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IN THE HIGH COURT OF ALLAHABAD
S. R. SINGH, R. K. DASH
V.S.KRISHNAN - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
CRI. M. W. P. 2148 Of 2000
Decided On : 05/25/2000
CRIMINAL PROCEDURE CODE - SECTION 41 - ARREST - POWER OF POLICE - GUIDELINES - SECTION 154 - REGISTRATION OF FIR - SECTION 156 - INVESTIGATION - SECTION 157 - INVESTIGATION - PROCEDURE - SECTION 2(C) - COGNIZABLE OFFENCE - SECTION 190 - MAGISTRATE'S POWER TO ORDER INVESTIGATION - ARTICLE 21 - RIGHT TO PERSONAL LIBERTY - ARTICLE 226 - WRIT JURISDICTION OF HIGH COURT - SCOPE - ARTICLE 14 - EQUALITY BEFORE LAW - ARTICLE 22(2) - ARREST AND DETENTION - TIME LIMIT - SECTION 360 - PROBATION OF OFFENDERS ACT - SECTION 361 - REASONS FOR NOT RELEASING OFFENDER ON PROBATION - SECTION 307 - ATTEMPT TO MURDER - SECTION 324 - VOLUNTARY CAUSING HURT BY DANGEROUS WEAPONS OR MEANS - SECTION 325 - VOLUNTARY CAUSING GRIEVOUS HURT - SECTION 354 - ASSAULT OR CRIMINAL FORCE TO WOMAN WITH INTENT TO OUTRAGE HER MODESTY - SCHEDULED CASTES AND SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT, 1989 - SECTION 3 - PUNISHMENT FOR OFFENCES OF ATROCITIES.
Fact of the Case:
The petitioners, directors of a financial company, approached the High Court seeking a writ of certiorari to quash the first information report (FIR) registered against them for offenses under Sections 420, 467, 468, 471, and 504 of the Indian Penal Code (IPC). They alleged that the FIR was filed with mala fide intentions and that the police were harassing them by registering multiple cases based on the same set of allegations. The petitioners also raised concerns about the police's power to arrest and the need for guidelines to ensure that the power is exercised reasonably and not arbitrarily.
Finding of the Court:
The High Court held that the power of investigation and arrest of a cognizable offense is exclusively within the domain of the police and that the Court would not be justified in interfering with the same in exercise of its extraordinary writ jurisdiction under Article 226 of the Constitution. However, the Court clarified that if the Court is convinced that there is no motion or slow motion in the investigation or that the investigation is not free and fair, it would be competent to issue necessary direction to the police officer to proceed with the investigation in order to bring the offender to book. The Court also held that the power of arrest is not unfettered and that the police cannot arrest a person accused of a cognizable offense merely because they have the power to do so. The Court laid down guidelines for the exercise of the power of arrest, including the need to consider the gravity of the offense, the likelihood of the accused absconding, the criminal antecedent of the accused, and the need to prevent repetition of crimes.
Issues: 1. Whether the High Court can interfere with the power of investigation and arrest of a cognizable offense by the police under Article 226 of the Constitution? 2. Whether the power of arrest is unfettered and can be exercised arbitrarily by the police? 3. What are the guidelines for the exercise of the power of arrest by the police?
Ratio Decidendi: 1. The power of investigation and arrest of a cognizable offense is exclusively within the domain of the police and the Court would not be justified in interfering with the same in exercise of its extraordinary writ jurisdiction under Article 226 of the Constitution. 2. The power of arrest is not unfettered and the police cannot arrest a person accused of a cognizable offense merely because they have the power to do so. 3. The guidelines for the exercise of the power of arrest by the police include the need to consider the gravity of the offense, the likelihood of the accused absconding, the criminal antecedent of the accused, and the need to prevent repetition of crimes.
Final Decision: The High Court disposed of the petition by directing the Investigating Officer to proceed with the investigation and take it to its logical end, but the arrest of the petitioners shall not be effected till submission of the report under Section 173 of the Code of Criminal Procedure, provided they cooperate with the investigation and make themselves available for interrogation as and when required by the Investigating Officer.
( 1 ) IN this petition under Art. 226 of the Constitution of India, the petitioners have prayed for issuance of writ of certiorari to quash the first information report in case crime No. 839 of 1999 under Sections 420/467/468/471/504, I. P. C. registeired at Police Station Sector- 20, Noida district Gautam Budh Nagar. A further prayer has been made directing the police not to arrest the petitioners in the aforesaid case.
( 2 ) THE factual aspect of the case emerging from the averments made in the writ petition as also the copy of the first information report annexed therewith is that petitioners No. 1 and 2, related as husband and iwfe are the Directors of Maha Vishnu Financial Services Limited, Chennai (for short the company" ). Dr. Purshottam Lal, respondent No. 4, while working in Apollo Hospital, Chennai had advanced loan of rupees fifty lacs to the financial company and subsequently a further sum of fifty lacs from his deposits in the Canara Bank, Villivakkam Branch, Chennai. Thus, the total loan availed of by the company amounted to one crore. It is alleged by the petitioners that S. Xavier, the Director of the company who was actively involvled in the day to day affairs of the company, indiscriminately advanced money to the tune of several lacs to his friends and others knowing fully well that they would not be in a position to repay the same. In due course the company sustained huge financial loss on account of which it was unable to discharge its financial liabilities to respondent No. 4. During the year 1996-97 the company repaid a sum of Rs. 28. 5 lacs, to respondent No. 4 by means of demand drafts and in respect of the rest unpaid amount, on the petitioners issued post dated chequess which on presentation were dishonoured. The respondent No. 4, therefore, filed two complaint cases before the Metropolitan Magistrate, Egmore, Chennai under Section 138 of the Negotiable Instruments Act. Later on he also filed as many as ten such cases against them and other Directors of the company in the courts of Ghaziabad and Gautam Budh Nagar under Section 138 of the Negotiable Instruments Act and Section 420, IPC In all the complaint cases it is alleged, the allegations are the same and similar in nautre, inasmuch, as the cheques issued to respondent No. 4 on different dates were dishonoured. The Court in all these cases having taken cognizance of the offence under Section 138 of the Negotiable Instruments Act have issued summons for their appearance. The sole intention of filing large number of cases by the respondent No. 4 was to get the petitioners arrested and put them behind the prison bar and as they on their appearance were released on bail by the Cheenai Court, he in connivance with the local police of Noida lodged the impugned first information report making the selfsame allegations with certain improvements which are manifestly false and concocted with a view to pressurise them to satisfy his demand of exorbitant interest which was never agreed to between the parties. The lodging of the said report being mala fide and with oblique motive, contend the petitioners, the Court in exercise of its extra ordinary writ jurisdiction under Art. 226 of the Constitution of India should quash the said first information report at the thereshold.
( 3 ) SRI A. D. Giri, learned Senior counsel appearing for the petitioners has argued with skill and adroitness that on the facts and circumstances it is a fit case where the Court should in exercise of its extra ordinary jurisdiction conferred by Art. 226 of the Constitution should come to the help of the petitioners in order to save them from police harassments. Elaborating the submissions Sri Giri has urged that the cheques issued to Dr. Purushottam Lal, respondent No. 4 have been returned dishonoured by the Bank on presentation, complaints have been filed and cognizance of the offence under Section 138 of the Negotiable Instruments Act has been taken and the petitioners hav
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