IN THE SUPREME COURT OF INDIA
Crl. A. No. 426 of 2015 (Arising out of SLP (Crl.) No. 9603 of 2014)
Decided On: 10.03.2015
Mahima Savin Bansal
Vs.
Savin Bansal and Ors.
Vs.
Savin Bansal and Ors.
Coram:V. Gopala Gowda and C. Nagappan, JJ.
Citation:(2015) 16 SCC228
1. Leave granted. The Appellant is aggrieved by the Order dated 16.10.2014 in Criminal Writ Petition No. 1259 of 2014 passed by the High Court of Uttarakhand at Nainital in exercise of its jurisdiction Under Article 226 of the Constitution of India at the instance of Respondent Nos. 1 to 4 herein, the writ Petitioners before the High Court, who sought for quashing of the FIR lodged by the Appellant herein against them, is under challenge in this appeal urging various legal contentions.
2. Mr. V.K. Gupta, learned senior Counsel appearing on behalf of the Appellant questioned the correctness of the order impugned passed by the High Court and contends that having regard to the prayer made in the writ petition to quash the FIR registered against the private Respondents herein on the complaint lodged by the Appellant herein, the High Court has gravely erred in giving direction to the learned Magistrate directing that in the event of moving bail application by Respondent Nos. 1 to 4 herein, they shall be enlarged on bail on their furnishing personal bonds and one surety each to the satisfaction of the learned Magistrate. The said portion of the order is seriously questioned placing reliance upon the two judgments of this Court, namely, State of Gujarat v. Salimbhai Abdulgaffar Shaikh and Ors. reported in MANU/SC/0676/2003 : (2003) 8 SCC 50, paragraph 16 and Hema Mishra v. State of U.P. and Ors. reported in MANU/SC/0032/2014 : (2014) 4 SCC 453, particularly paragraphs 13, 21 and 22. Mr. Sidharth Luthra, learned senior Counsel for Respondent Nos. 1 to 4 also placed reliance on the very same judgment in justification of the direction given to the learned Magistrate by the High Court in exercise of its power Under Article 226 of the Constitution of India.
3. Learned senior Counsel appearing on behalf of the Appellant further contends that once the writ petition is disposed of by the High Court declining to quash the FIR registered against Respondent Nos. 1 to 4, the High Court in exercise of its power Under Article 226 of the Constitution of India, giving the aforesaid direction to the learned Magistrate, as the same does not permit such action as the High Court finds no merit in the challenge, the writ petition will have to be dismissed and the question of granting further relief after disposal of the writ petition does not arise. Further, he places reliance, in support of the aforesaid submission that consequent upon disposal of the writ petition of Respondent Nos. 1 to 4 herein, the interim relief already granted to them would also go. Therefore, he submits that the impugned order passed by the High Court in exercise of its discretion arbitrarily and unreasonably, the same is liable to be set aside by this Court in exercise of the appellate jurisdiction.
4. On the other hand, Mr. Sidharth Luthra, learned senior Counsel appearing for Respondent Nos. 1 to 4 justifies the impugned order placing strong reliance upon the complaint lodged by the Appellant and making allegations against Respondent Nos. 1 to 4 and further he justifies the direction given by the High Court in the impugned order to the learned Magistrate, as the Respondent Nos. 1 to 4 had sought interim prayer in the application in the writ petition seeking for stay of arrest of Respondent Nos. 1 to 4 herein and they cannot be arrested pursuant to FIR dated 9.09.2014 during the pendency of the writ petition. In fact, such a relief was granted in favour of Respondent Nos. 1 to 4. He further placed reliance upon the judgment of Hema Mishra (supra) at paragraph 13, wherein the Constitution Bench judgment of this Court in the case of Kartar Singh v. State of Punjab reported in MANU/SC/1597/1994 : (1994) 3 SCC 569, relevant paragraph 368(17) was extracted in which the Constitution Bench of this Court has held that "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 1987 Act, that power should be exercised sparingly, that too only in rare and appropriate cases in extreme circumstances." The direction issued to the learned Magistrate to consider the bail application keeping in view the nature of allegations made against Respondent Nos. 1 to 4 and the first Respondent being a civil servant and other Respondents are his parents and brother, such a direction is within the power and sparingly exercised by the High Court, therefore, the High Court is justified in giving the aforesaid direction to the learned Magistrate and he has requested this Court not to interfere with the same. Further, he has invited our attention to the concurring judgment per Dr. A.K. Sikri, J., in particular paragraphs 25, 27, 30 and 36 in support of the order passed by the High Court.
