2002 Supreme(SC) 1283

2003(1) Supreme 126
SUPREME COURT OF INDIA
(From Bombay High Court)
N. Santosh Hegde & B.P. Singh, JJ.
M.C. Abraham & Anr. -Appellants
versus
State of Maharashtra & Ors. -Respondents
Criminal Appeal Nos. 1346-47 of 2002
(Arising out of SLP (Crl.) Nos. 231-232 of 2002)
With
Criminal Appeal Nos. 1348-49 of 2002
(Arising out of SLP (Crl.) Nos. 301-302 of 2002)
With
Criminal Appeal Nos. 1350-51 of 2002
(Arising out of SLP (Crl.) Nos. 310-311 of 2002)
With
Criminal Appeal No. 1352 of 2002
(Arising out of SLP (Crl.) No. 868 of 2002)
Decided on 20-12-2002
Counsel for the Parties :
For the Appellants : R.F. Nariman, Sr. Advocate, M.N. Upadhyay, Ms. Meenakshi Orgra and Jay Savla, Advocates.
For the Respondents : R.B. Masodkar, S.S. Shinde, V.N. Raghupathy, V.R. Mundra, Jai Mangalwadi, Niraj Sharma and B.V. Balram Das, Advocates.

IMPORTANT POINT
In writ jurisdiction High Court cannot direct the State to arrest the appellants charged for offences under Sections 406 and 409/34 IPC nor can it direct the investigating agency to submit a charge sheet.

Headnote:Indian Penal Code, 1860-Sections 406 and 409/34-Complaint by Provident Fund Commissioner against the Directors of MAPL alleging offences under Sections 406 and 409/34 IPC-Anticipatory Bail applications under Section 438 Cr.P.C. rejected-Writ petitions against the State to act on the complaint-High Court directing State to arrest the directors of MAPL and directing investigating agency to submit a charge sheet-Appeals to Supreme Court-Whether High Court was right in its approach? (No) (Cr.P.C. 1973)-Section 41-Police power to arrest without warrant) (Section 190 of Cr.P.C. 1973) r/w 173(8).

       Held : Counsel for the appellants submitted before us that the orders dated 10th January, 2002 and 11th January, 2002 result in unjustified interference with the investigation of the case, and having regard to the well defined para-meters of judicial interference in such matters, the directions made by the High Court deserve to be quashed. He submitted that the High Court in exercise of its writ jurisdiction, cannot direct the investigating officer or the State to arrest the accused in a case which is still at the stage of investigation, nor can it direct the investigating agency to submit a report before the Magistrate as directed by the High Court. We find considerable force in the submission urged on behalf of the appellants. (Para 9)

       Held (after case law) : Tested in the light of the principles aforesaid, the impugned orders dated 10th January, 2002 and 11th January, 2002 must be held to be orders passed by over-stepping the para-meters of judicial interference in such matters. In the first place, arrest of an accused is a part of the investigation and is within the discretion of the investigating officer. Section 41 of the Code of Criminal Procedure provides for arrest by a police officer without an order from a Magistrate and without a warrant. (Para 13)

       In such a case there was no justification for the High Court to direct the State to arrest the appellants against whom the first information report was lodged, as it amounted to unjustified interference in the investigation of the case. The mere fact that the bail applications of some of the appellants had been rejected is no ground for directing their immediate arrest. In the very nature of things, a person may move the Court on mere apprehension that he may be arrested. The Court may or may not grant anticipatory bail depending upon the facts and circumstances of the case and the material placed before the Court. There may, however, be cases where the application for grant of anticipatory bail may be rejected and ultimately, after investigation, the said person may not be put up for trial as no material is disclosed against him in the course of investigation. The High Court proceeded on the assumption that since petitions for anticipatory bail had been rejected, there was no option open for the State but to arrest those persons. This assumption, to our mind, is erroneous. A person whose petition for grant of anticipatory bail has been rejected may or may not be arrested by the investigating officer depending upon the facts and circumstances of the case, nature of the offence, the background of the accused, the facts disclosed in the course of investigation and other relevant considerations. (Para 14)

       Held consequently : We have, therefore, no doubt that the order dated 10th January, 2002, in so far as it directs the arrest of the appellants, must be set aside. So far as the order dated 11th January, 2002 is concerned, it gives an impression that the High Court has held that it was not open to the investigating officer, in view of the order passed by the High Court dated 7th September, 2001 rejecting the anticipatory bail petitions of some of the appellants, to treat the case as C summary as it has been found that no funds had been misappropriated. By the impugned order dated 16th January, 2002 the High Court has in fact shown its anxiety to see that the "State expeditiously conclude the investigation in the case and file charge-sheet". (Para 15)