Page 1 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 146 OF 2014

[Arising out of SLP (Crl.) No.7439 of 2013)

Km. Hema Mishra .. Appellant

Versus

State of U.P. and Others .. Respondents

J U D G M E N T

K. S. RADHAKRISHNAN, J.

1.Leave granted.

2.Appellant herein had invoked the extraordinary

jurisdiction of the High Court under Article 226 of the

Constitution of India seeking the following reliefs:

i)Issue a writ, order or direction in the nature of

Certiorari thereby quashing the impugned FIR dated

21.12.2011, contained in Annexure No. 1 to this writ

Page 2 2

petition, lodged at crime No. 797/11 under Sections

419/420 IPC, at Police Station Zaidpur, District

Barabanki;

ii)Issue a writ, order or direction in the nature of

Mandamus thereby directing the Superintendant of

Police, Barabanki, the opposite Party No. 2, and the

Investigating Officer, Case Crime No. 797/11, under

Sections 419/420 IPC, Police Station, Zaidpur, District

Barabanki, the opposite party No. 3, to defer the arrest

of the petitioner until collection of the credible evidence

sufficient for filing the charge-sheet by following the

amended proviso to Sections 41(1)(b) read with Section

41A CrPC;

iii)Issue a writ, order or direction in the nature of

Mandamus thereby directing the Superintendent of

Police, Barabanki, the opposite party No. 2, for

compliance of the provision of Sections 41(1)(b) and

41A CrPC in the investigation of the impugned FIR

dated 21.12.2011 contained in Annexure No. 1 to this

writ petition, lodged in crime No. 797/11, under

Sections 419/420 IPC, Zaidpur, District Barabanki; and

iv)Allow this writ petition with costs.

3.The High Court, after hearing the parties as well as the

State, dismissed the writ petition on 9.1.2012 and passed

the following order:

“Heard learned counsel for the petitioner and

learned Additional Government Advocate. Under

Page 3 3

challenge in the instant writ petition is FIR relating

to Case Crime No. 797 of 2011, under Sections

419 & 420 IPC, police station Zaidpur, district

Barabanki. We have gone through the FIR, which

discloses commission of cognizable offence, as

such, the same cannot be quashed. The writ

petition lacks merit and is accordingly dismissed.

However, the petitioner being lady, it is

provided that if she surrenders and moves

application for bail the same shall be considered

and decided by the courts below expeditiously.”

4.The appellant, complaining that she was falsely

implicated in the case, has approached this Court

contending that the High Court had failed to exercise its

certiorari jurisdiction under Article 226 of the Constitution of

India in not quashing the FIR dated 21.12.2011 and in

refusing to grant anticipatory bail to the appellant. Appellant

submitted that the High Court ought to have issued a writ of

mandamus directing the Superintendent of Police, Barabanki

to defer the arrest of the appellant until the collection of

credible evidence sufficient for filing the charge-sheet,

following the amended proviso to Section 41(1)(b) read with

Section 41A Cr.P.C.

Page 4 4

5.The Secretary, U.P. Secondary Education Board,

Allahabad and the District School Inspector vide their letter

dated 8.12.2011 registered a complaint alleging that the

appellant had committed fraud and forgery in the matter of

preparation of documents of Government Office regarding

selection for the post of Assistant Teacher and,

consequently, got appointment as the Assistant Teacher in

Janpad Inter-College at Harakh, District Barabanki, with

payment of salary amounting to Rs.1,10,000/- from the

Government exchequer. On the basis of the FIR, Case

Crime No. 797 of 2011 was registered under Sections

419/420 IPC before the Police Station, Jaizpur, District

Barabanki. After having come to know of the registration of

the crime, the appellant filed a representation on 27.12.2011

before the Superintendent of Police, District Barabanki and

the Investigating Officer making the following prayer:

“As such through this application/representation

the applicant prays that keeping in view the

willingness of the applicant for cooperating in

investigation and to appear before the

investigating officer upon being called in case

crime no. 797/11 u/Ss 419/420 IPC, PS Jaipdur,

District Barabanki, order for staying the arrest of

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applicant be passed so that compliance to the

provision 41(1)(B) Section 41(A) amended to CrPC

1973 be made.”

6.Since the appellant did not get any reply to the said

representation, she invoked the extraordinary jurisdiction of

the High Court under Article 226 of the Constitution of India

by filing Writ Petition Misc. Bench No. 171 of 2012 which was

dismissed, as already indicated, on 9.1.2012.

