JUDGMENT
R.K. Mahajan, J.
1. Shri Kamlesh Singh moved a writ petition praying that the Hon’ble High Court may be pleased to issue a writ in the nature of certiorari quashing the first information report dated 15-12-1995 which gave rise to crime No. 621-A, under Sections 302, 34, 120-B, IPC, P.S. George Town, District Allahabad. The prayer is further made that writ of mandamus be issued directing the respondents not to arrest the petitioner in the aforesaid crime and also to pass any suitable direction or order as the Court may deem fit and proper.
2. Earlier to this writ petition another writ petition was filed which was numbered as Writ Petition No. 625 of 1996 and that was not pressed. Shri G.N. Verma appearing for the petitioner made a statement that he does not want to press this writ petition. He further made a statement that the fact that writ petition No. 626 of 1996 has been withdrawn as not pressed, is not mentioned in the present writ petition.
3. It is a triple murder case. We do not want to comment on the merits and demerits of the case nor we do not want to comment on the allegations made in the application for stay of arrest by the petitioner as they are to be finally evaluated in trial. We would have allowed the permission to withdraw the writ petition but recently Supreme Court happened to observe in State of Maharashtra v. Ishwar Piraji Kalpatri, (1996) 1 SCC 542: (AIR 1996 SC 722).
It appears strange that when a petition had been filed in the High Court, judgment obtained and the losing party comes to the Superior Court, then in order to avoid an unfavourable order, a request should be made for the withdrawal of the original proceeding in an effort to avoid an adverse decision from the Superior Court with a view to reagitate the same contentions once again before the subordinate Court. A party to the proceedings cannot be allowed at this stage at least to take a chance and if he gets the impression that he will not succeed to seek permissioon to withdraw the original proceeding obviously with a view to reagitate the same contentions, which have been or may be adjudicated upon by a higher Court, before the subordinate Court though in different proceedings. A practice like this is liable to be strongly deprecated. This will be opposed to judicial discipline and may lead to unhealthy practices which will not be conducive. On facts of the case there is no justification for permitting the respondent to withdraw his writ petition.
4. We do not want to comment any further on this aspect and it is for the petitioner for the reasons best known to him that he wants to withdraw the petition, which we in the circumstances do not allow.
5. We would like to make comments and render findings on the legal aspect of the maintainability of such type of petitions i.e. stay of arrest, quashing of the F.I.R. etc. We would like to answer in the light of Hon’ble Supreme Court’s judgment only that how far such type of petition is maintainable.
6. As soon as crime is suspected or committed a report is lodged under Section 154, Cr. P.C. with the Police Station which has a territorial jurisdiction to investigate. The police has been given power to investigate the offence. Section 154, Cr. P.C. refers information regarding cognizable cases. After receiving of the information orally or in writing and after reducing in a particular register, if the police officer under Section 157, Cr. P.C. has a reason to suspect the commission of offence for which he is empowered under Section 156, Cr. P.C. to investigate. He shall forthwith send a report of the same to a Magistrate in order to take cognizance of such offence upon such police report and shall proceed himself or shall depute one of his subordinate officers not below of such rank as the State Government may, by general or special order, prescribed in this behalf, to proceed to the spot and to investigate the facts and circumstances of the case, and, if necessary to take measures for the discovery and arrest of the offender. Lodging of first information report under Section 154, Cr. P.C. puts the police machinery in motion to collect the facts. The legislature has only laid down the criteria that if upon information there is asusgidon regarding the commission of the offence only then investigation may be made. This section further has taken care of i.e. the police officer finds that there is sufficient ground for not entering into the investigation he shall not investigate the case. It is the duty of the police officer when a suspicion is raised to go on the spot and examine the persons acquainted with the facts of the case under Sections 160 and 161 of Cr. P.C. The powers have been given to the police officer to effect recovery, search of the site, incriminating articles connected with the crime and personal search of the accused. This is a process of collection of facts during investigation.
7. There is vast power given to the police officer under Section 41 of the Cr. P.C. Any police officer may without an order from a Magistrate and without a warrant, arrest any person who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists, of his having been so concerned. Again emphasis has been laid down on credible information and reasonable suspicion and no more. Soon after the arrest of the person the legislature has given time to produce the accused within 24 hours before a Magistrate to get further remand to police for investigation of the case. The maximum period of remand under Section 167, Cr. P.C. is fifteen days and during this process police officer make frequent use of provision of Section 27 of the Evidence Act and Section 8 is also resorted. The legislature now has provided maximum period of putting of challan sixty days if the investigation does not relate to an offence punishable by death or imprisonment of life or imprisonment not less than ten years and ninety days for the henious offences i.e. punishable by death and imprisonment for life or offence not punishable for less than ten years.
