The seminal issue that arises for consideration in this
appeal, by special leave, is whether the High Court while
refusing to exercise inherent powers under Section 482 of the
Code of Criminal Procedure (CrPC) to interfere in an application
for quashment of the investigation, can restrain the
investigating agency not to arrest the accused persons during
the course of investigation.
After referring to the same, Radhakrishnan, J. opined
thus:-
“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
pinpoint 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.”
22. Sikri, J. in his concurring opinion stated that though the
High Courts have very wide powers under Article 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. It has been further observed that such a power has
to be exercised very 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. The powers are, therefore, to be
exercised to prevent miscarriage of justice and to prevent abuse
of process of law by the authorities indiscriminately making
pre-arrest of the accused persons. In entertaining such a
petition under Article 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 Article 226 is not to be
exercised liberally so as to convert it into Section 438 CrPC
proceedings, keeping in mind that when this provision is
specifically omitted in the State of Uttar Pradesh, it cannot be
resorted to as back door entry via Article 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 Article 226 of the Constitution. Keeping in mind that
this power has to be exercised sparingly in those cases where it
is absolutely warranted and justified.
23. We have referred to the authority in Hema Mishra (supra)
as that specifically deals with the case that came from the
State of Uttar Pradesh where Section 438 CrPC has been
deleted. It has concurred with the view expressed in Lal
Kamlendra Pratap Singh (supra). The said decision,
needless to say, has to be read in the context of State of Uttar
Pradesh. We do not intend to elaborate the said principle as
that is not necessary in this case. What needs to be stated
here is that the States where Section 438 CrPC has not been
deleted and kept on the statute book, the High Court should be
well advised that while entertaining petitions under Article 226
of the Constitution or Section 482 CrPC, exercise judicial
restraint. We may hasten to clarify that the Court, if it thinks
fit, regard being had to the parameters of quashing and the
self-restraint imposed by law, has the jurisdiction to quash the
investigation and may pass appropriate interim orders as
thought apposite in law, but it is absolutely inconceivable and
unthinkable to pass an order of the present nature while
declining to interfere or expressing opinion that it is not
appropriate to stay the investigation. This kind of order is
really inappropriate and unseemly. It has no sanction in law.
The Courts should oust and obstruct unscrupulous litigants
from invoking the inherent jurisdiction of the Court on the drop
of a hat to file an application for quashing of launching an FIR
or investigation and then seek relief by an interim order. It is
the obligation of the court to keep such unprincipled and
unethical litigants at bay.
24. It has come to the notice of the Court that in certain
cases, the High Courts, while dismissing the application under
Section 482 CrPC are passing orders that if the
accused-petitioner surrenders before the trial magistrate, he
shall be admitted to bail on such terms and conditions as
deemed fit and appropriate to be imposed by the concerned
Magistrate. Sometimes it is noticed that in a case where
sessions trial is warranted, directions are issued that on
surrendering before the concerned trial judge, the accused
shall be enlarged on bail. Such directions would not commend
acceptance in light of the ratio in Rashmi Rekha Thatoi
(supra), Gurbaksh Singh Sibbia (supra), etc., for they neither
come within the sweep of Article 226 of the Constitution of
India nor Section 482 CrPC nor Section 438 CrPC. This Court
in Ranjit Singh (supra) had observed that the sagacious
saying “a stitch in time saves nine” may be an apposite
reminder and this Court also painfully so stated.
25. Having reminded the same, presently we can only say that
the types of orders like the present one, are totally
unsustainable, for it is contrary to the aforesaid settled
principles and judicial precedents. It is intellectual truancy to
avoid the precedents and issue directions which are not in
consonance with law. It is the duty of a Judge to sustain the
judicial balance and not to think of an order which can cause
trauma to the process of adjudication. It should be borne in
mind that the culture of adjudication is stabilized when
intellectual discipline is maintained and further when such
discipline constantly keeps guard on the mind.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1144 OF 2016
THE STATE OF TELANGANA
VERSUS
HABIB ABDULLAH JEELANI & ORS
Dated:January 06, 2017
Dipak Misra, J.
Citation:(2017) 2 SCC 779
The seminal issue that arises for consideration in this
appeal, by special leave, is whether the High Court while
refusing to exercise inherent powers under Section 482 of the
Code of Criminal Procedure (CrPC) to interfere in an application
for quashment of the investigation, can restrain the
investigating agency not to arrest the accused persons during
the course of investigation.
2. The facts lie in a narrow compass. On the basis of a
report by the informant under Section 154 CrPC, FIR No.
205/2014 dated 26.07.2014 was registered at
Chandrayanagutta Police Station, Hyderabad for the offences
punishable under Sections 147, 148 149 and 307 of the Indian
Penal Code (IPC). Challenging the initiation of criminal action,
the three accused persons, namely, accused Nos. 1, 2 and 5,
(respondent Nos. 1, 2 and 3 herein) invoked inherent
jurisdiction of the High Court in Criminal Petition No. 10012 of
2014 for quashing of the FIR and consequential investigation.
As the impugned order would show, the learned single Judge
referred to the FIR and took note of the submissions of the
learned counsel for the petitioners therein that all the
allegations that had been raised in the FIR were false and they
had been falsely implicated and thereafter expressed his
disinclination to interfere on the ground that it was not
appropriate to stay the investigation of the case. However, as a
submission had been raised that the accused persons were
innocent and there had been allegation of false implication, it
would be appropriate to direct the police not to arrest the
petitioners during the pendency of the investigation and,
accordingly, it was so directed.
3. It is submitted by Mr. Harin P. Raval, learned senior
counsel appearing for the State that the informant had
sustained grievous injuries and was attacked by dangerous
weapons and custodial interrogation of the accused persons is
absolutely essential. According to him, the High Court in
exercise of inherent power under Section 482 CrPC can quash
an FIR on certain well known parameters but while declining to
quash the same, it cannot extend the privilege to the accused
persons which is in the nature of an anticipatory bail. Learned
senior counsel would submit that the nature of the order
passed by the High Court is absolutely unknown to the
exercise of inherent jurisdiction under Section 482 CrPC and,
therefore, it deserves to be axed.
4. Ms. Nilofar Khan, learned counsel appearing for the
respondent Nos. 1 to 3 in support of the order passed by the
High Court submitted that the custodial interrogation is not
necessary in the facts of the case. She would further submit
that the plentitude of power conferred on the High Court under
Section 482 CrPC empowers it to pass such an order and there
being no infirmity in the order, no interference is warranted by
this Court.
