Allahabad High Court
Ram Prapanna Son Of Shri Radhey Shyam And ... vs State Of U.P. Through Home Secretary, ... on 22 February, 2007
Author: Vinod Prasad
Bench: Vinod Prasad
JUDGMENT Vinod Prasad, J.
1. The petitioners and all other similarly situated alleged accused persons of cognizable offences, in all the above and many other such writ petitions have thronged this Court with spate of writ petitions invoking extra ordinary constitutional power of this Court under Article 226 of The Constitution Of India with the prayers to issue a writ of certiorari quashing the impugned orders passed by Magistrates against them, under Section 156(3) Criminal Procedure Code 1973 herein after referred to as the Code, under chapter XII of the code, directing the police to register FIRs of the applicants/aggrieved persons in all these cases and investigate the disclosed cognizable offences. Another prayer which have been made by the petitioners is for a writ of mandamus directing the police not to arrest them in pursuance of the order for registration of FIRs in the disclosed offences. The exercise of filing all these writ petitions have been undertaken by the petitioners because they want to escape themselves from the clutches of law even though they are alleged to have committed cognizable offences. The petitioners, it seems, are not so much bothered about registration part of FIRs against them but what really deters them is the arrest part of investigation, under Section 41 of the Code by the police as soon as the FIRs are registered against them. Section 41 of the Code statutorily empower the police to arrest any body who is accused or suspected of committing cognizable offences without an order from the Magistrate and without warrant.
2. Before vehemently hankered submissions regarding Fundamental Rights etc. harangued by petitioners counsels are dealt, with, a synopsized descriptions of allegations against the petitioners, the factual matrix of the writ petitions, are inked below.
CRIMINAL MISC. WRIT PETITION No. 1225 OF 2007 Ram Prappanna and Ors. v. State Of U.P. and Ors..
3. In this case application under Section 156(3) Cr.P.C. was filed by Raja Bhaiya Pandey in the court of Chief Judicial Magistrate Banda against the petitioners which was registered as Misc. case No. 451/XI/2006. The allegations leveled were that on 20.9.2006 at 7 PM the petitioners approached the door of applicant Raja Bhaiya, armed with fire arm and blunt weapons and abused him filthily and then fired upon him but the shelter of a wall saved his life. Miscreants Jhallu, Lav Kush, Pankaj destroyed his thatched hut. On being approached, the police did not register the FIR of Raja Bhaiya. Hence he filed application under Section 156(3) of the code. On 16.12.2006 Chief Judicial Magistrate, Banda finding cognizable offences being disclosed ordered for registration of FIR and investigation of the offences, which order is now being prayed to be quashed and arrest stayed.
CRIMINAL MISC. WRIT PETITION No. 1261 OF 2007 Mashooq Ahmad and Ors. v. State Of U.P. and Ors.
4. In this case the application was filed by Abdul Mannan on 1.2.2006 appending therein the injury reports of the two injured persons. Civil Judge, (JD)/Judicial Magistrate, Kaushambi finding a prima facie cognizable offence being disclosed order for registration of FIR and investigation of the offences vide it's order dated 21.2.2006. (Annexure No. 2) to the writ petition. The Magistrate had also found that the application of the applicant victim was a cross version of which the FIR of the other side was already registered. The said order of registration of FIR was challenged by way of filing Criminal Revision No. 23 of 2006 before Session's Judge Kaushambi by the Mashuk Ahmad which revision was dismissed by the lower revisional court on 20.1.2007. The allegations leveled were that the accused/petitioners fired upon Abdul Mannan when he was sitting with his family members at his door on 16.12.2005 at about 11.20 AM as a result of which Fahad and Badre Alam, the two sons of applicant sustained injuries on their limbs. The order passed by the Judicial Magistrate as well as by the lower revisional court is under challenge and is prayed to be quashed.
CRIMINAL MISC. WRIT PETITION No. 1216 OF 2007 Daljeet Singh and Ors. v. State Of U.P. and Ors.