7.When the matter came up for hearing before this Court,

it passed an interim order on 1.3.2013, the operative portion

of which reads as under:

“Considering the facts and circumstances of

the case, we are inclined to direct that in the

event of arrest of the petitioner, she shall be

released on bail on furnishing personal bond of

Rs.50,000/- (Fifty Thousand only) with two

solvent sureties for the like amount to the

satisfaction of the Trial Court, subject to the

condition that she will join investigation as and

when required and shall abide by the provisions

of Section 438(2) of the Code of Criminal

Procedure.”

8.Shri Aseem Chandra, learned counsel appearing for the

appellant, submitted that the High Court has committed an

Page 6 6

error in not quashing the FIR, since the registration of the

crime was with mala fide intention to harass the appellant

and in clear violation of the fundamental rights guaranteed

to the appellant under Articles 14, 19 and 21 of the

Constitution of India. Learned counsel submitted that the

appellant was falsely implicated and that the ingredients of

the offence under Sections 419/420 IPC were not prima facie

made out for registering the crime. Learned counsel also

pointed out that the High Court has not properly appreciated

the scope of Sections 41(1)(b) and 41A CrPC, 1973 and that

no attempt has been made to follow those statutory

provisions by the State and its officials.

9.Shri Gaurav Bhatia, learned AAG, appearing for the

State, submitted that the investigation was properly

conducted and the crime was registered. Further, it was

also pointed out that the President has also withheld the

assent of the Code of Criminal Procedure (Uttar Pradesh

Amendment) Bill, 2010, since the provisions of the Bill were

found to be in contravention to Section 438 of the Cr.P.C.

Page 7 7

and hence the High Court rightly declined the stay sought for

under Article 226 of the Constitution of India.

10.Shri Siddharth Luthra, Additional Solicitor General, who

appeared on our request, submitted that the High Court can

in only rarest of rare cases grant pre-arrest bail while

exercising powers under Article 226 of the Constitution of

India, since the provision for the grant of anticipatory bail

under Section 438 Cr.P.C. was consciously omitted by the

State Legislature. The legislative intention is, therefore, not

to seek or provide pre-arrest bail when the FIR discloses a

cognizable offence. Shri Luthra submitted that since there is

a conscious withdrawal/deletion of Section 438 CrPC by the

Legislature from the Code of Criminal Procedure, by Section

9 of the Criminal Procedure (Uttar Pradesh) Amendment Act,

1976, the relief which otherwise the appellant could not

have obtained under the Code, is sought to be obtained

indirectly by invoking the writ jurisdiction of the High Court,

which is impermissible in law.

Page 8 8

11.Shri Luthra also submitted that since the appellant has

no legal right to move for anticipatory bail and that practice

is not an integral part of Article 21 of the Constitution of

India, the contention that the High Court has failed to

examine the charges levelled against the appellant, was

mala fide or violative of Articles 14 and 21 of the

Constitution of India, does not arise. Shri Luthra also

submitted that the High Court was not correct in granting

further reliefs after having dismissed the writ petition and

that, only in extraordinary cases, the High Court could

exercise its jurisdiction under Article 226 of the Constitution

of India and the case in hand does not fall in that category.

12.I may indicate that the legal issues raised in this case

are no more res integra. All the same, it calls for a relook

on certain aspects which I may deal with during the course

of the judgment.

13.I am conscious of the fact that since the provisions

similar to Section 438 Cr.P.C. being absent in the State of

Uttar Pradesh, the High Court is burdened with large number

Page 9 9

of writ petitions filed under Article 226 of the Constitution of

India seeking pre-arrest bail. Section 438 was added to the

Code of Criminal Procedure in the year 1973, in pursuance to

the recommendation made by the 41

st

Law Commission, but

in the State of Uttar Pradesh by Section 9 Criminal

Procedure (Uttar Pradesh) Amendment Act, 1976, Section

438 was specifically omitted, the legality of which came up

for consideration before the Constitution Bench of this Court

in Kartar Singh v. State of Punjab (1994) 3 SCC 569 and

the Court held that the deletion of the application of Section

438 in the State of Uttar Pradesh by Section 9 of the above

mentioned Amendment Act does not offend either Article 14,

Article 19 or Article 21 of the Constitution of India and the

State Legislature is competent to delete that section, which

is one of the matters enumerated in the concurrent list, and

such a deletion is valid under Article 254(2) of the

Constitution of India.