8. After the collection of facts by the investigation agency if the investigation agency finds under Section 269, Cr. P.C. that there is sufficient evidence or reasonable ground of, suspicion of commission of offence the accusation under Section 173, Cr. P.C. is submitted for a Court and the Magistrate takes cognizance and if the Magistrate finds that there are no grounds to frame the accused is discharged. There is also provision regarding bail after the putting of “Challan” i.e. ninety days or sixty days. There is also provision that if the “Challan” is not put up the accused will be released. Under Section 309, Cr. P.C. there is provision to expedite the enquiry or trial as soon as the cognizance is taken and the accused is not discharged and the Court is empowered to adjourn the cases on sufficient ground for a term nor exceeding fifteen days at a time. The reference of this section has been made just to understand the reconsideration of interest of the accused and society.
9. There is Article 21 of the Constitution of India which lays down that no person shall be deprived of his life or personal liberty except in accordance with procedure established by law. The question now arises that if a person is murdered, a woman is raped, a young school girl is raped and then is murdered, dacoity is committed by a gang, young couple/old couple is murdered in the night for money greed by servant or other anti-social elements, student murder young class fellow who refused to marry, kidnapping is done by criminal of boys belonging to rich families for ransom and women are abducated for so many reasons. So many crimes against human bodies and properties are committed. While collar crimes are also being committed. Scams are being committed in various forms and they are rampant. Crimes against ilicit drug trafficking are rampant by organised gangs and the life of the youth is at stake. The legislature in its wisdom found to enact Narcotics Drugs and Psychotropic Substances Act, 1985 and Terrorists and Disruptive Activities (Prevention) Act, 1987 to meet the challenge and made drastic provision not to release the accused on bail to curb the crime.
10. The idea of formation of a State by the people is to protect their life, liberty and security so that there is a social order and people can live peaceful life and pursue their pursuits of life and attain maximum happiness. People want to attain this object entered into contract with the Government and surrendering limited sovereignity. A person has a fundamental right to live and has no right to die under Article 21 of the Indian Constitution. When a person dies unnatural death i.e. may be on account of murder, the society is interested through instrumentality of State Government to have a fairspeedy investigation and fair trial so that justice is done. The accused’s liberty is as important as peace and social order of the society. So ultimately there has to be balancing of interests of accused and of the society. Who figure first than the accused? Obviously society interest as a whole. So in these circumstances can a police officer be stopped at the very threshold investigation when the first information report is lodged to collect the facts by way of quashing the first information report and whether the arrest of the accused can be permitted to put a hindrance in the collection of facts —
11. In our view the police officer cannot be stopped to collect the facts till the stage of Section 157(1)(b) reaches that the police officer himself is satisfied that there is no sufficient ground for entering in the investigation and he shall not investigate the case. The Magistrate has a power under Section 159, Cr. P.C. to order investigation or preliminary enquiry. Even when an aggrieved person is not satisfied with the investigation of an investigating agency the complaint can move competent Criminal Court under Section 190, Cr. P, C. to take cognizance and an appropriate case can bring facts to the Apex Court and High Court as it happened in “Hawala” case to bring the investigation to a logical end if the police agencies are not performing their duties.
12; After the collection of the material if it is a Session Trial Case, under Section 227 Cr. P.C. the accused can be discharged if the Judge considers that there is no sufficient ground for proceeding against the accused. Again the Hon’ble Supreme Court in so many cases have held that charge can be framed on even grave suspicion and it cannot make a roving enquiry into the pros and cons of the matter and weigh evidence as he was conducting trial (kindly see Suptd. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja, AIR 1980 SC 52 and Union of India v. Prafulla Kumar Samal, AIR 1979 SC 366).
13. Under Section 232, Cr. P.C. if there is no evidence after examining the evidence of the prosecution the Judge acquits the accused. Similarly in a warrant case under Chapter XIX of Cr. P.C. there is a provision under Section 240, Cr. P.C. for discharge of the accused. Again the question arises that if a legislature has mentioned different stages for the protection of the accused and reconciled the interests of the society with the accused, can the accused at the very threshhold of lodging first information report has right to get it quashed without collection of facts? Has the accused right to strangulate or thwart the investigation and subvert due process of law?The answer is “No”. The Hon’ble Supreme Court and Privy Council right from Khwaja Nazir Ahmad’s case (AIR 1945 Privy Council 18) to the present catena of judicial precedents of apex Court has loathed.the practice of High Courts of quashing the first information report under Section 482. Cr. P.C. The idea of quashing the first information report at the very threshhold is that the High Court cannot assume the role of a trial Court and by pass so many stages of Cr. P.C. as mentioned above. When the legislature has provided that if the High Court starts quashing the first information report in each and every case except in rare cases, it would amount abuse of process of judicial power over the society and the society will not get criminal justice. The society will then come to old state of nature. Political Philospher Hobbes described it. “It was nasty, brutal and cruel”. We would be reverting in that eventuality to the theory of criminal justice “tooth for tooth and eye for eye.” There will be complete social chaos and disorder. The crime will be flourishing and so security of life and property would come to an end.
