Obviously, when provisions of Section 438 of Cr.P.C. are
F
not available to the accused persons in the State of Uttar G
Pradesh, under the normal circumstances such an
accused persons would not be entitled to claim such a
relief under Art. 226 of the Constitution. It cannot be
converted into a second window for the relief which is
consciously denied statutorily making it a case of casus
omissus. At the same time, the High Court cannot be
H
4 70
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A completely denuded of its powers under Article 226 of the
Constitution, to grant such a relief in appropriate and
deserving cases; albeit this power is to be exercised with
extreme caution and sparingly in those cases where
arrest of a person would lead to total miscarriage of
B justice. There may be cases where pre-arrest may be
entirely unwarranted
and
lead
to disastrous
consequences. Whenever the High Court is convinced of
such a situation, it would be appropriate to grant the relief
against pre-arrest in such cases. What would be those
c cases will have to be left to the wisdom of the High Court.
The High Court is not bereft of its powers to grant this
relief under Art. 226 of the Constitution. [Paras 3, 4) [487C-H; .488-A-D]
2. There may be imminent need to grant protection
D against pre-arrest. The object of this provision is to relieve
a person from being disgraced by trumped up charges
so that liberty of the subject is not put in jeopardy on
frivolous grounds at the instance of the unscrupulous or
irresponsible persons who may be in charge of the
E prosecution. An order of anticipatory bail does not in any
way, directly or indirectly; take away from the police their
right to investigate into charges made or to be made
against the person released on bail. [Para 6) [489-C-D]
F
Joginder Kumar v. State of UP. & Ors. 1994 Cr L.J. 1981
- relied on.
3. The purposes for which the provisions of
anticipatory bail are made are quite obvious. One of the
purposes of the arrest is that the accused should be
G available to the investigating machinery for further
investigation and questioning whenever he is required.
Another purpose is that the trial should not be
jeopardized and for this purpose the restrictions on the
movements of the accused are necessary. The
H genuineness of the alleged need for police custody has
KM. HEMA MISHRA v. STATE OF U.P.
471
to .. .be examined and it must be balanced against the duty
A
of courts to uphold the dignity of every man and to
vigilantly guard the right to liberty without jeopardizing
the state objective of maintenance of law and order. [Para
7] [489-E-G]
B
Kartar Singh and Ors. V. State of Punjab (1994) 3 SCC
569 = 1994 (2) SCR 375- relied on.
4. 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
C
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. 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
D
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
E
F
as a blanket provision. 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 G
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,
H
472
SUPREME COURT REPORTS
(2014] 1 S.C.R.
A 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
B 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.
[Paras 10, 11 and 12] [494-G-H; 495-A-C]
C Per K.S. Radhakrishnan, J.
D
E
F
G
H
Case Law Reference:
1994 (2) SCR 375
Relied on
2000 Cri.L.J. 569
Approved
2007 Cri.L.J. 170
Approved
1998 Cri.L.J. 2366
Approved
1997 Cri.L.J. 2705
Approved
1994 Cri.L.J. 1919
Approved
1977 (2) SCR 52
Relied on
(2005) Cri.L.J. 755
Relied on
2009 (4) SCR 1027
Relied on
2008 (3) SCR 130
Relied on
1952 SCR 28
Relied on
Per A.K. Sikri, J. { SUE!E!lementing}
Case Law Reference:
1994 Cr L.J. 1981
1994 (2) SCR 375
relied on
relied on
Para 13
Para 15
Para 15
Para 15
Para 15
Para 15
Para 16
Para 16
Para 17
Para 18
Para 23
Para 5
Para 8
KM. HEMA MISHRA v. STATE OF U.P.
473
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
A
No.146 of 2014
From the Judgment and Order dated 09.01.2012 of the
High Court of Judicature at Allahabad Lucknow Bench Lucknow
in writ Pentition Misc. Bench No. 171 of 2012.
Aseem Chandra, Anurag Singh, Vivek Singh, for the
Appellant.
Siddharth Luthra, ASG, Gaurav Bhatia, AAG, Binu Tamta,
B
B. Krishna Prasad, P.K. Dubey, Gurmohan Singh Bedi, Pranay
C
Agarwala, Shiv Pande, Shiv Chopra, Pragati Neekhra, Gautam
Talukdar, for the Respondents.