5. The controversy compels one to visit the earlier decisions.
In King Emperor v. Khwaja Nazir Ahmad1 while deliberating
on the scope of right conferred on the police under Section 154
CrPC, Privy Council observed:-
“… 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. In India, as has been shown, there is a
statutory right on the part of the police to
investigate the circumstances of an alleged
cognizable crime without requiring any authority
from the judicial authorities, and it would, as their
Lordships think, 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 complementary, 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, always of course subject to the right
of the Court to intervene in an appropriate case
when moved under Section 491 of the Criminal
Procedure Code to give directions in the nature of
habeas corpus. In such a case as the present,
however, the Court's functions begin when a charge
is preferred before it and not until then.”
1 AIR 1945 PC 18Page 5
5
6. Having stated what lies within the domain of the
investigating agency, it is essential to refer to the Constitution
Bench decision in Lalita Kumari v. Government of Uttar
Pradesh and Ors2
. The question that arose for consideration
before the Constitution Bench was whether “a police officer is
bound to register a first information report upon receiving any
information relating to commission of a cognizable offence
under Section 154 CrPC or the police officer has the power to
conduct a ‘preliminary inquiry’ in order to test the veracity of
such information before registering the same”? While
interpreting Section 154 CrPC, the Court addressing itself to
various facets opined that Section 154(1) CrPC admits of no
other construction but the literal construction. Thereafter it
referred to the legislative intent of Section 154 which has been
elaborated in State of Haryana and Ors. v. Bhajan Lal and
Ors.3
and various other authorities. Eventually the larger
Bench opined that reasonableness or credibility of the
information is not a condition precedent for the registration of
a case. Thereafter there was advertence to the concept of
preliminary inquiry. In that context, the Court opined thus:-
2
(2014) 2 SCC 1
3 AIR 1992 SC 604Page 6
6
“103. It means that the number of FIRs not
registered is approximately equivalent to the
number of FIRs actually registered. Keeping in view
the NCRB figures that show that about 60 lakh
cognizable offences were registered in India during
the year 2012, the burking of crime may itself be in
the range of about 60 lakhs every year. Thus, it is
seen that such a large number of FIRs are not
registered every year, which is a clear violation of
the rights of the victims of such a large number of
crimes.
104. Burking of crime leads to dilution of the rule of
law in the short run; and also has a very negative
impact on the rule of law in the long run since
people stop having respect for the rule of law. Thus,
non-registration of such a large number of FIRs
leads to a definite lawlessness in the society.
105. Therefore, reading Section 154 in any other
form would not only be detrimental to the scheme of
the Code but also to the society as a whole. It is
thus seen that this Court has repeatedly held in
various decided cases that registration of FIR is
mandatory if the information given to the police
under Section 154 of the Code discloses the
commission of a cognizable offence.”
7. While dealing with the likelihood of misuse of the
provision, the Court ruled thus:-
“114. It is true that a delicate balance has to be
maintained between the interest of the society and
protecting the liberty of an individual. As already
discussed above, there are already sufficient
safeguards provided in the Code which duly protect
the liberty of an individual in case of registration of
false FIR. At the same time, Section 154 was draftedPage 7
7
keeping in mind the interest of the victim and the
society. Therefore, we are of the cogent view that
mandatory registration of FIRs under Section 154 of
the Code will not be in contravention of Article 21 of
the Constitution as purported by various counsel.”
8. The exceptions that were carved out pertain to medical
negligence cases as has been stated in Jacob Mathew v. State
of Punjab4
. The Court also referred to the authorities in
P. Sirajuddin v. State of Madras5 and CBI v. Tapan Kumar
Singh6
and finally held that what is necessary is only that the
information given to the police must disclose the commission of
a cognizable offence. In such a situation, registration of an FIR
is mandatory. However, if no cognizable offence is made out in
the information given, then the FIR need not be registered
immediately and perhaps the police can conduct a sort of
preliminary verification or inquiry for the limited purpose of
ascertaining as to whether a cognizable offence has been
committed. But, if the information given clearly mentions the
commission of a cognizable offence, there is no other option
but to register an FIR forthwith. Other considerations are not
relevant at the stage of registration of FIR, such as, whether
4
(2005) 6 SCC 1
5
(1970) 1 SCC 595
6
(2003) 6 SCC 175Page 8
8
the information is falsely given, whether the information is
genuine, whether the information is credible, etc. At the stage
of registration of FIR, what is to be seen is merely whether the
information given ex facie discloses the commission of a
cognizable offence.
9. Be it noted, certain directions were issued by the
Constitution Bench, which we think, are apt to be extracted:-
“120.5. The scope of preliminary inquiry is not to
verify the veracity or otherwise of the information
received but only to ascertain whether the
information reveals any cognizable offence.
120.6. As to what type and in which cases
preliminary inquiry is to be conducted will depend
on the facts and circumstances of each case. The
category of cases in which preliminary inquiry may
be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in
initiating criminal prosecution, for example, over 3
months’ delay in reporting the matter without
satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not
exhaustive of all conditions which may warrant
preliminary inquiry.Page 9
9
120.7. While ensuring and protecting the rights of
the accused and the complainant, a preliminary
inquiry should be made time-bound and in any case
it should not exceed 7 days. The fact of such delay
and the causes of it must be reflected in the General
Diary entry.
120.8. Since the General Diary/Station Diary/Daily
Diary is the record of all information received in a
police station, we direct that all information relating
to cognizable offences, whether resulting in
registration of FIR or leading to an inquiry, must be
mandatorily and meticulously reflected in the said
diary and the decision to conduct a preliminary
inquiry must also be reflected, as mentioned above.”
10. We have copiously referred to the aforesaid decision for
the simon pure reason that at the instance of the informant the
FIR was lodged and it was registered which is in accord with
the decision of the Constitution Bench.
11. Once an FIR is registered, the accused persons can
always approach the High Court under Section 482 CrPC or
under Article 226 of the Constitution for quashing of the FIR.
In Bhajan Lal (supra) the two-Judge Bench after referring to
Hazari Lal Gupta v. Rameshwar Prasad7
, Jehan Singh v.
Delhi Administration8
, Amar Nath v. State of Haryana9
,
Kurukshetra University v. State of Haryana10
, State of
7
(1972) 1 SCC 452
8
AIR 1974 SC 1146
9
(1977) 4 SCC 137 : AIR 1977 SC 2185
10 (1977) 4 SCC 451 : AIR 1977 SC 2229Page 10
10
Bihar v. J.A.C. Saldanha11
, State of West Bengal v.
Swapan Kumar Guha12
, Smt. Nagawwa v. Veeranna
Shivalingappa Konjalgi13
, Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre14
, State of Bihar v.