14. We would like to refer the judgment of Hon’ble Supreme Court in State of Maharashtra v.Ishwar Piraji Kalpatri,(1996) 1 SCC 542:(AIR 1996 SC 722) on quashing of the first information report: —
If the complaint which is made is correct and an offence had been committed which will have to be established in a Court of law, it is of no consequence that the complainant was a person who was inimical or that he was guilty of mala fides. If the ingredients which establish the commission of the offence or misconduct exist then, the prosecution cannot fail merely because there was an animus of the complainant or the prosecution against the accused. Allegations of mala fides may be relevant while judging the correctness of the allegations or while examining the evidence. But the mere fact that the complainant is guilty of mala fides, would be no ground for quashing the prosecution. In the instant case, specific averments of facts have been made whereby it was alleged that the respondent had disproportionately large assets. Mala fide intention of the appellant in launching prosecution against the respondent with a view to punish him cannot be a reason for preventing the Court of competent jurisdiction from examining the evidence which may be led before it, for coming to the conclusion whether an offence had been committed or not.
15. There is another judgment of Hon’ble Supreme Court Mrs. Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 7 JT (SC) 299 : (AIR 1996 SC 309) in which the Supreme Court observed :
It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/ Charge-sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is concluded and the charge-sheet is laid the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether Court could take cognizance of the offence, on that evidence and proceed further with the trial. If it reaches a conclusion that no cognisable offence is made out no further act could be done except to quash the charge sheet. But only in exceptional cases, i.e. in rarest of rare case of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognisable offence the Court may embark upon the consideration thereof and exercise the power.
When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Section 482 of the Code is available. When the Court exercises its inherent power under Section 482 the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the processes of the Court. When investigation officer spends considerable time to collect the evidence and places the charge-sheet before the Court, further action should not be short-circuited by resorting to exercise inherent power to quash the charge sheet. The social stability and order requires to be regulated by proceeding against the offender as it in an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power.
16. Similar view has been taken by the Hon’ ble Supreme Court in State of Tamil Nadu v. Thirukkural Perumal, (1995) 3 JT (SC) 166. In this case it was observed that the power of quashing a FIR and criminal proceedings should be exercised sparingly by the Courts.
17. Of course the ratio of judgment is that in rarest of rare case the F.I.R. can be quashed and those cases cannot be defined and the basic test is that if averments in the F.I.R. are admitted to be true at its face value or other evidence collected by the police during the investigation admitted to be true no offence is disclosed then of course it can be quashed as to prevent abuse of process of the Court.
18. The High Court cannot assume the role of the trial Court and start parallel trial, as mentioned above by way of examining the counter-affidavits that of accused-petitioner and prosecution and in that eventuality it will be obvious that the High Court has assumed the role of Magistrate or trial Court which the legislature in its wisdom has prohibited it and the Courts should not ordinarily question the wisdom of the legislature.
19. The next question which arises for consideration is that in case if the U.P. Government has deleted for the time being the provisions of anticipatory bail i.e. Section 438, Cr. P.C. would in that eventuality it would be permissible to allow the bail under Article 226 of the Constitution of India? Validity of Section 438, Cr. P.C. was upheld by Hon’ ble Supreme Court in Kartar Singh v. State of Punjab, (1994) 2 JT 423 : (1994 Cri L J 3139) and it was held that it is not violative of Articles 14 and 21 of the Constitution of India. The petitioner has a right in rarest of rare cases or in very exceptional cases move the application under Article 226 of the Constitution of India for the enforcement of fundamental right or for seeking writ of habeas corpus. It should not be routine affair.
20. There is also provision of Section 439, C r. P.C. regarding special powers to High Court and Court of Session regarding bail and the High Court and Sessions Court enjoy vast powers in the facts and circumstances of each case after examining the material collected during investigation and going through the case diary to grant or reject the bail after affording the opportunity to the prosecution. It cannot be said that the suspected accused is without remedy.
21. Now question would arise that in Indian society there is tendency in some cases of lodging false complaints/vexatious and frivolous first information report to wreak vengence on account of so many factors, political vendetta, personal enimity etc. In that eventuality what is the remedy of the petitioner, if the petitioner is arrested and later on the complaint is found to be false or vexatious. The legislature is left to the satisfaction of the police officer whether to proceed with the investigation or not and it is for the legislature to take steps or to think about it and appoint competent and intelligent police officers in the changing complex of indian society. The Courts have been liberal in granting compensation against illegal arrest by the police officer.