14.I notice, therefore, as per the Constitution Bench, a

claim for pre-arrest protection is neither a statutory nor a

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right guaranteed under Article 14, Article 19 or Article 21 of

the Constitution of India. All the same, in Karatar Singh’s

case (supra), this Court in sub-para (17) of Para 368, has

also stated as follows:

“368 xxx xxx xxx

(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 Act 1987, 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;

xxx xxx xxx”

15.The High Court of Allahabad has also taken the same

view in several judgments. Reference may be made to the

judgments in Satya Pal v. State of U.P. (2000 Cri.L.J. 569),

Ajeet Singh v. State of U.P. (2007 Cri.L.J. 170), Lalji

Yadav & Others v. State of U.P. & Another (1998 Cri.L.J.

2366), Kamlesh Singh v. State of U.P. & Another (1997

Page 11 11

Cri.L.J. 2705) and Natho Mal v. State of U.P. (1994 Cri.L.J.

1919).

16.We have, therefore, no concept of “anticipatory bail” as

understood in Section 438 of the Code in the State of Uttar

Pradesh. In Balchand Jain v. State of M.P. (1976) 4 SCC

572, this Court observed that “anticipatory bail” is a

misnomer. Bail, by itself, cannot be claimed as a matter of

right under the Code of Criminal Procedure, 1973, except for

bailable offences (Section 436 Cr.P.C., 1973). For non-

bailable offences, conditions are prescribed under Sections

437 and 439 Cr.P.C. The discretion to grant bail in non-

bailable offences remains with the Court and hence, it

cannot be claimed as a matter of right, but the aggrieved

party can only seek a remedy and it is on the discretion of

the Court to grant it or not. In this connection reference may

also be made to the Judgment of the seven-Judge Bench of

the Allahabad High Court in Smt. Amarawati and Ors. V.

State of U.P. (2005) Cri.L.J. 755, wherein the Court, while

interpreting the provisions of Sections 41, 2(c) and 157(1)

Page 12 12

CrPC as well as the scope of Sections 437 and 439, held as

follows:

“47. In view of the above we answer the

questions referred to the Full Bench as follows:

(1) Even if cognizable offence is disclosed, in the

FIR or complaint the arrest of the accused is

not a must, rather the police officer should be

guided by the decision of the Supreme Court

in Joginder Kumar v. State of U.P., 1994 Cr LJ

1981 before deciding whether to make an

arrest or not.

(2) The High Court should ordinarily not direct

any Subordinate Court to decide the bail

application the same day, as that would be

interfering with the judicial discretion of the

Court hearing the bail application. However,

as stated above, when the bail application is

under Section 437 Cr.P.C. ordinarily the

Magistrate should himself decide the bail

application the same day, and if he decides in

a rare and exceptional case not to decide it

on the same day, he must record his reasons

in writing. As regards the application under

Section 439 Cr.P.C. it is in the discretion of

the learned Sessions Judge considering the

facts and circumstances whether to decide

the bail application the same day or not, and

it is also in his discretion to grant interim bail

the same day subject to the final decision on

the bail application later.

(3) The decision in Dr. Vinod Narain v. State of

UP is incorrect and is substituted accordingly

by this judgment.”

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17.This Court in Lal Kamlendra Pratap Singh v. State

of Uttar Pradesh and Others (2009) 4 SCC 437, while

affirming the judgment in Amarawati (supra), held as

follows:

“6. Learned counsel for the appellant apprehends

that the appellant will be arrested as there is no

provision for anticipatory bail in the State of U.P.

He placed reliance on a decision of the Allahabad

High Court in Amarawati v. State of U.P. in which a

seven-Judge Full Bench of the Allahabad High

Court held that the court, if it deems fit in the facts

and circumstances of the case, may grant interim

bail pending final disposal of the bail application.

The Full Bench also observed that arrest is not a

must whenever an FIR of a cognizable offence is

lodged. The Full Bench placed reliance on the

decision of this Court in Joginder Kumar v. State of

U.P. (1994) 4 SCC 260.

7. We fully agree with the view of the High Court in

Amarawati case and we direct that the said

decision be followed by all courts in U.P. in letter

and spirit, particularly since the provision for

anticipatory bail does not exist in U.P.