Murad Ali Khan15 and some other authorities that had dealt
with the contours of exercise of inherent powers of the High
Court, thought it appropriate to mention certain category of
cases by way of illustration wherein the extraordinary power
under Article 226 of the Constitution or inherent power under
Section 482 CrPC could be exercised either to prevent abuse of
the process of any court or otherwise to secure the ends of
justice. The Court also observed that it may not be possible to
lay down any precise, clearly defined and sufficiently
channelized and inflexible guidelines or rigid formulae and to
give an exhaustive list of myriad cases wherein such power
should be exercised. The illustrations given by the Court need
to be recapitulated:-
“(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
11 AIR 1980 SC 326
12 AIR 1982 SC 949
13 AIR 1976 SC 1947
14 (1988) 1 SCC 692 : AIR 1988 SC 709
15 (1988) 4 SCC 655 : AIR 1989 SC 1Page 11
11
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 FIR do not disclose a cognizable offence,
justifying an investigation by police officers under
Section 156(1) of the Code except under an order of
a Magistrate within the purview of Section 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 a case against the
accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate
as contemplated under Section 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 in 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 mala fide and/or where the
proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused andPage 12
12
with a view to spite him due to private and personal
grudge.”
It is worthy to note that the Court has clarified that the
said parameters or guidelines are not exhaustive but only
illustrative. Nevertheless, it throws light on the circumstances
and situations where court’s inherent power can be exercised.
12. There can be no dispute over the proposition that
inherent power in a matter of quashment of FIR has to be
exercised sparingly and with caution and when and only when
such exercise is justified by the test specifically laid down in
the provision itself. There is no denial of the fact that the power
under Section 482 CrPC is very wide but it needs no special
emphasis to state that conferment of wide power requires the
court to be more cautious. It casts an onerous and more
diligent duty on the Court.
13. In this regard, it would be seemly to reproduce a passage
from Kurukshetra University (supra) wherein Chandrachud,
J. (as His Lordship then was) opined thus:-
“2. It surprises us in the extreme that the High
Court thought that in the exercise of its inherent
powers under Section 482 of the Code of Criminal
Procedure, it could quash a first information report.Page 13
13
The police had not even commenced investigation
into the complaint filed by the Warden of the
University and no proceeding at all was pending in
any court in pursuance of the FIR. It ought to be
realised that inherent powers do not confer an
arbitrary jurisdiction on the High Court to act
according to whim or caprice. That statutory power
has to be exercised sparingly, with circumspection
and in the rarest of rare cases.”
14. We have referred to the said decisions only to stress upon
the issue, how the exercise of jurisdiction by the High Court in
a proceeding relating to quashment of FIR can be justified. We
repeat even at the cost of repetition that the said power has to
be exercised in a very sparing manner and is not to be used to
choke or smother the prosecution that is legitimate. The
surprise that was expressed almost four decades ago in
Kurukshetra University’s case compels us to observe that we
are also surprised by the impugned order.
15. In the instant case, the High Court has not referred to
allegations made in the FIR or what has come out in the
investigation. It has noted and correctly that the investigation
is in progress and it is not appropriate to stay the investigation
of the case. It has disposed of the application under Section
482 CrPC and while doing that it has directed that the
investigating agency shall not arrest the accused persons. ThisPage 14
14
direction “amounts” to an order under Section 438 CrPC, albeit
without satisfaction of the conditions of the said provision.
This is legally unacceptable.
16. To appreciate the nature of the order passed, it is
necessary to have a survey of the authorities that deal with
grant of anticipatory bail. In Rashmi Rekha Thatoi and Anr.
v. State of Orissa and Ors.16 the High Court while rejecting
the application for anticipatory bail had directed that if the
accused persons surrender, the trial magistrate shall release
them on bail on such terms and conditions as he may deem fit
and proper. Analysing the scope of Section 438 CrPC as
expressed by the Constitution Bench in Gurbaksh Singh
Sibbia v. State of Punjab17 and other decisions, the Court
held thus:-
“33. We have referred to the aforesaid
pronouncements to highlight how the Constitution
Bench in Gurbaksh Singh Sibbia (supra) had
analysed and explained the intrinsic underlying
concepts under Section 438 of the Code, the nature
of orders to be passed while conferring the said
privilege, the conditions that are imposable and the
discretions to be used by the courts. On a reading of
the said authoritative pronouncement and the
principles that have been culled out in Savitri
Agarwal18 there is remotely no indication that the
16
(2012) 5 SCC 690
17
(1980) 2 SCC 565 : AIR 1980 SC 1632
18
(2009) 8 SCC 325Page 15
15
Court of Session or the High Court can pass an
order that on surrendering of the accused before the
Magistrate he shall be released on bail on such
terms and conditions as the learned Magistrate may
deem fit and proper or the superior court would
impose conditions for grant of bail on such
surrender. When the High Court in categorical
terms has expressed the view that it is not inclined
to grant anticipatory bail to the petitioner-accused it
could not have issued such a direction which would
tantamount to conferment of benefit by which the
accused would be in a position to avoid arrest. It is
in clear violation of the language employed in the
statutory provision and in flagrant violation of the
dictum laid down in Gurbaksh Singh Sibbia (supra)
and the principles culled out in Savitri Agarwal
(supra). It is clear as crystal the court cannot issue
a blanket order restraining arrest and it can only
issue an interim order and the interim order must
also conform to the requirement of the section and
suitable conditions should be imposed.”
Elaborating further, the Court held:-
“36. In the case at hand the direction to admit the
accused persons to bail on their surrendering has
no sanction in law and, in fact, creates a dent in the
sacrosanctity of law. It is contradictory in terms and
law does not countenance paradoxes. It gains
respectability and acceptability when its solemnity
is maintained. Passing such kind of orders the
interest of the collective at large and that of the
individual victims is jeopardised. That apart, it
curtails the power of the regular court dealing with
the bail applications.
37. In this regard it is to be borne in mind that a
court of law has to act within the statutory
command and not deviate from it. It is a well-settled
proposition of law what cannot be done directly,
cannot be done indirectly. While exercising aPage 16
16
statutory power a court is bound to act within the
four corners thereof. The statutory exercise of power
stands on a different footing than exercise of power
of judicial review. This has been so stated in Bay
Berry Apartments (P) Ltd. v. Shobha19 and U.P. State
Brassware Corpn. Ltd. v. Uday Narain Pandey20.”
