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AJEET SINGH @ MURAHA versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Ajeet Singh @ Muraha v. State of U.P. & Others - CRIMINAL MISC. WRIT PETITION No. 4861 of 2000 [2004] RD-AH 605 (22 August 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                            Court No.29

         Criminal Misc. Writ Petition No.4861 of 2000

  Ajeet Singh alias Muraha Vs. State of U.P. and others

Hon'ble M. Katju, J.

Hon'ble Onkareshwar Bhatt,J.

                   (Delivered by Hon;ble M. Katju,J.)

Heard Sri S.K. Shukla learned counsel for the petitioner and learned Government Advocate.  The petitioner has prayed for a writ of certiorari for quashing the FIR dated 19.5.2000 (Annexure-1 to the petition) registered as Case Crime No.144 of 2000 under section 323, 504, 506 IPC read with Section 3(1) (10) of SC/ST Act, P.S.Khuthan, District Jaunpur.

Learned counsel for the petitioner has relied on the decision of the Supreme Court in Joginder Kumar Vs. State of U.P. AIR 1994 SC 1349.  In that decision the Supreme Court observed (in paragraph 24):-

"24.  No arrest can be made because it is lawful for the Police Office 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 self esteem of a person. No arrest can be make in a routine manner on a mere allegation of commission of an offence made against a person.  It would be 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 as so as to the need to effect arrest.  Denying a person of his liberty is a serious matter.  The recommendation of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom.  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 a person to attend the Station House and not to leave the Station without permission would do".

The Supreme Court also (in paragraph 23) referred to the Third Report of the National Police Commission that had 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 process 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."

The Supreme Court also referred to the report of the Royal Commission in England in this connection (in paragraph 19 to 22).

The Supreme Court also observed (in paragraph 13) that the Third Report of the National Police Commission had mentioned that nearly 60% of the arrests by the police were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 percent of the expenditure of the jails.  The Police Commission in its Third report mentioned that a major portion of the arrests by the police were connected with minor prosecutions and therefore cannot be regarded as quite necessary from the point of view of crime prevention.

On the other hand learned Government Advocate has relied on the Full Bench decision of this Court in Satya Pal and others Vs. State of U.P. and others 2000(4) ACC 75.  We have carefully perused the decision of the Supreme Court in Joginder Kumar's case and the decision of the Full Bench in Satya Pal's case (supra).  We are of the opinion that many of the observations in Satya Pal's case are in conflict with the observations of the Supreme Court in Joginder Kumar's case(supra), and hence the matter needs to be referred to a larger bench for re-considering these observations in Satya Pal's case(supra) which appear to be inconsistent with the observations of the Supreme Court in Joginder Kumar's case (supra).

In paragraph 36 of the judgement of the Full Bench in Satya Pal's case (supra) no doubt paragraph 24 of the decision in Joginder Kumar's case has been quoted.  However, thereafter the decision of the Supreme Court in Joginder Kumar's case has been practically brushed aside in Satya Pal's case by the following observation in paragraph 37.  However, the aforesaid observation of the Hon'ble Supreme Court have been made on the peculiar facts and circumstances of Joginder Kumar's case which are difference from the present one.

There is no discussion in Satya Pal's case about the principles relating to the power of arrest laid down in Joginder Kumar's case.  It is settled law that the decision of the Supreme Court is binding on the High Court in view of Article 141 of the Constitution of India.  Even obiter dicta of the Supreme Court are binding on the High Court.  Hence we are constrained to observe that it was not open to the full bench of this Court in Satya Pal's case to practically brush aside the Supreme Court's decision in Joginder Kumar's case merely by saying that the decision in Joginder Kumar's case was made on its own 'peculiar facts and circumstances'.  Decision of the Supreme Court are absolutely binding on the High Court and must be followed faithfully and punctually.  With profound respect to our brethren Judges who delivered judgement in Satya Pal's case we are constrained to say that they did not seem to have followed the aforesaid decision of the Supreme Court and have brushed aside the said decision by a stray observation in paragraph 37.  If Supreme Court decisions are treated in this manner then every decision of the Supreme Court can be disregarded by High Court Judges simply by saying that the decision was 'on its own peculiar facts'.  To say the least, this would be grossly subversive of judicial discipline.

