Important Points1. Even if cognizable offence is disclosed in FIR, arrest of accused is not a must and police should be guided by Supreme Court judgment in Joginder Kumar case.2. High Court should ordinarily not direct any subordinate Court to decide bail application on same day.

Headnote:i) Criminal Procedure Code, 1973 — Sections 41, 2(C), 157 — Cognizable offence — Whether police must arrest the accused ? No — Definition of cogni-zable offence indicates that police officer “may” arrest without warrant and not “must” arrest — Word “may” could not be interpreted as “must” or “shall”. (Paras 13 to 19)
       (ii) Criminal Procedure Code, 1973 — Sections 437 and 439 — Bail — Whether High Court could direct subordinate Court to decide the bail application on the same day it is filed ? No — Matter should be left to the discre-tion of Judge hearing bail application.
       Held: There may be cases, for instance, where a totally false and frivolous F.I.R. has been filed against a judicial or administrative officer or a reputed citizen merely because of enmity or to damage his reputation or to black-mail him. If the hearing of the bail application is adjourned even for a few days he will have to remain in jail and his reputation may be irreparably tarnished, even if subsequently he is granted bail. In our opinion the learned Judge hearing the bail application, in his discretion, may in such a case give a very short time for the hearing after notice is given to the Public Prosecutor, and he may, in his discretion hear the bail application under Section 439 on the same day when it is filed. After all, giving notice merely means giving copy of the bail application to the Public Prosecutor so that he may have an opportunity to be heard in reply and place the material facts before the Court. There may be cases where the learned Judge hearing the bail application under Section 439 may, if he chooses, give a very short time to the Public Prosecutor after the bail appli-cation is filed and notice is given, and do the hearing the same day only after a short time of giving of the notice. The Learned Judge can always get the record from the Court of the learned Magistrate where the entire papers are already available. Also, sometimes it may not be practicable to give notice at all and for this purpose the hearing can be done after recording reasons for waiving the notice, as mentioned in the proviso of Section 439 (1). On the other hand, there may be cases where the learned Judge may feel that in view of the seriousness of the offence or other factors a longer time should be given to the Public Prose-cutor before hearing the bail application. In all such cases in our opinion the matter should be left to the discretion of the learned Judge hearing the bail application and a direction for deciding the bail on the same day should not ordinarily be given by this Court as that would be interfering in his discretion. (Para 35)
       (iii) Criminal Procedure Code, 1973 — Sections 437 and 439 — Bail — Power to grant interim bail is implicit in power to grant bail. (Para 37)
       Result : Reference answered accordingly.

ORDER

Imtiyaz Murtaza, J. — This Full Bench is constituted to consider the following questions:

1. Whether the arrest of an accused is a must if cogni-zable offence is disclosed in

the F.I.R. or in a criminal complaint;

2. Whether the High Court can direct the subordinate Courts to decide the Bail Application on the same day it is filed; and

3. Whether the case Dr. Vinod Narain v. State of U.P.1 Writ Petition No. 3643 of 1992 has been correctly decided by the five Judge Full Bench of this court.

2. In the case of Dr. Vinod Narain (Writ Petition No. 3643 of 1992) it was held: “For the reasons recorded separately this Full Bench unanimously holds that in exercise of power under Article 226 of the Constitution, while issuing direction and command to the Magistrate or the Court of Sessions as the case may be, to consider the bail application time schedule for concluding the bail proceedings cannot be fixed. Consequently, the decision rendered in Dr. Hidayat Hussain Khan v. State of U.P.2 is overruled and the decision rendered in Noor Mohd. v. State of U.P. and others3 is upheld,”

3. In the same judgment Hon’ble Palok Basu, J. observed (in paragraph 183):

“Once disclosure of cognizable offence is made, arrest of the accused or suspect is a “must” for there is no other known method by which he may be brought before the Court for trial. The words “if necessary” in Section 157 may at best make available a discretion to an Investigating Officer in a given case to defer arresting an accused or suspect if there is reasonable doubt about his identity. It is not possible to subscribe to the view that

the word ‘arrest’ is made discretionary or that any other connotation may be extendable than what is noted in the preceding lines.”

4. We have heard Shri V.P. Srivastava, Shri S.P.S. Raghav, Shri Satish Trivedi, Shri Viresh Mishra, Shri D.S. Mishra and Pt. P.N. Misra, learned Advocates at length and the learned Government Advocate for the State and have perused the judgment of the Full Bench passed in Writ Petition No. 3643 of 1992 Dr. Vinod Narain v. State of U.P.

5. First we shall consider the question whether the arrest of the accused is a must if a cognizable offence is disclosed in the F.I.R. or in the complaint.

6. Article 21 of the Constitution of India guarantees to every man, be he a citizen or a foreigner, that he shall not be deprived of his life or personal liberty except in accordance with the procedure established by law. Article 21 states:

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

7. It may be mentioned that in A.K. Gopalan v. Union of India4, it was held that to deprive a person of life or liberty all that was required was that the provisions of the I.P.C. and Cr.P.C. or some statute are to be followed, but it was not necessary that those provisions must be reasonable, fair and just. In other words, it was held in Gopalan’s case (Supra) that Articles 21 and 19 are mutually exclusive, and hence the reasonability test in Article 19 of the Constitution is not to be applied when testing a law on the anvil of Article 21. Thus Article 21 was construed in Gopalan’s case only as a guarantee against executive action unsupported by statutory law.

8. However, subsequently in Maneka Gandhi v. Union of India5, a Seven Judge Constitution Bench decision of the Supreme Court overruled the earlier decision in A.K. Gopalan’s case (Supra) and held that the procedure to deprive a person of life or liberty must be fair, reasonable and just. Thus the expression “procedure established by law” in Article 21 has been judicially construed as meaning a procedure which is reason-able, fair and just. Subsequent to Maneka Gandhi’s case in a series of decisions the Supreme Court has considerably expanded the scope of Article 21 of the Constitution, and has held that the word ‘life’ in Article 21 means a life of dignity as a civilized human being and not just ani

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