8. In appropriate cases interim bail should be

granted pending disposal of the final bail

application, since arrest and detention of a person

can cause irreparable loss to a person’s

reputation, as held by this Court in Joginder Kumar

case. Also, arrest is not a must in all cases of

cognizable offences, and in deciding whether to

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arrest or not the police officer must be guided and

act according to the principles laid down in

Joginder Kumar case.”

18.Later, a two-Judge Bench of this Court in Som Mittal v.

State of Karnataka (2008) 3 SCC 753, while dealing with

an order of the Karnataka High Court under Section 482

CrPC, one of the Judges made some strong observations as

well as recommendations to restore Section 438 in the State

of U.P. Learned Judges constituting the Bench also

expressed contrary views on certain legal issues, hence, the

matter was later placed before a three-Judge Bench, the

judgment of which is reported in same caption (2008) 3 SCC

574, wherein this Court opined that insofar as the

observations, recommendations and directions in paras 17 to

39 of the concurrent judgment is concerned, they did not

relate to the subject matter of the criminal appeal and the

directions given were held to be obiter and were set aside.

19.I notice in this case FIR was lodged for offences, under

Sections 419 and 420 IPC which carry a sentence of

maximum of three years and seven years respectively with

Page 15 15

or without fine. Benefit of Section 41(a) Cr.P.C. must be

available in a given case, which provides that an

investigating officer shall not arrest the accused of such

offences in a routine manner and the arrest be made, only

after following the restrictions imposed under Section 41(b).

The relevant provisions, as it stands now reads as follow:

“41. When police may arrest without

warrant.- (1) Any police officer may without an

order from a Magistrate and without a warrant,

arrest any person –

(a)who commits, in the presence of a

police officer, a cognizable offence;

(b)against whom a reasonable complaint

has been made, or credible information

has been received, or a reasonable

suspicion exists that he has committed a

cognizable offence punishable with

imprisonment for a term which may be less

than seven years or which may extend to

seven years whether with or without fine, if

the following conditions are satisfied,

namely:-

(i) the police officer has reason to

believe on the basis of such

complaint, information, or suspicion

that such person has committed the

said offence;

(ii) the police officer is satisfied that

such arrest is necessary –

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(a) to prevent such person from

committing any further offence; or

(b) for proper investigation of the

offence; or

(c) to prevent such person from

causing the evidence of the offence

to disappear or tampering with

such evidence in any manner, or

(d) to prevent such person from

making any inducement, threat or

promise to any person acquainted

with the facts of the case so as to

dissuade him from disclosing such

facts to the Court or to the police

officer; or

(e) as unless such person is

arrested, his presence in the Court

whenever required cannot be

ensured,

and the police officer shall record while

making such arrest, his reasons in writing:

Provided that a police officer shall, in all

cases where the arrest of a person is not

required under the provisions of this sub-

section; record the reasons in writing for

not making the arrest.”

20.Amended provisions make it compulsory for the police

to record the reasons for making arrest as well as for not

making an arrest in respect of a cognizable offence for which

the maximum sentence is upto seven years. Reference in

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this connection may also be made to Section 41A inserted

vide Act 5 of 2009 w.e.f. 01.11.2010, which reads as follows:

“41A. Notice of appearance before police

officer – (1) The police officer shall, in all cases

where the arrest of a person is not required under

the provisions of sub-section (1) of section 41,

issue a notice directing the person against whom a

reasonable complaint has been made, or credible

information has been received, or a reasonable

suspicion exists that he has committed a

cognizable offence, to appear before him or at

such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it

shall be the duty of that person to comply with the

terms of the notice.

(3) Where such person complies and continues to

comply with the notice, he shall not be arrested in

respect of the offence referred to in the notice

unless, for reasons to be recorded, the police

officer is of the opinion that he ought to be

arrested.

(4) Where such person, at any time, fails to

comply with the terms of the notice or is unwilling

to identify himself, the police officer may, subject

to such orders as may have been passed by a

competent Court in this behalf, arrest him for the

offence mentioned in the notice.”

21.Above mentioned provisions make it compulsory for the

police to issue a notice in all such cases where arrest is not

required to be made under Clause (b) of sub-section (1) of

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the amended Section 41. But, all the same, unwillingness of

a person who has not been arrested to identify himself and

to whom a notice has been issued under Section 41A, could

be a ground for his arrest. Legislation has laid down various

parameters, warranting arrest of a person, which itself is a

check on arbitrary or unwarranted arrest and the right to

personal liberty guaranteed under Article 21 of the

Constitution of India.