17. In Ranjit Singh v. State of Madhya Pradesh and Ors.21
the High Court had directed that considering the nature of the
allegation and the evidence collected in the case-diary, the
petitioner shall surrender before the competent court and shall
apply for regular bail and the same shall be considered upon
furnishing necessary bail bond. The said order was challenged
before this Court. The two-Judge Bench was constrained to
observe:-
“It is the duty of the superior courts to follow the
command of the statutory provisions and be guided
by the precedents and issue directions which are
permissible in law. We are of the convinced opinion
that the observations made by the learned Single
Judge while dealing with second application under
Section 438 CrPC were not at all warranted under
any circumstance as it was neither in consonance
with the language employed in Section 438 CrPC
nor in accord with the established principles of law
relating to grant of anticipatory bail. We may
reiterate that the said order has been interpreted by
this Court as an order only issuing a direction to
the accused to surrender, but as we find, it has
really created colossal dilemma in the mind of the
learned Additional Sessions Judge. We are pained to
19 (2006) 13 SCC 737
20 (2006) 1 SCC 479
21 (2013) 16 SCC 797Page 17
17
say that passing of these kind of orders has become
quite frequent and the sagacious saying, “a stitch in
time saves nine” may be an apposite reminder now.
We painfully part with the case by saying so.”
18. At this juncture, we are obliged to refer to the decision in
Hema Mishra v. State of Uttar Pradesh and Ors.22 . In the
said judgment, the Court was dealing with the power of the
High Court of Allahabad pertaining to grant of pre-arrest bail in
exercise of extraordinary or inherent jurisdiction and it is
significant, for in the State of Uttar Pradesh Section 438 CrPC
has been deleted by the State Legislature. Be it noted that
constitutional validity of the said deletion was challenged
before the Constitution Bench in Kartar Singh v. State of
Punjab23 wherein it has been held that deletion of the
application of Section 438 CrPC in the State of Uttar Pradesh is
constitutional. The Constitution Bench has ruled held that
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. The larger Bench has further observed
thus:-
“368. (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
22 (2014) 4 SCC 453
23 (1994) 3 SCC 569Page 18
18
pass orders either way, relating to the cases under
the 1987 Act, 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.”
19. The Allahabad High Court has taken similar view in
several judgments, namely, Satya Pal v. State of U.P.24
, Ajeet
Singh v. State of U.P.25
, Lalji Yadav v. State of U.P.26
,
Kamlesh Singh v. State of U.P.27 and Natho Mal v. State of
U.P.28
.
20. In Hema Mishra (supra) the Court referred to the
decision in Amarawati v. State of U.P.29 which has been
affirmed by this Court in Lal Kamlendra Pratap Singh v.
State of U.P.30. In Lal Kamlendra Pratap Singh (supra) it
has been held thus:-
“6. The 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 U.P.
(supra) in which a seven-Judge Full Bench of the
Allahabad High Court held that the court, if it
24 2000 Cri LJ 569 (All)
25 2007 Cri LJ 170 (All)
26 1998 Cri LJ 2366 (All)
27 1997 Cri LJ 2705 (All)
28 1994 Cri LJ 1919 (All)
29 2005 Cri LJ 755 (All)
30 (2009) 4 SCC 437
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
”
21. After referring to the same, Radhakrishnan, J. opined
thus:-
“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
pinpoint 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.”
22. Sikri, J. in his concurring opinion stated that though the
High Courts have very wide powers under Article 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. It has been further observed that such a power has
to be exercised very 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. The powers are, therefore, to be
exercised to prevent miscarriage of justice and to prevent abuse
of process of law by the authorities indiscriminately making
pre-arrest of the accused persons. In entertaining such a
petition under Article 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 Article 226 is not to be
exercised liberally so as to convert it into Section 438 CrPC
proceedings, keeping in mind that when this provision is
specifically omitted in the State of Uttar Pradesh, it cannot be
resorted to as back door entry via Article 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 Article 226 of the Constitution. Keeping in mind that
this power has to be exercised sparingly in those cases where it
is absolutely warranted and justified.
23. We have referred to the authority in Hema Mishra (supra)
as that specifically deals with the case that came from the
State of Uttar Pradesh where Section 438 CrPC has been
deleted. It has concurred with the view expressed in Lal
Kamlendra Pratap Singh (supra). The said decision,
needless to say, has to be read in the context of State of Uttar
Pradesh. We do not intend to elaborate the said principle as
that is not necessary in this case. What needs to be stated
here is that the States where Section 438 CrPC has not been
deleted and kept on the statute book, the High Court should be
well advised that while entertaining petitions under Article 226
of the Constitution or Section 482 CrPC, exercise judicial
restraint. We may hasten to clarify that the Court, if it thinks
fit, regard being had to the parameters of quashing and the
self-restraint imposed by law, has the jurisdiction to quash the
investigation and may pass appropriate interim orders as
thought apposite in law, but it is absolutely inconceivable and
unthinkable to pass an order of the present nature while
declining to interfere or expressing opinion that it is not
appropriate to stay the investigation. This kind of order is
really inappropriate and unseemly. It has no sanction in law.
The Courts should oust and obstruct unscrupulous litigants
from invoking the inherent jurisdiction of the Court on the drop
of a hat to file an application for quashing of launching an FIR
or investigation and then seek relief by an interim order. It is
the obligation of the court to keep such unprincipled and
unethical litigants at bay.
24. It has come to the notice of the Court that in certain
cases, the High Courts, while dismissing the application under
Section 482 CrPC are passing orders that if the
accused-petitioner surrenders before the trial magistrate, he
shall be admitted to bail on such terms and conditions as
deemed fit and appropriate to be imposed by the concerned
Magistrate. Sometimes it is noticed that in a case where
sessions trial is warranted, directions are issued that on
surrendering before the concerned trial judge, the accused
shall be enlarged on bail. Such directions would not commend
acceptance in light of the ratio in Rashmi Rekha Thatoi
(supra), Gurbaksh Singh Sibbia (supra), etc., for they neither
come within the sweep of Article 226 of the Constitution of
India nor Section 482 CrPC nor Section 438 CrPC. This Court
in Ranjit Singh (supra) had observed that the sagacious
saying “a stitch in time saves nine” may be an apposite
reminder and this Court also painfully so stated.
25. Having reminded the same, presently we can only say that
the types of orders like the present one, are totally
unsustainable, for it is contrary to the aforesaid settled
principles and judicial precedents. It is intellectual truancy to
avoid the precedents and issue directions which are not in
consonance with law. It is the duty of a Judge to sustain the
judicial balance and not to think of an order which can cause
trauma to the process of adjudication. It should be borne in
mind that the culture of adjudication is stabilized when
intellectual discipline is maintained and further when such
discipline constantly keeps guard on the mind.
26. In view of the aforesaid premises, we allow the appeal, set
aside the impugned order of the High Court and direct that the
investigation shall proceed in accordance with law. Be it
clarified that we have not expressed anything on any of the
aspects alleged in the First Information Report.
.............................J.
[Dipak Misra]
............................ J.