In paragraph 40 of Satya Pal's case (supra) it has been observed 'However, the order staying arrest may be granted sparingly in exceptional cases and with circumspection, that too in the rarest of rare cases".  This observation, in our opinion, is inconsistent with the decision in Joginder Kumar's case.  There is no such principle of law laid down in Joginder Kumar's case that stay of arrest should only be granted in the rarest or rare cases.  The criteria as to when there should be arrest and when there should not be arrest has been laid down in Joginder Kumar's case, and it is not open to the High Court to deviate from that criteria.  The principle of rarest of rare case was laid down by the Supreme Court in connection with death sentence, and it has nothing to do with staying of arrest.  Hence in our opinion to say that arrest should be stayed only in rarest of rare cases would be inconsistent with and contrary to the observations and directions of the Supreme Court in Joginder Kumar's case (supra).

After the promulgation of the Constitution individual liberty has become of great importance particularly in view of Article 21, which is a fundamental right.  Hence it cannot be lightly interfered with.  Moreover, section 157(1) Cr.P.C. States :-

"157. Procedure for investigation - (1)  If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officer not being below such rank as the State Government may, by general or special order, prescribe in this behalf to proceed, to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender."

The above provision clearly shows that it is not necessary to arrest in every case wherever a FIR of cognizable offence has been registered.  No doubt investigation has to be made in every case where a cognizable offence is disclosed but in our opinion investigation does not necessarily include arrest.  Often the investigation can be done without arresting a person, and this legal position becomes clear from section 157(1) of the Cr.P.C. because that provision states that the Police Officer has to investigate the case, and, if necessary, to take measures for the arrest of the offender.  The use of words ' if necessary' clearly indicates that the Police Officer does not have to arrest in every case wherever FIR has been lodged and this position has been clarified in Joginder Kumar's case (supra).

In our country unfortunately whenever an FIR of a cognizable offence is lodged the police immediately goes to  arrest the accused.  This practice in our opinion is illegal as it s against the decision of the Supreme Court in Joginder Kumar's case, and it is also in violation of Article 21 of the Constitution as well as section 157 (1) Cr.P.C.  No doubt section 157(1) Cr.P.C. gives a police officer discretion to arrest or not, but this discretion cannot be exercised arbitrarily and it must be exercised in accordance with the principles laid down in Joginder Kumar's case (supra).

It may be mentioned that the provision for anticipatory bail has been deleted by an amendment in U.P. and a full bench of this Court has held that the High Court cannot order disposal of the bail application on the same day.  It is well known that in U.P. criminal trials often take 5 years or sometimes even more to complete, and hence the question arises that if an accused is found innocent after this long interval who will restore these 5 years or so of life to him if he is not granted bail.

It may be mentioned that a person's reputation and esteem in society is a valuable asset, just as in civil law it is an established principles that goodwill of a firm is an intangible asset.  In practice, if a person applies for bail he has to surrender in court, and normally the bail application is put up for hearing after a few days and in the meantime he has to go to jail.  Even if he is subsequently granted bail or is acquitted his reputation is irreparably tarnished in society.  Often false and frivolous FIR are filed yet the innocent person has to go to jail and this greatly damages his reputation in society.  All these factors must be kept in mind by the High Court particularly after the promulgation of the Constitution, which has embodied the right to liberty as a valuable fundamental right in Article 21 of the Constitution of India.

In view of the above we are of the opinion that certain observations and directions of the three Judge full bench of this Court in Satya Pal Vs. State of U.P.(supra) needs to be re-considered by a larger bench of this Court.  Hence we are of the opinion that the following question need to be referred to a larger bench:-

1.Whether arrest  during police investigation can be stayed by this Court only in rarest of rare cases as observed in Satya Pal's case or according to the criteria laid down by Supreme Court in Joginder Kumar's case (supra) ?

2.Whether the full bench in Satya Pal's case (supra) was right in holding that Joginder Kumar's case was delivered on its own 'peculiar facts and circumstance' and hence does not lay down any legal principles relating to the power of arrest and the power of stay of arrest by this Court ?

In view of the above let the papers of this case be laid before Hon'ble the Chief Justice for constituting a larger bench for reconsidering the correctness of the decision of the full bench decisions of this Court in Satya Pal's case (supra).

Learned Government Advocate may file counter affidavit within a month.

Issue notice to respondent no.3 returnable at an early date.

In the meantime we direct that petitioner shall not be arrested in the above case till submission of charge sheet in court but investigation in the above mentioned case may go on.

Dt. 22.8.2004


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