5. In this case the application under Section 156(3) was filed by one Narottam before Special Chief Judicial Magistrate being application No. 224 of 2006 with the allegations that Kali Charan, father of applicant was working inside a well of the accused and on 4.11.2006 at 12AM the accused opened the rope from above as a result of which the woods tied with the rope fell on his father causing him serious injuries on head. During the course of treatment father Kali Charan died. The accused even though promised for help in the treatment did not help at all. Along with the application the applicant annexed copy of application to SO, copy of intimation to the police regarding death of the deceased, and copy of post mortem report. Special ACJM, Agra finding a prima facie cognizable offence being disclosed ordered for registration of FIR and investigation on 17.1.2007 which order is prayed to be quashed.
CRIMINAL MISC. WRIT PETITION No. 1283 OF 2007 Jagdish Prasad and Ors. v. State Of U.P. and Ors..
6. The applicant under Section 156(3) Cr.P.C. in this petition was one Sangeeta @ Hem Lata who alleged that she was got married with Pitambar Singh on 21.11.2002 by misrepresentation of his vocation to be a doctor when in fact he was not. Subsequently she was tortured for bringing 2 lakhs of rupees as dowry for opening a nursing home for Pitambar singh. She was subjected to assault also for the said demand. In the intervening period she vacillated like a pendulum between her parental house and in- laws house and many Panchayats took place in between. On 13.6.2005 at 7.30 AM she was assaulted with kicks, fists and blunt objects by her husband and his relatives causing her sever injuries. She was even tried to be burnt. She however saved her life and reached her parental house. Her application to the police authorities yielded no result and therefore she invoked the power of the Magistrate under Section 156(3) Cr.P.C. which was registered as Misc. case No. 114 of 2006. It transpires that her application under Section 156(3) Cr.P.C. was rejected by the Magistrate be a detailed examination of facts as if he was deciding the trial finally by his order dated 12.4.2006 which was challenged in Criminal Revision being criminal revision No. 171 of 2006 which was allowed by Additional Session's Judge, Court No. 7, Etah vide his order dated 6.9.2007 and the matter was remanded back for reconsideration of the application under Section 156(3) of the Code. On reconsideration Additional Chief Judicial Magistrate, Court No. 17 allowed the application an 1 directed the FIR to be registered and offence be investigate 1 by his order dated 30.10.2006. Jagdish Prasad and three others, who are accused of the said crime challenged the order of registration of FIR and investigation before the lower revisional court being criminal revision No. 441 of 2006 which was ultimately rejected by Additional Session's Judge, Court No. 1 Etah on 18.1.2007 confirming the order for registration of crime and investigation of offences passed by the Magistrate. Hence this writ petition for quashing the said order under Section 156(3) Cr.P.C.
CRIMINAL MISC. WRIT PETITION No. 1282 OF 2007 Ajai Mehtar and Anr. v. State of U.P. and Ors.
7. In this writ the order under Section 156(3) has been passed by Metropolitan Magistrate, court No. 3 Kanpur Nagar on the application of one Meena Kumar registered as application No. 743 of 2006. The allegations were that the applicant was cheated to a tune of Rs. 21,13,049/= by the alleged accused petitioners on false assurances of purchasing shares and by falsification and manufacture of false papers. Order of registration and investigation was passed on 4.1.2007 which is under challenge for being quashed.
CRIMINAL MISC. WRIT PETITION No. 1264 OF 2007 Devendra Singh and Ors. v. State of U.P. and Ors.
8. The application Jitendra Singh had filed application under Section 156(3) Cr.P.C. in this case with the allegations that on 14.12.2006 petitioners interred into his house and assaulted him and his wife Neelam as a result of which both of them sustained injuries and got themselves medically examined on 17.12.2006. Metropolitan Magistrate, court No. 7 Kanpur Nagar found cognizable offence being disclosed ordered for registration of FIR and investigation under Section 156(3) of the code,by passing the impugned order dated 11.1.2007 which order is prayed to be quashed.