[Amitava Roy]
New Delhi;
January 06, 2017
Print Page
appeal, by special leave, is whether the High Court while
refusing to exercise inherent powers under Section 482 of the
Code of Criminal Procedure (CrPC) to interfere in an application
for quashment of the investigation, can restrain the
investigating agency not to arrest the accused persons during
the course of investigation.
After referring to the same, Radhakrishnan, J. opined
thus:-
“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
pinpoint 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.”
22. Sikri, J. in his concurring opinion stated that though the
High Courts have very wide powers under Article 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. It has been further observed that such a power has
to be exercised very 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. The powers are, therefore, to be
exercised to prevent miscarriage of justice and to prevent abuse
of process of law by the authorities indiscriminately making
pre-arrest of the accused persons. In entertaining such a
petition under Article 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 Article 226 is not to be
exercised liberally so as to convert it into Section 438 CrPC
proceedings, keeping in mind that when this provision is
specifically omitted in the State of Uttar Pradesh, it cannot be
resorted to as back door entry via Article 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 Article 226 of the Constitution. Keeping in mind that
this power has to be exercised sparingly in those cases where it
is absolutely warranted and justified.
23. We have referred to the authority in Hema Mishra (supra)
as that specifically deals with the case that came from the
State of Uttar Pradesh where Section 438 CrPC has been
deleted. It has concurred with the view expressed in Lal
Kamlendra Pratap Singh (supra). The said decision,
needless to say, has to be read in the context of State of Uttar
Pradesh. We do not intend to elaborate the said principle as
that is not necessary in this case. What needs to be stated
here is that the States where Section 438 CrPC has not been
deleted and kept on the statute book, the High Court should be
well advised that while entertaining petitions under Article 226
of the Constitution or Section 482 CrPC, exercise judicial
restraint. We may hasten to clarify that the Court, if it thinks
fit, regard being had to the parameters of quashing and the
self-restraint imposed by law, has the jurisdiction to quash the
investigation and may pass appropriate interim orders as
thought apposite in law, but it is absolutely inconceivable and
unthinkable to pass an order of the present nature while
declining to interfere or expressing opinion that it is not
appropriate to stay the investigation. This kind of order is
really inappropriate and unseemly. It has no sanction in law.
The Courts should oust and obstruct unscrupulous litigants
from invoking the inherent jurisdiction of the Court on the drop
of a hat to file an application for quashing of launching an FIR
or investigation and then seek relief by an interim order. It is
the obligation of the court to keep such unprincipled and
unethical litigants at bay.
24. It has come to the notice of the Court that in certain
cases, the High Courts, while dismissing the application under
Section 482 CrPC are passing orders that if the
accused-petitioner surrenders before the trial magistrate, he
shall be admitted to bail on such terms and conditions as
deemed fit and appropriate to be imposed by the concerned
Magistrate. Sometimes it is noticed that in a case where
sessions trial is warranted, directions are issued that on
surrendering before the concerned trial judge, the accused
shall be enlarged on bail. Such directions would not commend
acceptance in light of the ratio in Rashmi Rekha Thatoi
(supra), Gurbaksh Singh Sibbia (supra), etc., for they neither
come within the sweep of Article 226 of the Constitution of
India nor Section 482 CrPC nor Section 438 CrPC. This Court
in Ranjit Singh (supra) had observed that the sagacious
saying “a stitch in time saves nine” may be an apposite
reminder and this Court also painfully so stated.
25. Having reminded the same, presently we can only say that
the types of orders like the present one, are totally
unsustainable, for it is contrary to the aforesaid settled
principles and judicial precedents. It is intellectual truancy to
avoid the precedents and issue directions which are not in
consonance with law. It is the duty of a Judge to sustain the
judicial balance and not to think of an order which can cause
trauma to the process of adjudication. It should be borne in
mind that the culture of adjudication is stabilized when
intellectual discipline is maintained and further when such
discipline constantly keeps guard on the mind.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1144 OF 2016
THE STATE OF TELANGANA
VERSUS
HABIB ABDULLAH JEELANI & ORS
Dated:January 06, 2017
Dipak Misra, J.
Citation:(2017) 2 SCC 779
The seminal issue that arises for consideration in this
appeal, by special leave, is whether the High Court while
refusing to exercise inherent powers under Section 482 of the
Code of Criminal Procedure (CrPC) to interfere in an application
for quashment of the investigation, can restrain the
investigating agency not to arrest the accused persons during
the course of investigation.
2. The facts lie in a narrow compass. On the basis of a
report by the informant under Section 154 CrPC, FIR No.
205/2014 dated 26.07.2014 was registered at
Chandrayanagutta Police Station, Hyderabad for the offences
punishable under Sections 147, 148 149 and 307 of the Indian
Penal Code (IPC). Challenging the initiation of criminal action,
the three accused persons, namely, accused Nos. 1, 2 and 5,
(respondent Nos. 1, 2 and 3 herein) invoked inherent
jurisdiction of the High Court in Criminal Petition No. 10012 of
2014 for quashing of the FIR and consequential investigation.
As the impugned order would show, the learned single Judge
referred to the FIR and took note of the submissions of the
learned counsel for the petitioners therein that all the
allegations that had been raised in the FIR were false and they
had been falsely implicated and thereafter expressed his
disinclination to interfere on the ground that it was not
appropriate to stay the investigation of the case. However, as a
submission had been raised that the accused persons were
innocent and there had been allegation of false implication, it
would be appropriate to direct the police not to arrest the
petitioners during the pendency of the investigation and,
accordingly, it was so directed.
3. It is submitted by Mr. Harin P. Raval, learned senior
counsel appearing for the State that the informant had
sustained grievous injuries and was attacked by dangerous
weapons and custodial interrogation of the accused persons is
absolutely essential. According to him, the High Court in
exercise of inherent power under Section 482 CrPC can quash
an FIR on certain well known parameters but while declining to
quash the same, it cannot extend the privilege to the accused
persons which is in the nature of an anticipatory bail. Learned
senior counsel would submit that the nature of the order
passed by the High Court is absolutely unknown to the
exercise of inherent jurisdiction under Section 482 CrPC and,
therefore, it deserves to be axed.
4. Ms. Nilofar Khan, learned counsel appearing for the
respondent Nos. 1 to 3 in support of the order passed by the
High Court submitted that the custodial interrogation is not
necessary in the facts of the case. She would further submit
that the plentitude of power conferred on the High Court under
Section 482 CrPC empowers it to pass such an order and there
being no infirmity in the order, no interference is warranted by
this Court.