22. I may, however, point out that there is unanimity in the

view that in spite of the fact that Section 438 has been

specifically omitted and made inapplicable in the State of

Uttar Pradesh, still a party aggrieved can invoke the

jurisdiction of the High Court under Article 226 of the

Constitution of India, being extraordinary jurisdiction and the

vastness of the powers naturally impose considerable

responsibility in its application. All the same, the High Court

has got the power and sometimes duty in appropriate cases

to grant reliefs, though it is not possible to pin-point what

are the appropriate cases, which have to be left to the

Page 19 19

wisdom of the Court exercising powers under Article 226 of

the Constitution of India.

23. I am also faced with the situation that on dismissal of

the writ by the High Court under Article 226 of the

Constitution of India, while examining the challenge for

quashing the FIR or a charge-sheet, whether the High Court

could grant further relief against arrest for a specific period

or till the completion of the trial. This Court in State of

Orissa v. Madan Gopal Rungta reported in AIR 1952 SC

12, while dealing with the scope of Article 226 of the

Constitution, held as follows :-

“Article 226 cannot be used for the purpose of

giving interim relief as the only and final relief on

the application. The directions had been given

here only to circumvent the provisions of Section

80 of the Civil Procedure Code, and that was 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 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

Page 20 20

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.”

24. The language of Article 226 does not permit such an

action and once the Court finds no merits in the challenge,

writ petition will have to be dismissed and the question of

granting further relief after dismissal of the writ, does not

arise. Consequently, once a writ is dismissed, all the interim

reliefs granted would also go.

25.This Court has already passed an interim order on

1.3.2013 granting bail to the appellant on certain conditions.

The said order will continue till the completion of the trial.

However, if the appellant is not co-operating with the

investigation, the State can always move for vacating the

order. The appeal is accordingly dismissed as above.

Page 21 21

……………………………..J.

(K. S. Radhakrishnan)

New Delhi,

January 16, 2014.

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[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 146/2014

(arising out of Special Leave Petition (Crl.) No. 7439/2013)

Km. Hema Mishra …..Appellant

Vs.

State of U.P. & Ors.

….Respondents

J U D G M E N T

A.K.SIKRI,J.

1.I have carefully gone through the judgment authored by my

esteemed brother, Justice Radhakrishnan. I entirely agree with

the conclusions arrived at by my learned brother in the said

judgment. At the same time, I would also like to make some

observations pertaining to the powers of High Court under Article

226 of the Constitution of India to grant relief against pre-arrest

(commonly called as anticipatory bail), even when Section

438,Cr.P.C. authorizing the Court to grant such a relief is

specifically omitted and made inapplicable in so far as State of

Page 23 23

Uttar Pradesh is concerned. I would like to start with reproducing

the following observations in the opinion of my brother, on this

aspect which are contained in paragraph 21 of the judgment. It

reads as under:

“We may, however, point out that there is

unanimity in the view that in spite of the fact that

Section 438 has been specifically omitted and

made inapplicable in the State of Uttar Pradesh,

still a party aggrieved can invoke the jurisdiction

of the High Court under Article 226 of the

Constitution of India, being extraordinary

jurisdiction and the vastness of the powers

naturally impose considerable responsibility in its

application. All the same, the High Court has got

the power and sometimes duty in appropriate

cases to grant reliefs, though it is not possible to

pin-point what are the appropriate cases, which

we have to leave to the wisdom of the Court

exercising powers under Article 226 of the

Constitution of India.”

2.Another aspect which is highlighted in the judgment

rendered by Justice Radhakrishnan is that many times in the Writ

Petition filed under Article 226 of the Constitution of India seeking

quashing of the FIR or the charge-sheet, the petitioners pray for

interim relief against arrest. While entertaining the Writ Petition

the High Court invariably grants such an interim relief. It is rightly

Page 24 24

pointed out that once the Writ Petition claiming main relief for

quashing of FIR or the charge-sheet itself is dismissed, the

question of granting further relief after dismissal of the Writ

Petition, does not arise. It is so explained in para 22 and 23 of the

judgment of my learned brother.