The Judgments of the Court were delivered by
K.S. RADHAKRISHNAN, J. 1. Leave granted.
D
2. Appellant herein had invoked the extraordinary
jurisdiction of the High Court under Article 226 of the
Constitution of India seeking the following reliefs:
(i)
(ii)
Issue a writ, order or direction in the nature of
E
Certiorari thereby quashing the impugned FIR
dated 21.12.2011, contained in Annexure No. 1 to
this writ petition, lodged at crime No. 797/11 under
Sections 419/420 IPC, at Police Station Zaidpur,
District Barabanki;
Issue a writ, order or direction in the nature of
Mandamus thereby directing the Superintendant of
Police, Barabanki, the opposite Party No. 2, and
F
the Investigating Officer, Case Crime No. 797/11,
G
under Sections 419/420 IPC, Police Station,
Zaidpur, District Barabanki, the opposite party No.
3, to defer the arrest of the petitioner until collection
of the credible evidence sufficient for filing the
charge-sheet by following the amended proviso to
H
A
8
c
474
SUPREME COURT REPORTS
[2014] 1 S.C.R.
Sections 41(1)(b) read with Section 41A CrPC;
(iii)
Issue a writ, order or direction in the nature of
Mandamus thereby directing the Superintendent of
Police, Barabanki, the opposite party No. 2, for
compliance of the provision of Sections 41 (1 )(b)
and 41A CrPC in the investigation of the impugned
FIR dated 21.12.2011 contained in Annexure No.
1 to this writ petition, lodged in crime No. 797/11,
under Sections 419/420 IPC, Zaidpur, District
Barabanki; and
(iv)
Allow this writ petition with costs.
3. The High Court, after hearing the parties as well as the
State, dismissed the writ petition on 9.1.2012 and passed the
o following order:
E
F
"Heard learned counsel for the petitioner and learned
Additional Government Advocate. Under challenge in the
instant writ petition is FIR relating to Case Crime No. 797
of 2011, under Sections 419 & 420 IPC, police station
Zaidpur, district Barabanki. We have gone through the FIR,
which discloses commission of cognizable offence, as
such, the same cannot be quashed. The writ petition lacks
merit and is accordingly dismissed.
However, the petitioner being lady, it is provided that
if she surrenders and moves application for bail the same
shall be considered and decided by the courts below
expeditiously."
4. The appellant, complaining that she was falsely
G implicated in the case, has approached this Court contending
that the High Court had failed to exercise its certiorari
jurisdiction under Article 226 of the Constitution of India in not
quashing the FIR dated 21.12.2011 and in refusing to grant
anticipatory bail to the appellant. Appellant submitted that the
H
KM. HEMA MISHRA v. STATE OF U.P.
475
[K.S. RADHAKRISHNAN, J.]
High Court ought to have issued a writ of mandamus directing
A
the Superintendent of Police, Barabanki to defer the arrest of
the appellant until the collection of credible evidence sufficient
for filing the charge-sheet, following the amended proviso to
Section 41(1)(b) read with Section 41A Cr.P.C.
5. The Secretary, U.P. Secondary Education Board,
B
Allahabad and the District School Inspector vide their letter
dated 8.12.2011 registered a complaint alleging that the
appellant had committed fraud and forgery in the matter of
preparation of documents of Government Office regarding
selection for the post of Assistant Teacher and, consequently,
C
got appointment as the Assistant Teacher in Janpad InterCollege at Harakh, District Barabanki, with payment of salary
amounting to Rs.1, 10,000/- from the Government exchequer.
On the basis of the FIR, Case Crime No. 797 of 2011 was
registered under Sections 419/420 I PC before the Police
D
Station, Jaizpur, District Barabanki. After having come to know
of the registration of the crime, the appellant filed a
representation on 27 .12.2011 before the Superintendent of
Police, District. Barabanki and the Investigating Officer making
the following prayer:
E
"As such through this application/representation the
applicant prays that keeping in view the willingness of the
applicant for cooperating in investigation and to appear
before the investigating officer upon being called in case
F
crime no. 797/11 u/Ss 419/420 IPC, PS Jaipdur, District
Barabanki, . order for staying the arrest of applicant be
passed so that compliance to the provision 41(1)(B)
Section 41 (A) amended to CrPC 1973 be made."