5. The controversy compels one to visit the earlier decisions.
In King Emperor v. Khwaja Nazir Ahmad1 while deliberating
on the scope of right conferred on the police under Section 154
CrPC, Privy Council observed:-
“… 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. In India, as has been shown, there is a
statutory right on the part of the police to
investigate the circumstances of an alleged
cognizable crime without requiring any authority
from the judicial authorities, and it would, as their
Lordships think, 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 complementary, 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, always of course subject to the right
of the Court to intervene in an appropriate case
when moved under Section 491 of the Criminal
Procedure Code to give directions in the nature of
habeas corpus. In such a case as the present,
however, the Court's functions begin when a charge
is preferred before it and not until then.”
1 AIR 1945 PC 18Page 5
5
6. Having stated what lies within the domain of the
investigating agency, it is essential to refer to the Constitution
Bench decision in Lalita Kumari v. Government of Uttar
Pradesh and Ors2
. The question that arose for consideration
before the Constitution Bench was whether “a police officer is
bound to register a first information report upon receiving any
information relating to commission of a cognizable offence
under Section 154 CrPC or the police officer has the power to
conduct a ‘preliminary inquiry’ in order to test the veracity of
such information before registering the same”? While
interpreting Section 154 CrPC, the Court addressing itself to
various facets opined that Section 154(1) CrPC admits of no
other construction but the literal construction. Thereafter it
referred to the legislative intent of Section 154 which has been
elaborated in State of Haryana and Ors. v. Bhajan Lal and
Ors.3
and various other authorities. Eventually the larger
Bench opined that reasonableness or credibility of the
information is not a condition precedent for the registration of
a case. Thereafter there was advertence to the concept of
preliminary inquiry. In that context, the Court opined thus:-
2
(2014) 2 SCC 1
3 AIR 1992 SC 604Page 6
6
“103. It means that the number of FIRs not
registered is approximately equivalent to the
number of FIRs actually registered. Keeping in view
the NCRB figures that show that about 60 lakh
cognizable offences were registered in India during
the year 2012, the burking of crime may itself be in
the range of about 60 lakhs every year. Thus, it is
seen that such a large number of FIRs are not
registered every year, which is a clear violation of
the rights of the victims of such a large number of
crimes.
104. Burking of crime leads to dilution of the rule of
law in the short run; and also has a very negative
impact on the rule of law in the long run since
people stop having respect for the rule of law. Thus,
non-registration of such a large number of FIRs
leads to a definite lawlessness in the society.
105. Therefore, reading Section 154 in any other
form would not only be detrimental to the scheme of
the Code but also to the society as a whole. It is
thus seen that this Court has repeatedly held in
various decided cases that registration of FIR is
mandatory if the information given to the police
under Section 154 of the Code discloses the
commission of a cognizable offence.”
7. While dealing with the likelihood of misuse of the
provision, the Court ruled thus:-
“114. It is true that a delicate balance has to be
maintained between the interest of the society and
protecting the liberty of an individual. As already
discussed above, there are already sufficient
safeguards provided in the Code which duly protect
the liberty of an individual in case of registration of
false FIR. At the same time, Section 154 was draftedPage 7
7
keeping in mind the interest of the victim and the
society. Therefore, we are of the cogent view that
mandatory registration of FIRs under Section 154 of
the Code will not be in contravention of Article 21 of
the Constitution as purported by various counsel.”
8. The exceptions that were carved out pertain to medical
negligence cases as has been stated in Jacob Mathew v. State
of Punjab4
. The Court also referred to the authorities in
P. Sirajuddin v. State of Madras5 and CBI v. Tapan Kumar
Singh6
and finally held that what is necessary is only that the
information given to the police must disclose the commission of
a cognizable offence. In such a situation, registration of an FIR
is mandatory. However, if no cognizable offence is made out in
the information given, then the FIR need not be registered
immediately and perhaps the police can conduct a sort of
preliminary verification or inquiry for the limited purpose of
ascertaining as to whether a cognizable offence has been
committed. But, if the information given clearly mentions the
commission of a cognizable offence, there is no other option
but to register an FIR forthwith. Other considerations are not
relevant at the stage of registration of FIR, such as, whether
4
(2005) 6 SCC 1
5
(1970) 1 SCC 595
6
(2003) 6 SCC 175Page 8
8
the information is falsely given, whether the information is
genuine, whether the information is credible, etc. At the stage
of registration of FIR, what is to be seen is merely whether the
information given ex facie discloses the commission of a
cognizable offence.
9. Be it noted, certain directions were issued by the
Constitution Bench, which we think, are apt to be extracted:-
“120.5. The scope of preliminary inquiry is not to
verify the veracity or otherwise of the information
received but only to ascertain whether the
information reveals any cognizable offence.
120.6. As to what type and in which cases
preliminary inquiry is to be conducted will depend
on the facts and circumstances of each case. The
category of cases in which preliminary inquiry may
be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in
initiating criminal prosecution, for example, over 3
months’ delay in reporting the matter without
satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not
exhaustive of all conditions which may warrant
preliminary inquiry.Page 9
9
120.7. While ensuring and protecting the rights of
the accused and the complainant, a preliminary
inquiry should be made time-bound and in any case
it should not exceed 7 days. The fact of such delay
and the causes of it must be reflected in the General
Diary entry.
120.8. Since the General Diary/Station Diary/Daily
Diary is the record of all information received in a
police station, we direct that all information relating
to cognizable offences, whether resulting in
registration of FIR or leading to an inquiry, must be
mandatorily and meticulously reflected in the said
diary and the decision to conduct a preliminary
inquiry must also be reflected, as mentioned above.”
10. We have copiously referred to the aforesaid decision for
the simon pure reason that at the instance of the informant the
FIR was lodged and it was registered which is in accord with
the decision of the Constitution Bench.
11. Once an FIR is registered, the accused persons can
always approach the High Court under Section 482 CrPC or
under Article 226 of the Constitution for quashing of the FIR.
In Bhajan Lal (supra) the two-Judge Bench after referring to
Hazari Lal Gupta v. Rameshwar Prasad7
, Jehan Singh v.
Delhi Administration8
, Amar Nath v. State of Haryana9
,
Kurukshetra University v. State of Haryana10
, State of
7
(1972) 1 SCC 452
8
AIR 1974 SC 1146
9
(1977) 4 SCC 137 : AIR 1977 SC 2185
10 (1977) 4 SCC 451 : AIR 1977 SC 2229Page 10
10
Bihar v. J.A.C. Saldanha11
, State of West Bengal v.
Swapan Kumar Guha12
, Smt. Nagawwa v. Veeranna
Shivalingappa Konjalgi13
, Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre14
, State of Bihar v.