3.I would like to remark that in the absence of any provisions

like Section 438 of Cr.P.C. applicable in the State of Uttar Pradesh,

there is a tendency on the part of the accused persons, against

whom FIR is lodged and/or charge-sheet is filed in the Court to file

Writ Petition for quashing of those proceedings so that they are

able to get protection against the arrest in the interregnum which

is the primary motive for filing such petitions. It is for this reason

that invariably after the lodging of FIR, Writ Petition under Article

226 is filed with main prayer to quash those proceedings and to

claim interim relief against pre-arrest in the meantime or till the

completion of the trial. However, the considerations which have

to weigh with the High Court to decide as to whether such

proceedings are to be quashed or not are entirely different than

that of granting interim protection against the arrest. Since the

Page 25 25

grounds on which such an FIR or charge sheet can be quashed

are limited, once the Writ Petition challenging the validity of FIR

or charge-sheet is dismissed, the grant of relief, incidental in

nature, against arrest would obviously not arise, even when a

justifiable case for grant of anticipatory bail is made out .

4.It is for this reason, we are of the opinion that in appropriate

cases the High Court is empowered to entertain the petition under

Article 226 of the Constitution of India where the main relief itself

is against arrest. Obviously, when provisions of Section 438 of

Cr.P.C. are not available to the accused persons in the State of

Uttar Pradesh, under the normal circumstances such an accused

persons would not be entitled to claim such a relief under Art. 226

of the Constitution. It cannot be converted into a second window

for the relief which is consciously denied statutorily making it a

case of casus omissus. At the same time, as rightly observed in

para 21 extracted above, the High Court cannot be completely

denuded of its powers under Article 226 of the Constitution, to

grant such a relief in appropriate and deserving cases; albeit this

power is to be exercised with extreme caution and sparingly in

Page 26 26

those cases where arrest of a person would lead to total

miscarriage of justice. There may be cases where pre-arrest may

be entirely unwarranted and lead to disastrous consequences.

Whenever the High Court is convinced of such a situation, it

would be appropriate to grant the relief against pre-arrest in such

cases. What would be those cases will have to be left to the

wisdom of the High Court. What is emphasized is that the High

Court is not bereft of its powers to grant this relief under Art. 226

of the Constitution.

A Bench of this Court, headed by the then Chief

Justice Y.V.Chandrachud, laid down first principles

of granting anticipatory bail in the Gurbaksh

Singh v. State of Punjab 1980 Crl.L.J. 417 (P&H),

reemphasizing that liberty… - ‘A person who has

yet to lose his freedom by being arrested asks for

freedom in the event of arrest. That is the stage

at which it is imperative to protect his freedom, in

so far as one may, and to give full play to the

presumption that he is innocent.

5.In Joginder Kumar v. State of U.P. and Others, 1994 Cr L.J.

1981, the Supreme Court observed:

“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

Page 27 27

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 made 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 of a complaint

and a reasonable belief both as to the person’s

complicity and even so as to the need to effect

arrest.”

6.It is pertinent to explain there may be imminent need to

grant protection against pre-arrest. The object of this provision is

to relieve a person from being disgraced by trumped up charges

so that liberty of the subject is not put in jeopardy on frivolous

grounds at the instance of the unscrupulous or irresponsible

persons who may be in charge of the prosecution. An order of

anticipatory bail does not in any way, directly or indirectly; take

away for the police their right to investigate into charges made or

to be made against the person released on bail.

Page 28 28

7.The purposes for which the provisions of anticipatory bail are

made are quite obvious. One of the purposes of the arrest is that

the accused should be available to the investigating machinery

for further investigation and questioning whenever he is required.

Another purpose is that the trial should not be jeopardized and for

this purpose the restrictions on the movements of the accused

are necessary. The genuineness of the alleged need for police

custody has to be examined and it must be balanced against the

duty of courts to uphold the dignity of every man and to vigilantly

guard the right to liberty without jeopardizing the state objective

of maintenance of law and order.

8.I would also like to reproduce certain paragraphs from

Kartar Singh and Ors. V. State of Punjab (1994) 3 SCC 569,

wherein Justice K.Ramaswamy, speaking for the Court, discussed

the importance of life and liberty in the following words.