9. From the facts mentioned above it is perceptibly clear that all the petitioners are alleged to have committed cognizable offence and order for registration of FIRs and investigation have been passed against them which order, they all pray, through a writ of certiorari, to be quashed and interregnum by a writ of Mandamus they may not be arrested in connection with those cognizable offences. Under such facts, at the very out set, the question which arose for determination is as to whether this Court under Article 226 of The Constitution Of India can issue a writ of certiorari thwarting lodging of FIRs of cognizable offences at the behest of alleged malefactors against the statutory provision under Section 154(1) of the Code and the binding precedents of law laid down by the Apex Court in cases of Ch. Bhajan Lal v. State of Haryana 1992 SCC ( Cr.) 462; Janta Dal v. H.S. Chaudhari 1993 SCC(Cr) 36 ; Superintendent of Police C.B.I. and Ors. v. Tapan Kumar Singh 2003 SCC (Cr) 1305; Union Of India v. W.N. Chadha 1993 SCC (Cr) 1171 and many other judgments which have got a binding effect under Article 142 of The Constitution Of India. The other point which sprang up automatically for consideration is as to what is the ambit of power of culprits or alleged accused, at a stage when the FIR against him/them has not even been registered, but has been ordered to be registered by the Magistrates in accordance with statutory provision at a pre- cognizance stage under Chapter XII of the Code, in respect of registration of FIRs against them and follow up investigation.
10. The twin interwoven mooted contentions are taken up in seriatim.
11. The first contention for determination is whether this Court can thwart the lodging of FIRs of cognizable offences at the instance of accused of cognizable offences by issuing a writ of certiorari. The arguments in support which has been advanced by the learned Counsels here in these petitions are not the maiden contentions raised by the accused before me. The same stale arguments which has been advanced in all these petitions regarding violation of Fundamental rights of accused Jeopardizing the right of an individual, the petitioner being the affected persons, all these submissions have been vehemently argued innumerable number of times on many earlier occasions and have been repelled by all the high courts and the Supreme Court and recently in a full bench judgement of this Court Ajeet Singh v. State of Uttar Pradesh 2006 (6) ALJ 110. However the distinction between those cases and the present writ petitions is that in those cases FIRs were already registered but here the FIR has not even seen the light of the day and the petitioners wants to install it's registration by issuance of a writ of certiorari. With this distinction the critical appreciation and legal analysis leads to the conclusion that this Court can not thwart the registration of FIRs of cognizable offences before it is registered. Such an order will be pre-emptive order which can not be passed in a writ jurisdiction. More over the writ of Certiorari is meant for issuance of directions for observance of law and statutory provisions and not for violating it. The discretionary remedy of prerogative writ is for enforcement of Statutory provisions for the protection of Fundamental Rights of the citizens and not for violating the statues and Fundamental Rights of the Victims. In the case of A.P. Med. Society v. Government of Andhra Pradesh (1986) 2 SCC 667 it has been laid down by the Apex court that High Court can not direct any person to disobey a statute in it's writ jurisdiction. To the same effect is the judgement of State of T.N. v. J.T.T.I. (1991) 2 U.J.S.C. 162 (Para 5). In the case of State of Bihar and Anr. v. J.A.C. Saldhana and Ors. 1980 SC 98 it has been held by the Apex Court as follows:
...The High Court in exercise of the extraordinary jurisdiction committed a grave error by making observations on seriously disputed questions of facts taking its clue from affidavits which in such a situation would hardly provide any reliable material. In our opinion the High Court was clearly in error in giving the direction virtually amounting to a mandamus to close the case before the investigation is complete. We say no more.