6. Since the appellant did not get any reply· to the said
G
representation, she invoked the extraordinary jurisdiction of the
High Court under Article 226 of the Constitution of India by filing
·Writ Petition Misc. Bench No. 171 of 2012 which .was
dismissed, as already indicated, on 9.1.2012.
H
A
B'
c
4 76
SUPREME COURT REPORTS
[2014] 1 S.C.R.
7. When the matter came up for hearing before this Court,
it passed an interim order on 1.3.2013, the operative portion
of which reads as under:
"Considering the facts and circumstances of the case, we
are inclined to direct that in the event of arrest of the
petitioner, she shall be released on bail on furnishing
personal bond of Rs.50,000/- (Fifty Thousand only) with two
solvent sureties for the like amount to the satisfaction of
the Trial Court, subject to the condition that she will join
investigation as and when required and shall abide by the
provisions of Section 438(2) of the Code of Criminal
Procedure."
8. Shri Aseem Chandra, learned counsel appearing for the
appellant, submitted that the High Court has committed an error
D in not quashing the FIR, since the registration of the crime was
with ma/a fide intention to harass the appellant and in clear
violation of the fundamental rights guaranteed to the appellant
under Articles 14, 19 and 21 of the Constitution of India. Learned
counsel submitted that the appellant was falsely implicated and
E that the ingredients of the offence under Sections 419/420 IPC
were not prima facie made out for registering the crime.
Learned counsel also pointed out that the High Court has not
properly appreciated the scope of Sections 41(1)(b) and 41A
CrPC, 1973 and that no attempt has been made to follow those
F statutory provisions by the State and its officials.
9. Shri Gaurav Bhatia, learned MG, appearing for the
State, submitted that the investigation was properly conducted
and the crime was registered. Further, it was also pointed out
that the President has also withheld the assent of the Code of
G Criminal Procedure (Uttar Pradesh Amendment) Bill, 2010,
since the provisions of the Bill were found to be in contravention
to Section 438 of the Cr.P.C. and hence the High Court rightly
declined the stay sought for under Article 226 of the Constitution
of India.
H
KM. HEMA MISHRA v. STATE OF U.P.
477
[K.S. RADHAKRISHNAN, J.]
10. Shri Siddharth Luthra, Additional Solicitor General, who
A
appeared on our request, submitted that the High Court can in
only rarest of rare cases grant pre-arrest bail while exercising
powers under Article 226 of the Constitution of India, since the
provision for the grant of anticipatory bail under Section 438
Cr.P.C. was consciously omitted by the State Legislature. The
B
legislative intention is, therefore, not to seek or provide prearrest bail when the FIR discloses a cognizable offence. Shri
Luthra submitted that since there is a conscious withdrawal/
deletion of Section 438 CrPC by the Legislature from the Code
of Criminal Procedure, by Section 9 of the Criminal Procedure c
(Uttar Pradesh) Amendment Act, 1976; the relief which
otherwise the appellant could not have obtained under the Code,
is sought to be obtained indirectly by invoking the writ
jurisdiction of the High Court, which is impermissible in law.
11. Shri Luthra also submitted that since the appellant has
D
no legal right to move for anticipatory bail and that practice is
not an integral part of Article 21 of the Constitution of India, the
contention that the High Court has failed to examine the
charges levelled against the· appellant, was ma/a fide or
violative of Articles 14 and 21 of the Constitution of India, does
E
not arise. Shri Luthra also submitted that the High Court was
not correct in granting further reliefs after having dismissed the
writ petition and that, only in extraordinary cases, the High Court
could exercise its jurisdiction under Article 226 of t~e
Con~titution of India and the case in hand does not fall in that· F
category.
12. I may indicate that the legal issues raised in this case
are no more res integra. All the same, it calls for a relook on
certain aspects which I may deal with during the course of the
G
judgment.
