2014 Supreme(SC) 31

Supreme Court of India
K.S. RADHAKRISHNAN & A.K. SIKRI, JJ.
Km. Hema Mishra – Appellant
Versus
State of U.P. & Others – Respondent
Criminal Appeal No. 146 of 2014 [Arising out of SLP (Crl.) No. 7439 of 2013)
Decided On : 16-01-2014

IMPORTANT POINT(As per K. S. Radhakrishnan, J.)
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.
IMPORTANT POINT (As per A.K.Sikri,J.)
An order of anticipatory bail does not in any way, directlyor indirectly; take away for the police their right to investigate intocharges made or to be made against the person released on bail.
2. Though the High Courts have very widepowers under Art.226, the very vastness of the powers imposes on it theresponsibility to use them with circumspection and in accordance with thejudicial consideration and well established principles, so much so thatwhile entertaining writ petitions for granting interim protection fromarrest, the Court would not go on to the extent of including the provision of anticipatory bail as a blanket provision.

Headnote:As per K. S. Radhakrishnan, J.

        Constitution of India ,1950- Article 226-Criminal Procedure Code,1973-Amended proviso to Sections 41(1)(b) read with Section 41A-Registeration of case under Sections 419/420 IPC against appellant-Writ petition filed by appellant seeking a direction in the nature of Mandamus directing opposite parties, 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-Writ petition dismissed by High Court-Appeal-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 High Court under Article 226 of the Constitution , 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 wisdom of the Court exercising powers under Article 226 of the Constitution of India (Para 23)

        Constitution of India ,1950- Article 226-Criminal Procedure Code,1973-Amended proviso to Sections 41(1)(b) read with Section 41A-Registeration of case under Sections 419/420 IPC against appellant-Writ petition filed by appellant seeking a direction in the nature of Mandamus directing opposite parties, 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-Writ petition dismissed by High Court-Appeal-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 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-Appeal dismissed (Paras 20 to 25)

       Facts of the Case :

        A.A case was registered under Sections 419/420 IPC against appellant herein in the instant case. Writ petition was filed by appellant seeking a direction in the nature of Mandamus directing opposite parties, 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. Said Writ petition was dismissed by High Court.

        B. Present Appeal has been filed against said order of High Court.

       Findings of the Court :

        The Supreme Court Held 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 High Court under Article 226 of the Constitution , 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 wisdom of the Court exercising powers under Article 226 of the Constitution of India.

        The Supreme Court further held that 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 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.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. Appeal wasdismissed

       Result : Appeal dismissed

       As per A.K.Sikri,J.

        Constitution of India, 1950- Article 226-Criminal Procedure Code,1973-Amended proviso to Sections 41(1)(b) read with Section 41A-Registeration of case under Sections 419/420 IPC against appellant-Writ petition filed by appellant seeking a direction in the nature of Mandamus directing opposite parties, 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-Writ petition dismissed by High Court-Appeal-High Court would not be incorrect oracting out of jurisdiction if it exercises its power under Art.226 to issue appropriate writ or direction or order in exceptional cases at the behestof a person accused of an offence triable under the Act or offence jointlytriablewith the offences under the Act-Such a power has to be exercised very cautiously keeping inview, at the same time, that the provisions of Article 226 are a devise toadvance justice and not to frustrate it- The powers are, hence , to beexercised to prevent miscarriage of justice and to prevent abuse of processof law by authorities indiscriminately making pre-arrest of the accused persons (Paras 10 to 12)

       Facts of the case :

        A.A case was registered under Sections 419/420 IPC against appellant herein in the instant case. Writ petition was filed by appellant seeking a direction in the nature of Mandamus directing opposite parties, 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. Said Writ petition was dismissed by High Court.

        B. Present Appeal has been filed against said order of High Court.

       Findings of the Court :

        In entertaining such a petition under Art.226, High Court issupposed to balance the two interests. On the one hand, the Court is toensure that such a power under Art.226 is not to be exercised liberally soas to convert it into Section 438,Cr.P.C. proceedings, keeping in mind thatwhen 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 otherhand, wherever the High Court finds that in a given case if the protectionagainst pre-arrest is not given, it would amount to gross miscarriage ofjustice and no case, at all, is made for arrest pending trial, the HighCourt would be free to grant the relief in the nature of anticipatory bailin exercise of its power under Art. 226 of the Constitution.It isagainclarified that this power has to be exercised sparingly in those caseswhere it is absolutely warranted and justified

       Result : Appeal dismissed