12. Thus though this Court has the widest power under Article 226 of the Constitution but those powers have to be exercised within the ambit of law and with circumspection. This court should not Issue a writ directing the statutory authority not to follow statutory provision. In the present context any order staving the order of the Magistrate for registration of FIRs of cognizable offences will amount to passing of an order against Section 154(1) Cr.P.C under which section the police is statutorily bound to register every Information of cognizable offence and investigate the offences 'disclosed as has been held by the Supreme Court in the case of State of Haryana v. Ch. Bhajan Lal 1992 SCC ( Cr.) 462. In para 31 to 33 there of the apex court has held as follows:
31. Be it noted that in Section 154(1) of the Code, the legislature in its' collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as fin Section 41(1)(a) or (g) of the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the non-qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, reasonableness' or 'credibility' of the said information is not condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it Jit to employ only the 'word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act XXV of 1861) passed by the Legislative Council of India read that 'every complaint or information' preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act X of 1872) which thereafter read that 'every complaint' preferred to an officer in charge of a police station shall be reduced into writing. The word 'complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word 'information' was used in the Codes of 1882 and 1955 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act 11 of 1974). An overall reading of all the Codes -makes it clear that the condition which is sine qua non for recording a First Information Report is that there must be an information and that information must disclose a cognizable offence.
32. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.
33. In this connection, it may be noted that though a police officer cannot investigate a non-cognizable offence on his own as in the case of cognizable offence, he can investigate a non-cognizable offence under the order of a Magistrate having power to try such non cognizable case or commit the same for trial within the terms under Section 155(2) of the Code but subject to Section 155(3) of the Code. Further, under the newly introduced Sub-section (4) to Section 155, where a case relates to two offences to which at least one is cognizable, the case shall be deemed to be a cognizable case notwithstanding that the other offences are non-cognizable and, therefore, under such circumstances the police officers can investigate such offences with the same powers as he has while investigating a cognizable offence.
13. Summing up the discussion on the point it has been held by the apex court, in para 62 thereof, as follows:
62. The sum and substance of the above deliberation results to a conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned.
14. Let us not forget that in all theses writ petitions the police has not done it's statutory duty to register the FIRs of cognizable offences when it was approached by the aggrieved person or the victim. The Magistrates when approached found that cognizable offences were disclosed in the application under Section 156(3) Cr.P.C. and therefore have directed the police to register the FIR and investigate the cognizable offences. In the case of Superintendent Of Police, C.B.I. and Ors. v. Tapan Kumar Singh 2003 SCC ( Cr.) 1305 it has been held by the Apex Court as follows:
62. The sum and substance of the above deliberation results to a conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds is aforementioned.
15. Dealing with the scope of power of Magistrate under Section 156(3) Cr.P.C. it has been held by the Supreme Court in the judgement of Central Bureau Of Investigation, Through It's S.P. Jaipur v. State of Rajasthan 2001 SCC ( Cr.) 524 as follows:
What is contained in Sub-section (3) of Section 156 is the power to order the investigation referred to in Sub-section (1) because the words "order such an investigation as above-mentioned" in Sub-section (3) are unmistakably clear as referring to the other sub-section. Thus the power is to order an "officer-in-charge of a police station" to conduct investigation.
16. It has further been held in that decision as follows:
We, therefore, reiterate that the magisterial power cannot be stretched under the said subsection beyond directing the officer-in-charge of a police station to conduct the investigation.
17. It has further been held by the Supreme Court in the case of Madhu Bala v. Suresh Kumar and Ors. 1998 SCC( Cr.) 111 as follows:
8. From a combined reading of the above provisions it is abundantly clear that when a written complaint disclosing a cognizable offence is made before a Magistrate, he may take cognizance upon the same under Section 190(1)(a) of the Code and proceed with the same in accordance with provisions of Chapter XV. The other option available to the Magistrate in such a case is to send the complaint to the appropriate Police Station under Section 156(3) for investigation. Once such a direction is given under Sub-section (3) of Section 156 the police is required to investigate into that complaint under Sub-section (1) thereof and on completion of investigation to submit a 'police report' in accordance with Section 173(2) on which a Magistrate may take cognizance under Section ' 190(1)(b) - but not under 190(1)(a). Since a complaint filed before a Magistrate cannot be a police report in view of the definition of complaint referred to earlier and since the investigation of a 'cognizable case' by the police under Section 156(1) has to culminate in a police report the complaint as soon as an order under Section 156(3) is passed thereon - transforms itself to a report given in writing within the meaning of Section 154 of the Code, which is known as the First Information Report (FIR). As under Section 156(1) the police can only investigate a cognizable 'case', it has to formally register a case on that report.