13. I am conscious of the fact that since the provisions
similar to Section 438 Cr.P.C. being absent in the State of Uttar
Pradesh, the High Court is burdened with large number of writ
petitions filed under Article 226 of the Constitution of India
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A seeking pre-arrest bail. Section 438 was added to the Code
of Criminal Procedure in the year 1973, in pursuance to the
recommendation made by the 41 st Law Commission, but in the
State of Uttar Pradesh by Section 9 Criminal Procedure (Uttar
Pradesh) Amendment Act, 1976, Section 438 was specifically
B omitted, the legality of which came up for consideration before
the Constitution Bench of this Court in Kartar Singh v. State of
Punjab (1994) 3 SCC 569 and the Court held that the deletion
of the application of Section 438 in the State of Uttar Pradesh
by Section 9 of the above mentioned Amendment Act does not
c offend either Article 14, Article 19 or Article 21 of the
Constitution of India and the State Legislature is competent to
delete that section, which is one of the matters enumerated in
the concurrent list, and such a deletion is valid under Article
254(2) of the Constitution of India.
D
14. I notice, therefore, as per the Constitution Bench, a
claim for pre-arrest protection is neither a statutory nor a right
guaranteed under Article 14, Article 19 or Article 21 of the
Constitution of India. All the same, in Karatar Singh's case
(supra), this Court in sub-para (17) of Para 368, has also stated
E as follows:
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"368 xxx:
xxx:
xxx:
(17) Though it cannot be said that the High Court has
no jurisdiction to entertain an application for bail under
Article 226 of the Constitution and pass orders either way,
relating to the cases under the Act 1987, that power should
be exercised sparingly, that too only in rare and
appropriate cases in extreme circumstances. But the
judicial discipline and comity of courts require that the High
Courts should refrain from exercising the extraordinary
jurisdiction in such matters;
xxx:
xxx:
15. The High Court of Allahabad has also taken the same
KM. HEMA MISHRA v. STATE OF U.P.
479
[K.S. RADHAKRISHNAN, J.]
view in several judgments. Reference may be made to the
A
judgments in Satya Pal v. State of U.P. (2000 Cri.L.J. 569),
Ajeet Singh v. State of U.P. (2007 Cri.L.J. 170), Lalji Yadav
& Others v. State of U.P. & Another (1998 Cri.L.J. 2366),
Kamlesh Singh v. State of U.P. & Another (1997 Cri.L.J.
2705) and Natho Mal v. State of UP. (1~94 Cri.L.J. 1919).
B
16. We have, therefore, no concept of "anticipatory bail"
as understood in Section 438 of the Code in the State of Uttar ·
.
\
Pradesh. :1n Balchand Jain v. State of M.P. (1976) 4 SCC 572,
this Court observed that "anticipatory bail" is a misnomer. Bail,
C
by itself, cannot be claimed as a matter of right under the Code
of Criminal Procedure, 1973, except for bailable offences
(Section 436 Cr.P.C., 1973). For non-bailable offences,
conditions are prescribed under Sections 437 and 439 Cr.P.C.
The discretion to grant bail in non-bailable offences remains
with the Court and hence, it cannot be claimed as a matter of D
· right, but the aggrieved party can only seek a remedy and it is
on the discretion of the Court to grant it or not. In this connection
reference may also be made to the Judgment of the sevenJudge Bench of the Allahabad High Court in Smt. Amarawati
and Ors. V. State of U.P. (2005) Cri.L.J. 755, wherein the Court,
E
while interpreting the provisions of Sections 41,2(c) and 157(1)
CrPC as well as the scope of Sections 437 and 439, held as
follows:
"47. In view of the above we answer the questions referred
F
to the Full Bench as follows:
(1)
Even if cognizable offence is disclosed, in the FIR
or complaint the arrest of the accused is not a must,
rather the police officer should be guided by the
decision of the Supreme Court in Joginder Kumar G
v. State ofU.P., 1994 Cr LJ 1981 before deciding
whether to make an arrest or not.
(2)
The High Court should ordinarily not direct any
Subordinate Court to decide the bail application the
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[2014] 1 S.C.R.
(3)
same day, as that would be interfering with the
judicial discretion of the Court hearing the bail
application. However, as stated above, when the
bail application is under Section 437 Cr.P.C.
ordinarily the Magistrate should himself decide the
bail application the same day, and if he decides in
a rare and exceptional case not to decide it on the
same day, he must record his reasons in writing.
As regards the application under Section 439
Cr.P.C. it is in the discretion of the learned
Sessions Judge considering the facts and
circumstances whether to decide the bail
application the same day or not, and it is also in
his discretion to grant interim bail the same day
subject to the final decision on the bail application
later.