22. Regarding harassement during investigation, the provision has been made under Section 54 of Cr. P.C. Regarding medical examination of the accused. The accused has been given a right to meet to relations. He has a right to engage counsel of his own choice and the law has gone to such extent that even the interrogation takes place in the presence of the lawyer, as happened in Smt. Satpati Nandini’s case and this provision is frequently being used (kindly see AIR 1978 SC 1025 (1947)). Recently the rights of arrested person have been defined by the Hon’ble Supreme Court in Joginder Kumar v. State of U. P., (1994) 3 JT (SC) 423 : (AIR 1994 SC 1349).
23. These rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognised and scrupulously protected. For effective enforcement of these fundamental rights, we issue the following requirements :
(1) An arrested person being held in custody is entitled, if he so requests to have one friend relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
(2) The Police Officer shall inform the arrested person when he is brought to the police station of this right.
(3) An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.
It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.
The above requirements shall be followed in all cases of arrest till legal provisions are made in this behalf. These requirements shall be in addition to the rights of the arrested person found in the various police Manuals.
24. The requirements are not exhaustive. The Directors General of Police of all the States in India shall issue necessary instructions requiring due observance of these requirements. In addition, departmental instruction shall also be issued that a police officer making an arrest should also record in the case diary, the reasons for making the arrest.
25. The Supreme Court happened to examine the scope of Article 226 of the Constitution of India of Bail Application in Terrorists and Disruptive Activities (Prevention) Act in Kartar Singh v. State of Punjab, (1994)2 JT 423 : (1994 Cri L J 3139) and observed that:
The power given to High Court under Article 226 is an extraordinary power not only to correct the manifest error but also to exercise it for sake of justice. Under the scheme of the Constitution a High Court is the highest Court for purposes of exercising civil appellate, criminal or even constitutional jurisdiction so far that State is concerned. The jurisdiction possessed by it before coming into force of the Constitution was preserved by Article 225 and by Articles 226 and 227 an extraordinary jurisdiction was conferred on it to ensure that the subordinate authorities act not only in accordance with law but they also function within the framework of law. That jurisdiction of the High Court has not been taken away and in fact could not be taken away by legislation. In England even in absence of Constitution whenever an attempt was made by Parliament to provide that the order was final and no writ of certiorari would lie the High Court always struck down the provision. Since the High Court under the Constitution is a forum for enforcement of fundamental right of a citizan it cannot be denied the power to entertain a petition by a citizen claiming that the State machinery was abusing its power and was acting in violation of the constitutional guarantee. Rather it has a constitutional duty and responsibility to ensure that the State machinery was acting fairly and not on extraneous considerations. In State of Maharashtra v. Abdul Hamid Haji Mohammad, (1994) 2 JT 1: (1994 AIR SCW 2930), this Court after examining the principle laid down in State of Haryana v. Bhajan Lal (supra) and Paras Ram v. State of Haryana held that the High Court has jurisdiction to entertain a petition under Article 226 in extreme cases. What are such extreme cases cannot be put in straight jacket. But the view on which there can be hardly any dispute are if the High Court is of opinion that the proceedings under TADA were an abuse of process of Court or taken for extraneous considerations or there was no material on record that a case under TADA was made out. If it be so then there is no reason why should the High Court not exercise its jurisdiction and grant bail to the accused in those cases. Where one or the other exceptional ground is made out.
26. In this case the petitioner directly approached to the High Court instead of Supreme Court against the order of the designated Court order under Article 226 of the Constitution of India by way of filing of bail application for release of the accused. The Supreme Court happened to make aforesaid observations.
27. The High Court has a plenary jurisdiction to entertain in extreme cases application for bail and those cases have not been defined and is left to the jurisdiction of the High court as and when cases arise the application is maintainable in view of the Supreme Court judgment. This power has to be exercised with great care and circumspection keeping the interest of the society at large. This is an age of human rights violation and terrorism also.
28. State security is at risk, social tensions are arising. Ordinary crime is on increase and ultimately the Courts are to become more pragmatic keeping the larger interest of the society while entertaining the application and the framers of Indian Constitution gave the powers to the High Court under Article 226 of the Indian Constitution with respect to protection of fundamental right of the individual keeping the interest of the society paramount and not giving blanket licence to the individual at the altar of the society.
29. In view of the discussion above, we are of the view that in the facts and circumstances this is not a case where the discretion for granting relief is made out. The question of quashing the F.I.R. is also declined at this juncture.
30. With this observation the writ petition is disposed of.