9. ---
10- From the foregoing discussion it is evident that whenever a Magistrate directs an investigation on a "complaint the police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements of the above Rules. It, therefore, passes our comprehension as to how the direction of a Magistrate asking the police to 'register a case' makes an order of investigation under Section 156(3) legally unsustainable. Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the Police to Investigate into a cognizable 'case' and the Rules framed under the Indian Police Act, 1861 it (the police) is duty bound to formally register a case and then investigate into the same. The provisions of the Code, therefore, does not in any way stand in the way of a Magistrate to direct the police to register a case at the police station and then investigate into the same. In our opinion when an order for investigation under Section 156(3) of the Code is to be made the proper direction to the Police would be 'to register a case at the police station treating the complaint as the First Information Report and investigate into the same.
18. Thus the residue of the above law laid down by the Apex court is that if cognizable offences is disclosed through an application under Section 156(3) of the Code then the Magistrate must direct the police to "exercise it's plenary power of investigation" but this has to be ordered at a pre cognizance stage as has been held by the Apex Court in case of Deverapallai Lakshaminnrayana Reddy and Ors. v. V. Narayana Reddy and Ors. 1976 ACC 230 and also in Suresh Chand Jain v. State of Madhya Pradesh JT 2001 (2) SC 81.
19. Now the question is whether such a direction of registration of FIRs and investigation can be set at naught at the instance of the offenders of cognizable offences. In my view this cannot done at all. Any stay order passed by this Court of such a direction by the Magistrates will be against the statutory provision incorporated under Sections 154 to 157 Cr.P.C. It is the for this Court to get the provisions of law observed and not to stifle it down by staying statutory directions when it is in accordance with the statutory provision. In this respect the reasoning of the Apex court in Bahajan Lal's case (Supra) that the High Court can not stifle the legitimate prosecution and it should not quash the proceeding of cases when it discloses some offence can be very aptly applied at a pre cognizance stage under Section 156(3) of the Code to lay down that if some offence of cognizable nature is disclosed then the order for registration of FIR by the Magistrates can not be I quashed. Consequently it has to be held that since the cognizable offence were disclosed through the application under Section 156(3) Cr.P.C. and the Magistrate also found the same and thereafter he directed for registration of FIR and investigation, the said direction can not be quashed through a writ of certiorari and this Court should not also stay such an order by way of interim relief in it's extra ordinary jurisdiction under Article 226 of The Constitution Of India. Reading such a power of quashing and stay under Article 226 of The Constitution will amount to conferment of power to protect persons accused of cognizable offences by this Court under the said Article which is the very ante thesis of the said Article. Further at that stage it is not for this Court to go into the merits of the allegations leveled nor it is proper for it to critically appreciate it to fetch out a defense for the accused of cognizable offences. It is for the police under Section 156(1) and 157(1) to bring out the truth of the matter as crime detection and crime prevention is it's formost and prime duty. Disputed questions of facts can not be gone into by this Court in a writ jurisdiction especially when it is the subject matter of investigation by the police in accordance with statutory right vested on it.
20. More over at that pre cognizance stage the Fundamental Right of individuals has to give way to the Fundamental Rights of the society as has been held by the Apex Court in the case of Joginder Kumar v. State of U.P. and Ors. 1994 SCC (Cr.) 1172 where in it has been held by the Apex Court as follows:
9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first - the criminal or society, the law violator or the law abider of meeting the challenge which Mr. Justice Cardozo so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore (1926) 242 NY 13, 24 : 150 NE 585, 589, justice Cardozo observed:
The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office, There are dangers in any choice. The rule of the Adams case (People v. Adams (1903) 176 NY 351 : 68 NE 636) strikes a balance between opposing interests. We must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass.
10...
11...
12. This Court in Smt. Nandinia Satpathy v. P.L. Dani AIR 1978 SC 1025 at page 1032 quoting Lewis Mayers stated: The paradox has been put sharply by Lewis Mayers:
To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft. The pendulum over the years has swung to the right.