The decision in Dr. Vinod Narain v. State of UP is
incorrect and is substituted accordingly by this
judgment."
17. This Court in Lal Kamlendra Pratap Singh v. State of
Uttar Pradesh and Others (2009) 4 SCC 437, while affirming
the judgment in Amarawati (supra), held as follows:
"6. Learned counsel for the appellant apprehends that the
appellant will be arrested as there is no provision for
anticipatory bail in the State of U.P. He placed reliance on
a decision of the Allahabad High Court in Amarawati v.
State of UP. in which a seven-Judge Full Bench of the
Allahabad High Court held that the court, if it deems fit in
the facts and circumstances of the case, may grant interim
bail pending final disposal of the bail application. The Full
Bench also observed that arrest is not a must whenever
an FIR of a cognizable offence is lodged. The Full Bench
placed reliance on the decision of this Court in Joginder
Kumar v. State of U.P. (1994) 4 SCC 260.
KM. HEMA. MISHRA v. STATE OF U.P.
481
[K.S. RADHAKRISHNAN, J.]
7. We fully agree with the view of the High Court in
A
Amarawati case and we direct that the said decision be
followed by all courts in U.P. in letter and spirit, particularly
since the provision for anticipatory bail does not exist in
U.P.
B
8. In appropriate cases interim bail should be granted
pending disposal of the final bail application, since arrest
and detention of a person can cause irreparable loss to a
person's reputation, as held by this Court in Joginder
Kumar case. Also, arrest is not a must in all cases of C
cognizable offences, and in deciding whether to arrest or
not the police officer must be guided and act according
to the principles laid down in Joginder Kumar case."
18. Later, a two-Judge Bench of this Court in Som Mittal
v. State of Kamataka (2008) 3 SCC 753, while dealing with
D
an .order of the Karnataka High Court under Section 482 CrPC,
one qt the Judges made some strong observations as well as
recommendations to restore Section 438 in the State of U.P.
Learned Judges constituting the Bench also expressed
contrary views on certain legal issues, hence, the .matter was
E
later placed before a three-Judge Bench, the judgment of whic;h
is reported in same caption (2008) 3 sec 574, wherein this
Court opined
that insofar as the
observations,
recommendations and directions in paras 17 to 39 of the
concurrent judgment is concerned, they did not relate to the
F
subject matter of the criminal appeal and the directions given
were held to be obiter and were set aside.
19. I notice in this case FIR was lodged ·for offences, under
Sections 419 and 420 IPC which carry a sentence of maximum
of three years and seven years respectively with or without fine.
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Benefit of Section 41(a) Cr.P.C. must be available in a given
case, which provides that an investigating officer shall not arrest
the accused of such offences in a routine manrier and the arrest
be made, only after following the restrictions imposed under
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SUPREME COURT REPORTS
[2~14] 1 S.C.R.
A Section 41 (b). The relevant provisions, as it stands now reads
as follow:
. B .
"41. When police may arrest without warrant.- (1) Any
police officer may without an order from a Magistrate and
without a warrant, arrest any person-
(a)
who commits, in the presence of a police officer, a
cognizable offence;
(b)
against whom a reasonable complaint has been
c
made, or credible information has been received,
or a reasonable suspicion exists that he has
committed a cognizable offence punishable with
imprisonment for a term which may be less than
seven years or which may extend to seven years
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whether with or without fine, if the following
conditions are satisfied, namely:-
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(i)
the police officer has reason to believe on
the basis of such complaint, information, or
suspicion that such person has committed
the said offence;
(ii)
the police officer is satisfied that such arrest
is necessary -
(a)
to prevent such person from committing any
further offence; or
(b)
for proper investigation of the offence; or
(c)
to prevent such person from causing the
evidence of the offence to disappear or
tampering with such evidence in any manner,
or
(d)
to prevent such person from making any
inducement, threat or promise to any person
KM. HEMA MISHRA v. STATE OF U.P.
483
[K.S. RADHAKRISHNAN, J.]
acquainted with the facts of the case so as
A
to dissuade him from disclosing such facts
(e)
to the Court or to the police officer; or
as unless such person is arrested, his
presence in the Court whenever required
cannot be ensured,
and the police officer shall record while making such arrest,
his reasons in writing:
B
Provided that a police officer shall, in all cases where the c
arrest of a person is not required under the provisions of
this sub-section; record the reasons in writing for not
making the arrest."
