( 1 ) LEARNED Government Counsel may file counter affidavit within a month.

( 2 ) ISSUE notice to respondent No. 4 returnable at an early date.

( 3 ) UNTIL further order of this Court we stay the arrest of the petitioner in Case Crime No. 214 of 2001, under Sections 409, 420, 468, 467 and 471, I. P. C. Police Station Sadar Bazar, District Mathura but the investigation may go on.

( 4 ) WE have heard Sri S. P. Singh, General Secretary of the High Court Bar Association as Amicus Curiae, in this case.

( 5 ) THE petitioner Vijai Kumar Verma is a Government Servant posted in the U. P. Police Department as Sub Inspector (Ministerial)/head Clerk in the office of the Superintendent of Police, Hathras. By means of this writ petition the petitioner is challenging the impugned F. I. R. filed against him. This F. I. R. states that certain appointment under Dying in Harness Rules was obtained by playing some fraud in which the petitioner was also involved. The petitioner claims that he is innocent and has been falsely implicated. The only allegation against him in the impugned F. I. R. is that he did not make proper verification of the documents relating to the appointment made under the Dying in Harness Rules.

( 6 ) IT has been held by the Supreme Court in Joginder Kumar v. State of U. P. , AIR 1994 SC 1349. "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 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 Office in the interest of protection of the constitutional right 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 persons complicity and even 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 reflects the constitutional concomitants of the fundamental right to person liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be a 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 person to attend the Station House and not to leave Station without permission would do.

( 7 ) DESPITE this categorical judgment of the Supreme Court it appears that the police is not at all implementing it. What invariably happens is that whenever an F. I. R. of a cognizable offence is lodged the police immediately goes to arrest the accused person. This is clear violation of the aforesaid judgment of the Supreme Court.

( 8 ) THOUSAND of writ petitions and Section 482, Cr. P. C. applications are being filed in this Court praying for stay of the petitioners arrest. This is unnecessarily increasing the work load of this Court and adding to the arrears.

( 9 ) IN our opinion the problem will be obviated by restoring the provision for anticipatory bail which was contained in Section 438, Cr. P. C. but was deleted in U. P. by Section 9 of U. P. Act, 16 of 1976.

( 10 ) IT is surprising that the provision for anticipatory bail should be deleted in this State although it exists in all other States in India, even in terrorist affected States. We do not understand why this provision should not exit in U. P. also.

( 11 ) AS pointed out in Balchand Jain v. State of Madhya Pradesh, AIR 1977 SC 366, the provision for anticipatory bail was included in the

Click Here to Read the rest of this document