Again in para 21 at page 1033 it was observed:
We have earlier spoken of the conflicting claims requiring reconciliation. Speaking pragmatically, there exists a rivalry between societal interest in effecting crime detection and constitutional rights which accused individuals possess. Emphasis may shift, depending on circumstances, in balancing these interests as has been happening in America. Since Miranda ((1966) 334 US 436) there has been retreat from stress on protection of the accused and gravitation towards society's interest in convicting law-brokers. Currently, the trend in the American jurisdiction according to legal journals, is that 'respect for (constitutional) principles is eroded when they leap their proper bounds to interfere with the legitimate interests of society in enforcement of its laws ....(Couch v. United States (1972) 409 US 322, 336). Our constitutional perspective has, therefore, to be relative and cannot afford to be absolutist, especially when torture technology, crime escalation and other social variables affect the application of principles in producing humane justice.
21. Resultantly the extra ordinary power of this Court under Article 226 of The Constitution can not be allowed to be utilized by offenders of cognizable offences to escape the clutches of law. At this stage this Court should lean in favour of victim and aggrieved person rather than accused and should allow the law to take it's own course.
(emphasis Supplied)
22. From the discussions made above it is concluded that though there is no lack of jurisdiction with this Court to entertain the writ petition against an order under Section 156(3) as there is no lack of power with this Court Under Article 226 of The Constitution Of India but the exercise of the said power being quite a different thing, this Court should and must not quash the order for registration of FIR of cognizable offences against the statutory provision under Section 154 Cr.P.C. and stay operation of such an order by way of interim relief.
23. Resultantly the first contention of the writ petitioners that the order under Section 156(3) Cr.P.C. for registration of FIR and investigation of cognizable offences passed by the Magistrate can be quashed in writ jurisdiction under Article 226 Of The Constitution can not be accepted and is therefore repelled.
24. At this stage another aspect of the argument regarding mala fide and misuse of power of the Magistrate, under Section 156(3) Cr.P.C. by the rival side, should also be dealt with. Needless to say that once cognizable offence is disclosed mala fide allegations levelled by the writ petitioners relegates into the background. That matter has to be investigated by the police and it is for it to decide as to whether offence of cognizable nature or any offence of any other kind has been committed by the accused or not. The question of mala fide therefore is the realm of police and subject matter of investigation. It is not for the writ court to go into that disputed questions of fact because that is no ground to quash the order for registration of FIR of cognizable offence and follow up investigation. The full bench of this Court in the case of Ajeet Singh v. Sate of U.P. 2006 ALJ 110 has gone into great detail on this aspect of the matter in para 39 to 45 taking into consideration judgments of Bhajan Lal (Supra), Sheo Nandan Paswan v. State of Bihar AIR 1987 SC 877; State of Bihar v. J.A.C. Saldhana AIR 1980 SC 326; and some other judgements of the Apex Court and therefore I am not inclined to - go that exercise again albeit I refer para 46 of the said judgement wherein it has concluded the said point by observing as follows:
Thus, it is evident that in-case there is sufficient evidence against the accused, which may establish the charge against him, (even) if the bias/malafide is established, the proceedings cannot be quashed.
25. Keeping in view the above law on the subject the submissions regarding malafide etc., harangued by the petitioners counsels is unmerited and hence rejected and, it seems, that the same was contended only to be repelled.
26. Now coming to the second limb of argument as to what are the rights of the accused at a pre registration of FIR stage it is to be noted that this aspect of the matter is also no longer remains res- integra. For the sake of brevity only two judgements of the apex court are referred here under. The Apex Court in the case of Union of India v. W.N. Chadha 1993 SCC ( Cr.) 1171 has held in Paras 90, 91, 92,94,96 and 98 as follows:
90. Under the scheme of Chap. XII of the Code of Criminal Procedure, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer.
91. In State of Haryana v. Bhajan Lal 1992 Supp (I) SCC 335 at 359 : AIR 1992 SC 604 at p. 616, this Court to which both of us (Ratnavel Pandian and K. Jayachandra Reddy, JJ.) were parties after making reference to the decision of the Privy Council in Emperor v. Khwaja Nazir Ahmad AIR 1945 PC 18 and the decision of this Court in State of Bihar v. J.A.C. Saldanha 1967 (3) SCR 668 has pointed out that the field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the Courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation....
92. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding the said offence is triable by a Magistrate or triable exclusively by the Court of Session, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate....
94. ... Unlike the above provisions which we have referred to above by way of illustration, the provisions relating to the investigation under Chapter XII do not confer any right of prior notice and hearing to the accused and on the other hand they are silent in this respect. 95. It is relevant and significant to note that a police officer, in charge of a police station, or a police officer making an investigation can make and search or cause search to be made for the reasons to be recorded without any warrant from the Court or without giving the prior notice to any one or any opportunity of being heard. The basic objective of such a course is to preserve secrecy in the mode of investigation lest the valuable evidence to be unearthed will be either destroyed or lost. We think it unnecessary to make a detailed examination on this aspect except saying that an accused cannot claim any right of prior notice or opportunity of being heard inclusive of his arrest or search of his residence or Seizure of any property in his possession connected with the crime unless otherwise provided under the law....
...
96. True, there are certain rights conferred on an accused to be enjoyed at certain stages under the Code of Criminal Procedure such as Section 50 where under the person arrested is to be informed of the grounds of his arrest and of his right of bail and under Section 57 dealing with person arrested not to be detained for more than 24 hours and under Section 167 dealing with the procedure if the investigation cannot be completed in 24 hours which are all in conformity with the 'Right to Life' and 'Personal Liberty' enshrined in Article 21 of the Constitution and the valuable safeguards ingrained in Article 22 of the Constitution for the protection of an arrestee or detenu in certain cases. But so long as the investigating agency proceeds with his action or investigation in strict compliance with the statutory provisions relating to arrest or investigation of a criminal case and according to the procedure established by law, no one can make any legitimate grievance to stifle or to impinge upon the proceedings of arrest or detention during investigation as the case may be, in accordance with the provisions of the Code of Criminal Procedure.
97. ...
98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation as lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.
(emphasis Supplied)
27. In another judgement Nagawwa v. Veeranna Shivlingappa Konjalgi AIR 1976 SC 1947 The apex court has held as under:
At any rate, at the stage of Section 202 or Section 204 of the Code of Criminal Procedure as the accused had no locus standi the Magistrate had absolutely no jurisdiction to go into any materials or evidence which may be produced by the accused who could be present only to watch the proceedings and not to participate in them. Indeed if the documents or the evidence produced by the accused is allowed to be taken by the Magistrate then an inquiry under Section 202 would have to be converted into a full-dress trial defeating the very object for which this section has been engrafted. The High Court in quashing the order of the Magistrate completely failed to consider the limited scope of an inquiry under Section 202. Having gone through the order of the Magistrate we do not find any error of law committed by him. The Magistrate has exercised his discretion and has given cogent reasons for his conclusion. Whether the reasons were good or bad, sufficient or insufficient, is not a matter which could have been examined by the High Court in revision. We are constrained to observe that the High Court went out of its way to write a laboured judgment highlighting certain aspects of the case of the accused as appearing from the documents filed by them which they were not entitled to file and which were not entitled in law to be considered.
28. The above two judgments of the apex court clearly lays down the law that before summoning the accused has no right to be heard and certainly he can not say that the FIR of cognizable offences should not be registered against him. Conferring such a right on the accused will amount to putting cart before the investigation horse which is not sanctified by statute as well as by the binding precedents of the Apex Court.