5. We have also heard Mr. U.K. Uniyal, learned Advocate General for the State of Uttarakhand. He submits that after disposal/dismissal of the writ petition by the High Court, it ought not to have given the direction to the learned Magistrate to consider the bail application if such an application is filed by Respondent Nos. 1 to 4, they shall be enlarged on bail by the learned Magistrate on furnishing personal bonds and one surety each to the satisfaction of the learned Magistrate, is not justified by the High Court.
6. Having heard learned senior Counsel on behalf of the parties at length we have very carefully perused the impugned order passed by the High Court, the prayer made in the writ petition praying for issue of a writ, order or direction in the nature of certiorari, calling for the records and quashing the Order dated 22.08.2014 passed by the National Human Rights Commission, New Delhi and quashing FIR dated 9.09.2014 registered before P.S. Rajpur. The High Court has not granted the said relief after hearing the learned Counsel on behalf of Respondent Nos. 1 to 4 and the learned Counsel for the State. Having declined to grant the prayer sought for in the writ petition to quash the FIR registered against Respondent Nos. 1 to 4, the High Court should not have given the direction, as extracted above, to the learned Magistrate as the same would be contrary to the decision of this Court in Hema Mishra (Supra) wherein this Court at paragraph 22 after adverting to the earlier decision of this Court in the case of State of Orissa v. Madan Gopal Rungta MANU/SC/0012/1951 : AIR 1952 SC 12, extracted paragraph 6, which reads thus:
"6....Article 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application as the High Court has purported to do. The directions have been given here only to circumvent the provisions of Section 80 of the Code of Civil Procedure and... that is not within the scope of Article 226. An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. If the Court was of the opinion that there was no other convenient or adequate remedy open to the Petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the Petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution of such suit, issue directions in the nature of temporary injunctions, Under Article 226 of the Constitution....the language of Article 226 does not permit such an action."
It has clearly been held that Article 226 does not permit such an action to grant any interim prayer. Therefore, the learned senior Counsel for the Appellant has rightly placed reliance upon the aforesaid extract of the judgment in Hema Mishra case (supra). Further, as could be seen from paragraph 13 of the aforesaid decision in Hema Mishra case wherein Paragraph 368(17) was extracted from the Constitution Bench judgment in the case of Kartar Singh (supra) wherein the constitutional validity of Section 438 Code of Criminal Procedure was under challenge. In the said case, on the ground of violation of Articles 14, 19, 21 and also Article 254(2) of the Constitution of India, this Court in the aforesaid judgment has laid down the principles that would be necessary to extract. Paragraph 368(17) reads 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 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."
7. As could be seen from the above said paragraph of Kartar Singh case (supra) this Court has made it very clear that High Court has no power to entertain an application for bail Under Article 226 of the Constitution of India. It has made further clear that the power should be exercised sparingly relating to the cases under the 1987 Act, that too only in rare and appropriate cases in extreme circumstances. Upon the said passage from the judgment of Kartar Singh case (supra), learned senior Counsel for Respondent Nos. 1 to 4 has placed strong reliance in justification of the order passed by the High Court in giving direction to the learned Magistrate regarding the bail application that would be filed by Respondent Nos. 1 to 4. The reliance upon the aforesaid passage from the judgment of Katar Singh case has no application to the fact situation for the reason that the High Court has neither given any reason, whatsoever, for exercising its power sparingly and also not mentioned that the case for grant of such direction is in extreme circumstances. In the absence of not assigning such reasons the learned senior Counsel for the Respondent Nos. 1 to 4 cannot place reliance upon the said decision of the Constitution Bench of this Court. Therefore, we have to accept the submission made by learned senior Counsel for the Appellant that exercise of power by the High Court giving mandatory direction to the learned Magistrate to consider the bail application that would be filed by Respondent Nos. 1 to 4 and enlarge them on bail on furnishing personal bonds and one surety each to the satisfaction of the learned Magistrate, the said direction is contrary to the decision of this Court extracted in paragraph 22 in Hema Mishra case (supra) upon which reliance has rightly been placed by learned senior Counsel for the Appellant. In our opinion, the submission made by learned senior Counsel for the Appellant is well founded. We must accept the same. The direction to the learned Magistrate to enlarge the Respondent Nos. 1 to 4 on bail is contrary to the law laid down by this Court, hence, the same is liable to be set aside. Consequently, we allow this appeal and the impugned order passed by the High Court is set aside and we remand the matter to the learned Magistrate to consider the bail application afresh in accordance with law after giving an opportunity of hearing to the parties. We make it clear that whatever the observation which we have made in setting aside the impugned order passed by the High Court, we have not expressed any opinion on the merits or demerits of the allegations made in the complaint.
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