Murad Ali Khan15 and some other authorities that had dealt
with the contours of exercise of inherent powers of the High
Court, thought it appropriate to mention certain category of
cases by way of illustration wherein the extraordinary power
under Article 226 of the Constitution or inherent power under
Section 482 CrPC could be exercised either to prevent abuse of
the process of any court or otherwise to secure the ends of
justice. The Court also observed that it may not be possible to
lay down any precise, clearly defined and sufficiently
channelized and inflexible guidelines or rigid formulae and to
give an exhaustive list of myriad cases wherein such power
should be exercised. The illustrations given by the Court need
to be recapitulated:-
“(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
11 AIR 1980 SC 326
12 AIR 1982 SC 949
13 AIR 1976 SC 1947
14 (1988) 1 SCC 692 : AIR 1988 SC 709
15 (1988) 4 SCC 655 : AIR 1989 SC 1Page 11
11
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 FIR do not disclose a cognizable offence,
justifying an investigation by police officers under
Section 156(1) of the Code except under an order of
a Magistrate within the purview of Section 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 a case against the
accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate
as contemplated under Section 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 in 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 mala fide and/or where the
proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused andPage 12
12
with a view to spite him due to private and personal
grudge.”
It is worthy to note that the Court has clarified that the
said parameters or guidelines are not exhaustive but only
illustrative. Nevertheless, it throws light on the circumstances
and situations where court’s inherent power can be exercised.
12. There can be no dispute over the proposition that
inherent power in a matter of quashment of FIR has to be
exercised sparingly and with caution and when and only when
such exercise is justified by the test specifically laid down in
the provision itself. There is no denial of the fact that the power
under Section 482 CrPC is very wide but it needs no special
emphasis to state that conferment of wide power requires the
court to be more cautious. It casts an onerous and more
diligent duty on the Court.
13. In this regard, it would be seemly to reproduce a passage
from Kurukshetra University (supra) wherein Chandrachud,
J. (as His Lordship then was) opined thus:-
“2. It surprises us in the extreme that the High
Court thought that in the exercise of its inherent
powers under Section 482 of the Code of Criminal
Procedure, it could quash a first information report.Page 13
13
The police had not even commenced investigation
into the complaint filed by the Warden of the
University and no proceeding at all was pending in
any court in pursuance of the FIR. It ought to be
realised that inherent powers do not confer an
arbitrary jurisdiction on the High Court to act
according to whim or caprice. That statutory power
has to be exercised sparingly, with circumspection
and in the rarest of rare cases.”
14. We have referred to the said decisions only to stress upon
the issue, how the exercise of jurisdiction by the High Court in
a proceeding relating to quashment of FIR can be justified. We
repeat even at the cost of repetition that the said power has to
be exercised in a very sparing manner and is not to be used to
choke or smother the prosecution that is legitimate. The
surprise that was expressed almost four decades ago in
Kurukshetra University’s case compels us to observe that we
are also surprised by the impugned order.
15. In the instant case, the High Court has not referred to
allegations made in the FIR or what has come out in the
investigation. It has noted and correctly that the investigation
is in progress and it is not appropriate to stay the investigation
of the case. It has disposed of the application under Section
482 CrPC and while doing that it has directed that the
investigating agency shall not arrest the accused persons. ThisPage 14
14
direction “amounts” to an order under Section 438 CrPC, albeit
without satisfaction of the conditions of the said provision.
This is legally unacceptable.
16. To appreciate the nature of the order passed, it is
necessary to have a survey of the authorities that deal with
grant of anticipatory bail. In Rashmi Rekha Thatoi and Anr.
v. State of Orissa and Ors.16 the High Court while rejecting
the application for anticipatory bail had directed that if the
accused persons surrender, the trial magistrate shall release
them on bail on such terms and conditions as he may deem fit
and proper. Analysing the scope of Section 438 CrPC as
expressed by the Constitution Bench in Gurbaksh Singh
Sibbia v. State of Punjab17 and other decisions, the Court
held thus:-
“33. We have referred to the aforesaid
pronouncements to highlight how the Constitution
Bench in Gurbaksh Singh Sibbia (supra) had
analysed and explained the intrinsic underlying
concepts under Section 438 of the Code, the nature
of orders to be passed while conferring the said
privilege, the conditions that are imposable and the
discretions to be used by the courts. On a reading of
the said authoritative pronouncement and the
principles that have been culled out in Savitri
Agarwal18 there is remotely no indication that the
16
(2012) 5 SCC 690
17
(1980) 2 SCC 565 : AIR 1980 SC 1632
18
(2009) 8 SCC 325Page 15
15
Court of Session or the High Court can pass an
order that on surrendering of the accused before the
Magistrate he shall be released on bail on such
terms and conditions as the learned Magistrate may
deem fit and proper or the superior court would
impose conditions for grant of bail on such
surrender. When the High Court in categorical
terms has expressed the view that it is not inclined
to grant anticipatory bail to the petitioner-accused it
could not have issued such a direction which would
tantamount to conferment of benefit by which the
accused would be in a position to avoid arrest. It is
in clear violation of the language employed in the
statutory provision and in flagrant violation of the
dictum laid down in Gurbaksh Singh Sibbia (supra)
and the principles culled out in Savitri Agarwal
(supra). It is clear as crystal the court cannot issue
a blanket order restraining arrest and it can only
issue an interim order and the interim order must
also conform to the requirement of the section and
suitable conditions should be imposed.”
Elaborating further, the Court held:-
“36. In the case at hand the direction to admit the
accused persons to bail on their surrendering has
no sanction in law and, in fact, creates a dent in the
sacrosanctity of law. It is contradictory in terms and
law does not countenance paradoxes. It gains
respectability and acceptability when its solemnity
is maintained. Passing such kind of orders the
interest of the collective at large and that of the
individual victims is jeopardised. That apart, it
curtails the power of the regular court dealing with
the bail applications.
37. In this regard it is to be borne in mind that a
court of law has to act within the statutory
command and not deviate from it. It is a well-settled
proposition of law what cannot be done directly,
cannot be done indirectly. While exercising aPage 16
16
statutory power a court is bound to act within the
four corners thereof. The statutory exercise of power
stands on a different footing than exercise of power
of judicial review. This has been so stated in Bay
Berry Apartments (P) Ltd. v. Shobha19 and U.P. State
Brassware Corpn. Ltd. v. Uday Narain Pandey20.”