20. Amended provisions make it compulsory for the police
0
to record the reasons for making arrest as well as for not
making an arrest in respect of a cognizable offence for which
the maximum sentence is upto seven years. Reference in this
connection may also be made to Section 41 A inserted vide Act
5 of 2009 w.e.f. 01.11.2010, which reads as follows:
"41A. Notice of appearance before police officer - (1)
The police officer shall, in all cases where the arrest of a
person is not required under the provisions of sub-section
E
(1) of section 41, issue a notice directing the person
against whom a reasonable complaint has been made, or
F
credible information has been received, or a reasonable
suspicion exists that he has committed a cognizable
offence, to appear before him or at such other place as
-may be specified in the notice.
(2) Where such a notice is issued to any person, it shall
G
be the duty of that person to comply with the terms of the
notice.
(3) Where such person complies and continues to comply
with the notice, he shall not be arrested in respect of the . H
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SUPREME COURT REPORTS
[2014] 1 S.C.R.
offence referred to in the notice unless, for reasons to be
recorded, the police officer is of the opinion that he ought
to be arrested.
(4) Where such person, at any time, fails to comply with
the terms of the notice or is unwilling to identify himself,
the police officer may, subject to such orders as may have
been passed by a competent Court in this behalf, arrest
him for the offence mentioned in the notice."
21. Above mentioned provisions make it compulsory for
C the police to issue a notice in all such cases where arrest is
not required to be made under Clause (b) of sub-section (1) of
the amended Section 41. But, all the same, unwillingness of a
person who has not been arrested to identify himself and to
whom a notice has been issued under Section 41A, could be
D a ground for his arrest. Legislation has laid down various
parameters, warranting arrest of a person, which itself is a
check on arbitrary or unwarranted arrest and the right to
personal liberty guaranteed under Article 21 of the Constitution
of India.
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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,
F 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
G have to be left to the wfsdom of the Court exercising powers
under Article 226 of the Constitution of India.
23. I am also faced with the situation that on dismissal of
the writ by the High Court under Article 226 of the Constitution
H of India, while examining the challenge for quashing the FIR or
KM. HEMA MISHRA v. STATE OF U.P.
485
[K.S. RADHAKRISHNAN, J.]
a charge-sheet, whether the High Court could grant further relief
A
against arrest ·for a specific period or till the completion of the
trial. This Court in State of Orissa v. Madan Gopal Rungta
reported in AIR 1952 SC 12, while dealing with the scope of
Article 226 of the Constitution, held as follows :-
B
"Article 226 cannot be used for the purpose of giving
interim relief as the only and final relief on the application.
The directions had been given here only to circumvent the
provisions of Section 80 of the Civil Procedure Code, and
that was not within the scope of Article 226. An interim
C
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
D
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
determiriation it might have made a suitable interim order
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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. The language of Article 226 does not permit
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such an action."
·
24. The language of Article 226 does not permit such an
G
· action and once the Court finds no merits in the challenge, writ
petition will have to be dismissed and the question of granting
further relief after dismissal of the writ, does not arise.
Consequently, once a writ is dismissed, all the interim reliefs
granted would also go.
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A
25. This Court has already passed an interim order on
1.3.2013 granting bail to the appellant on certain conditions.
The said order will continue till the completion of the trial.
However, if the appellant is not co-operating with the
investigation, the State can always move for vacating the order.
B The appeal is accordingly dismissed as above.
A.K. SIKRI, J. 1. I have carefully gone through the judgment
authored by my esteemed brother, Justice Radhakrishnan. I
entirely agree with the conclusions arrived at by my learned
C brother in the said judgment. At the same time, I would also like
to make some observations pertaining to the powers of High
Court under Article 226 of the Constitution of India to grant relief
against pre-arrest (commonly called as anticipatory bail), even
when Section 438,Cr.P.C. authorizing the Court to grant such
a relief is specifically omitted and made inapplicable in so far
D as State of Uttar Pradesh is concerned. I would like to start with
reproducing the following observations in the opinion of my
brother, on this aspect which are contained in paragraph 21 of
the judgment.