29. Let me now take up the gravest anxiety of the petitioners which obviously is the deterrence of arrest by the police under Section 41 Cr.P.C. as soon the FIR is registered against them. There is no gainsaying that Section 41 of the code does confer power on the police to arrest any body who is accused or suspected of commission of cognizable offence. Does this mean that the arrest is a must in every case of cognizable offence and that is what is to be looked into. When the said aspect is cogitated over then the position which emerges is that possession of power of arrest is one thing but exercise of the said power is quite another. It is puerile to suggest that because the police possesses the power of arrest therefore it has got right to effect arrest in each and every case and of all the accused involved in it. Such a blanket exercise of power is bound to result in misuse of it which ultimately will result in arbitrary exercise and misuse of it. Such a practice is not conducive to our socialist patter of society and to quote the words of the Apex court in this respect "The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law." In the judgement of Joginder Kumar (Supra) the apex court has observed as follows:
12. This Court in Smt. Nandinia Satpathy v. P.L. Dani AIR 1978 SC 1025 at page 1032 quoting Lewis Mayers stated: The paradox has been put sharply by Lewis Mayers:
To strike the balance between the needs of law enforcement on the one hand and the protection of the citizen from oppression and injustice at the hands of the law-enforcement machinery on the other is a perennial problem of statecraft. The pendulum over the years has swung to the right.
30. In the same judgment the Apex Court has laid down guide lines for effecting arrest and the offences in which it is to, be effected. It has been held as follows:
23. In India, Third Report of the National Police Commission at page 32 also suggested:
...An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.
(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines....
24. The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and selfesteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a against a person. It would he prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest.... A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave Station without permission would do....
31. In the case of D.K. Basu v. State of W.B. the Apex Court while dealing with this aspect of the matter has observed as follows:
...Chapter V of Criminal Procedure Code, 1973 deals with the powers of arrest of a person and the safeguards, which are required to be followed by the police to protect the interest of the arrested person. Section 41 Cr. P.C. confers powers on any police officer to arrest a person under the circumstances specified therein without any order or a warrant of arrest from a Magistrate. Section 46 provides the method and manner of arrest. Under this Section no formality is necessary while arresting a person. Under Section 49, the police is not permitted to use more restraint than is necessary to prevent the escape of the person. Section 50 enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest. The police officer is further enjoined to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the event of his arrest for a non- bailable offence. Section 56 contains a mandatory provision requiring the police officer making an arrest without warrant to produce the arrested person before a Magistrate without necessary delay and Section 57 echoes Clause (2) of Article 22 of the Constitution of India. There are some other provisions also like Sections 53, 54 and 167 which are aimed at affording procedural safeguards to a person arrested by the police.
In the same decision the Apex Court has referred the third National Police commission report which had made following suggestions:
19. The Third Report of the National Police Commission in India expressed its deep concern with custodial violence and lock-up deaths. It appreciated the demoralising effect which custodial torture was creating on the society as a whole. It made some very useful suggestions. It suggested:
.... An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:
(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.
(ii) The accused is likely to abscond and evade the processes of law.
(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movement are brought under restraint.
(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again. It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines....
(Under Lines Emphasis Supplied)
32. The above discussions makes it clear that even the National Police Commission has not countenanced the practice of arrest by the police in every case but it had carved out certain exceptions to be followed, in letter and spirit, by the investigating officers through out the length and breath of the country. In my view these directions and recommendations are sufficient guidelines for the police echelons to be observed in each and every case, when it decides to investigate an offence.
33. From what has been discussed above it is clear that arrest is not a must in every case and there must be sufficient reasons for exercising the said power by the police officers.
34. Resultantly, In view of the above I direct the petitioners to approach respective investigating officers through a proper application raising his/their grievances and inform them his/their version of incident as well. The investigating officers are directed to entertain those applications and are further directed to investigate the version of the petitioners as well and only if they find cogent and reliable evidences of cognizable offences being committed by the petitioners and also if they consider it viable to arrest the petitioner/petitioners keeping in view the offences alleged, chances of absconding, status of accused, chances of tampering with evidences and gravity of offences, allegations leveled, then only, he will effect his or their arrest. Meanwhile the Investigating officers are directed to take a bond from the petitioners and will direct them to co-operate with the investigation. It is expected that the investigating officers will investigate the matters fairly without any bias and prejudices and will form an opinion independently.
35. Summing up, since there is no reason to quash the impugned directions of registration of FIRs and follow up investigation passed by respective Magistrates all theses writ petitions are dismissed with the above direction to the investigating officers.