17. In Ranjit Singh v. State of Madhya Pradesh and Ors.21
the High Court had directed that considering the nature of the
allegation and the evidence collected in the case-diary, the
petitioner shall surrender before the competent court and shall
apply for regular bail and the same shall be considered upon
furnishing necessary bail bond. The said order was challenged
before this Court. The two-Judge Bench was constrained to
observe:-
“It is the duty of the superior courts to follow the
command of the statutory provisions and be guided
by the precedents and issue directions which are
permissible in law. We are of the convinced opinion
that the observations made by the learned Single
Judge while dealing with second application under
Section 438 CrPC were not at all warranted under
any circumstance as it was neither in consonance
with the language employed in Section 438 CrPC
nor in accord with the established principles of law
relating to grant of anticipatory bail. We may
reiterate that the said order has been interpreted by
this Court as an order only issuing a direction to
the accused to surrender, but as we find, it has
really created colossal dilemma in the mind of the
learned Additional Sessions Judge. We are pained to
19 (2006) 13 SCC 737
20 (2006) 1 SCC 479
21 (2013) 16 SCC 797Page 17
17
say that passing of these kind of orders has become
quite frequent and the sagacious saying, “a stitch in
time saves nine” may be an apposite reminder now.
We painfully part with the case by saying so.”
18. At this juncture, we are obliged to refer to the decision in
Hema Mishra v. State of Uttar Pradesh and Ors.22 . In the
said judgment, the Court was dealing with the power of the
High Court of Allahabad pertaining to grant of pre-arrest bail in
exercise of extraordinary or inherent jurisdiction and it is
significant, for in the State of Uttar Pradesh Section 438 CrPC
has been deleted by the State Legislature. Be it noted that
constitutional validity of the said deletion was challenged
before the Constitution Bench in Kartar Singh v. State of
Punjab23 wherein it has been held that deletion of the
application of Section 438 CrPC in the State of Uttar Pradesh is
constitutional. The Constitution Bench has ruled held that
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. The larger Bench has further observed
thus:-
“368. (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
22 (2014) 4 SCC 453
23 (1994) 3 SCC 569Page 18
18
pass orders either way, relating to the cases under
the 1987 Act, 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.”
19. The Allahabad High Court has taken similar view in
several judgments, namely, Satya Pal v. State of U.P.24
, Ajeet
Singh v. State of U.P.25
, Lalji Yadav v. State of U.P.26
,
Kamlesh Singh v. State of U.P.27 and Natho Mal v. State of
U.P.28
.
20. In Hema Mishra (supra) the Court referred to the
decision in Amarawati v. State of U.P.29 which has been
affirmed by this Court in Lal Kamlendra Pratap Singh v.
State of U.P.30. In Lal Kamlendra Pratap Singh (supra) it
has been held thus:-
“6. The 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 U.P.
(supra) in which a seven-Judge Full Bench of the
Allahabad High Court held that the court, if it
24 2000 Cri LJ 569 (All)
25 2007 Cri LJ 170 (All)
26 1998 Cri LJ 2366 (All)
27 1997 Cri LJ 2705 (All)
28 1994 Cri LJ 1919 (All)
29 2005 Cri LJ 755 (All)
30 (2009) 4 SCC 437
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
”
21. After referring to the same, Radhakrishnan, J. opined
thus:-
“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
pinpoint 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.”
22. Sikri, J. in his concurring opinion stated that though the
High Courts have very wide powers under Article 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. It has been further observed that such a power has
to be exercised very 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. The powers are, therefore, to be
exercised to prevent miscarriage of justice and to prevent abuse
of process of law by the authorities indiscriminately making
pre-arrest of the accused persons. In entertaining such a
petition under Article 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 Article 226 is not to be
exercised liberally so as to convert it into Section 438 CrPC
proceedings, keeping in mind that when this provision is
specifically omitted in the State of Uttar Pradesh, it cannot be
resorted to as back door entry via Article 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 Article 226 of the Constitution. Keeping in mind that
this power has to be exercised sparingly in those cases where it
is absolutely warranted and justified.
23. We have referred to the authority in Hema Mishra (supra)
as that specifically deals with the case that came from the
State of Uttar Pradesh where Section 438 CrPC has been
deleted. It has concurred with the view expressed in Lal
Kamlendra Pratap Singh (supra). The said decision,
needless to say, has to be read in the context of State of Uttar
Pradesh. We do not intend to elaborate the said principle as
that is not necessary in this case. What needs to be stated
here is that the States where Section 438 CrPC has not been
deleted and kept on the statute book, the High Court should be
well advised that while entertaining petitions under Article 226
of the Constitution or Section 482 CrPC, exercise judicial
restraint. We may hasten to clarify that the Court, if it thinks
fit, regard being had to the parameters of quashing and the
self-restraint imposed by law, has the jurisdiction to quash the
investigation and may pass appropriate interim orders as
thought apposite in law, but it is absolutely inconceivable and
unthinkable to pass an order of the present nature while
declining to interfere or expressing opinion that it is not
appropriate to stay the investigation. This kind of order is
really inappropriate and unseemly. It has no sanction in law.
The Courts should oust and obstruct unscrupulous litigants
from invoking the inherent jurisdiction of the Court on the drop
of a hat to file an application for quashing of launching an FIR
or investigation and then seek relief by an interim order. It is
the obligation of the court to keep such unprincipled and
unethical litigants at bay.
24. It has come to the notice of the Court that in certain
cases, the High Courts, while dismissing the application under
Section 482 CrPC are passing orders that if the
accused-petitioner surrenders before the trial magistrate, he
shall be admitted to bail on such terms and conditions as
deemed fit and appropriate to be imposed by the concerned
Magistrate. Sometimes it is noticed that in a case where
sessions trial is warranted, directions are issued that on
surrendering before the concerned trial judge, the accused
shall be enlarged on bail. Such directions would not commend
acceptance in light of the ratio in Rashmi Rekha Thatoi
(supra), Gurbaksh Singh Sibbia (supra), etc., for they neither
come within the sweep of Article 226 of the Constitution of
India nor Section 482 CrPC nor Section 438 CrPC. This Court
in Ranjit Singh (supra) had observed that the sagacious
saying “a stitch in time saves nine” may be an apposite
reminder and this Court also painfully so stated.
25. Having reminded the same, presently we can only say that
the types of orders like the present one, are totally
unsustainable, for it is contrary to the aforesaid settled
principles and judicial precedents. It is intellectual truancy to
avoid the precedents and issue directions which are not in
consonance with law. It is the duty of a Judge to sustain the
judicial balance and not to think of an order which can cause
trauma to the process of adjudication. It should be borne in
mind that the culture of adjudication is stabilized when
intellectual discipline is maintained and further when such
discipline constantly keeps guard on the mind.
26. In view of the aforesaid premises, we allow the appeal, set
aside the impugned order of the High Court and direct that the
investigation shall proceed in accordance with law. Be it
clarified that we have not expressed anything on any of the
aspects alleged in the First Information Report.
.............................J.
[Dipak Misra]
............................ J.
[Amitava Roy]
New Delhi;
January 06, 2017
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