“The foundation of Indian political and social

democracy, as envisioned in the preamble of the

Constitution, rests on justice, equality, liberty and

fraternity in secular and socialist republic in which

every individual has equal opportunity to strive

towards excellence and of his dignity of person in

an integrated egalitarian Bharat. Right to justice

and equality and stated liberties which include

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freedom of expression, belief and movement are

the means for excellence. The right to life with

human dignity of person is a fundamental right of

every citizen for pursuit of happiness and

excellence. Personal freedom is a basic condition

for full development of human personality. Art.21

of the Constitution protects right to life which is

the most precious right in a civilized society. The

trinity i.e. liberty, equality and fraternity always

blossoms and enlivens the flower of human

dignity. One of the gifts of democracy to mankind

is the right to personal liberty. Life and personal

freedom are the prized jewels under Art.19

conjointly assured by Art.20(3), 21 and 22 of the

Constitution and Art.19 ensures freedom of

movement. Liberty aims at freedom not only from

arbitrary restraint but also to secure such

conditions which are essential for the full

development of human personality. Liberty is the

essential concomitant for other rights without

which a man cannot be at his best. The essence of

all civil liberties is to keep alive the freedom of the

individual subject to the limitations of social

control envisaged in diverse articles in the chapter

of Fundamental Rights Part III in harmony with

social good envisaged in the Directive Principles in

Part IV of the Constitution. Freedom cannot last

long unless it is coupled with order. Freedom can

never exist without order. Freedom and order may

coexist. It is essential that freedom should be

exercised under authority and order should be

enforced by authority which is vested solely in the

executive. Fundamental rights are the means and

directive principles are essential ends in a welfare

State. The evolution of the State from police State

to a welfare State is the ultimate measure and

accepted standard of democratic society which is

an avowed constitutional mandate. Though one of

the main functions of the democratic Government

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is to safeguard liberty of the individual, unless its

exercise is subject to social control, it becomes

anti-social or undermines the security of the State.

The Indian democracy wedded to rule of law aims

not only to protect the fundamental rights of its

citizens but also to establish an egalitarian social

order. The individual has to grow within the social

confines preventing his unsocial or unbridled

growth which could be done by reconciling

individual liberty with social control. Liberty must

be controlled in the interest of the society but the

social interest must never be overbearing to justify

total deprivation of individual liberty. Liberty

cannot stand alone but must be paired with a

companion virtue; liberty and morality; liberty and

law; liberty and justice; liberty and common good;

liberty and responsibility which are concomitants

for orderly progress and social stability. Man being

a rational individual has to life in harmony with

equal rights of others and more differently for the

attainment of antithetic desires. This intertwined

network is difficult to delineate within defined

spheres of conduct within which freedom of action

may be confined. Therefore, liberty would not

always be an absolute license but must arm itself

within the confines of law. In other words, here can

be no liberty without social restraint. Liberty,

therefore, as a social conception is a right to be

assured to all members of a society. Unless

restraint is enforced on and accepted by all

members of the society, the liberty of some must

involve the oppression of others. If liberty be

regarded a social order, the problem of

establishing liberty must be a problem of

organizing restraint which society controls over

the individual. Therefore, liberty of each citizen is

borne of and must be subordinated to the liberty

of the greatest number, in other words common

happiness as an end of the society, lest

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lawlessness and anarchy will tamper social weal

and harmony and powerful courses or forces

would be at work to undermine social welfare and

order. Thus the essence of civil liberty is to keep

alive the freedom of the individual subject to the

limitation of social control which could be adjusted

according to the needs of the dynamic social

evolution.

The modem social evolution is the growing need

to keep individual to be as free as possible,

consistent with his correlative obligation to the

society. According to Dr. Ambedkar in his closing

speech in the Constituent Assembly, the principles

of liberty, equality and fraternity are not to be

treated as separate entities but in a trinity. They

form the union or trinity in the sense that to

divorce one from the other is to defeat the very

purpose of democracy. Liberty cannot be divorced

from equality. Equality cannot be divorced from

liberty. Nor can equality and liberty be divorced

from fraternity. Without equality, liberty would

produce supremacy of law. Equality without liberty

would kill individual initiative. Without fraternity,

liberty and equality would not become a natural

course of things. Courts, as sentinel on the qui

vive, therefore, must strike a balance between the

changing needs of the society for peaceful

transformation with orders and protection of the

rights of the citizen.(Para 374)

9.It was also held in that judgment that the High Courts under

Art.226 had the right to entertain writ petitions for quashing of FIR

and granting of interim protection from arrest. This position, in

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the context of contours of Art.226, is stated as follows in the same

judgment:

“From this scenario, the question

emerges whether the High Court under

Art.226 would be right in entertaining

proceedings to quash the charge-sheet or to

grant bail to a person accused of an offence

under the Act or other offences committed

during the course of the same transaction

exclusively triable by the Designated Court.

Nothing is more striking than the failure of law

to evolve a consistent jurisdictional doctrine

or even elementary principles, if it is subject

to conflicting or inconceivable or inconsistent

result which lead to uncertainty, incongruity

and disbelief in the efficacy of law. The

jurisdiction and power of the High Court under

Art.226 of the Constitution is undoubtedly

constituent power and the High Court has

untrammeled powers and jurisdiction to issue

any writ or order or direction to any person or

authority within its territorial jurisdiction for

enforcement of any of the fundamental rights

or for any other purpose. The legislature has

no power to divest the court of the constituent

power engrafted under Art.226. A superior

court is deemed to have general jurisdiction

and the law presumes that the court has

acted within its jurisdiction. This presumption

is denied to the inferior courts. The judgment

of a superior court unreservedly is conclusive

as to all relevant matters thereby decided,

while the judgment of the inferior court

involving a question of jurisdiction is not final.

The superior court, therefore, has jurisdiction

to determine its own jurisdiction, may be

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rightly or wrongly. Therefore, the court in an

appropriate proceeding may erroneously

exercise jurisdiction. It does not constitute

want of jurisdiction, but it impinges upon its

propriety in the exercise of the jurisdiction.

Want of jurisdiction can be established solely

by a superior court and that in practice no

decision can be impeached collaterally by an

inferior court. However, acts done by a

superior court are always deemed valid

wherever they are relied upon. The exclusion

thereof from the rule of validity is

indispensable in its finality. The superior

courts, therefore, are the final arbiters of the

validity of the acts done not only by other

inferior courts or authorities, but also their

own decisions. Though they are immune from

collateral attack, but to avoid confusion the

superior court’s decisions lay down the rules

of validity; are not governed by those rules.

The valid decision is not only conclusive, it

may affect, but it is also conclusive in

proceedings where it is sought to be

collaterally impeached. However, the term

conclusiveness may acquire other specific

meanings. It may mean that the finding upon

which the decision is founded as distinct or it

is the operative part or has to be conclusive or

these findings bind only parties on litigated

disputes or that the organ which has made

the decision is itself precluded from revoking,

rescinding or otherwise altering it.”

10.It would be pertinent to mention here that in light of above

mentioned statements and cases, the High Court would not be

incorrect or acting out of jurisdiction if it exercises its power under

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Art.226 to issue appropriate writ or direction or order in

exceptional cases at the behest of a person accused of an offence

triable under the Act or offence jointly triable with the offences

under the Act.

11.It is pertinent to mention that though the High Courts have

very wide powers under Art.226, the very vastness of the powers

imposes on it the responsibility to use them with circumspection

and in accordance with the judicial consideration and well

established principles, so much so that while entertaining writ

petitions for granting interim protection from arrest, the Court

would not go on to the extent of including the provision of

anticipatory bail as a blanket provision.

12.Thus, such a power has to be exercised very cautiously

keeping in view, at the same time, that the provisions of Article

226 are a devise to advance justice and not to frustrate it. The

powers are, therefore, to be exercised to prevent miscarriage of

justice and to prevent abuse of process of law by authorities

indiscriminately making pre-arrest of the accused persons. In

entertaining such a petition under Art.226, the High Court is

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supposed to balance the two interests. On the one hand, the

Court is to ensure that such a power under Art.226 is not to be

exercised liberally so as to convert it into Section 438,Cr.P.C.

proceedings, keeping in mind that when this provision is

specifically omitted in the State of Uttar Pradesh, it cannot be

resorted to as to back door entry via Art.226. On the other hand,

wherever the High Court finds that in a given case if the

protection against pre-arrest is not given, it would amount to

gross miscarriage of justice and no case, at all, is made for arrest

pending trial, the High Court would be free to grant the relief in

the nature of anticipatory bail in exercise of its power under Art.

226 of the Constitution. It is again clarified that this power has to

be exercised sparingly in those cases where it is absolutely

warranted and justified.

……………………….J.

(A.K. SIKRI)

New Delhi,

16

th

January 2014