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IN THE HIGH COURT OF ALLAHABAD
PALOK BASU, G. P. MATHUR, S. RAFAT ALAM, JJ.
SATYA PAL - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
CRI. M. W. P. 5795 Of 1998
Decided On : 09/17/1999
CRIMINAL PROCEDURE CODE - SECTION 154, 157, 173, 482 - ARTICLE 226 - WRIT PETITION - QUASHING OF FIR - STAY OF ARREST - INFORMANT AS NECESSARY PARTY - INVESTIGATION - INTERFERENCE BY HIGH COURT - GUIDELINES - POWER OF ARREST - INHERENT POWERS OF HIGH COURT - SCOPE AND LIMITATIONS - DIVISION BENCH DECISIONS - CORRECTNESS - HELD: (1) Informant is a necessary party in a writ proceeding seeking quashing of FIR and should be afforded an opportunity of hearing before passing the final order. (2) Where the petition challenging the FIR prima facie satisfies the exercise of that extraordinary power by the Court, it shall be necessary for the Court to direct the investigating agency to file affidavit countering the allegations in the petition. (3) The Division Bench decision in the case of Shamsul Islam alias Afram v. State of U.P. and others, lays down the correct law. This Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution, is not debarred from granting any interim relief by way of stay of arrest during the pendency of the writ petition to prevent miscarriage of justice and to protect the life and liberty as guaranteed under Articles 21 and 22 of the Constitution.
Fact of the Case:
Petitioners sought issuance of a writ of certiorari for quashing the FIR dated 27-9-1998 on the basis of which Crime No. 798 of 1998 under Sections 420, 467, 468 and 471, I.P.C. was registered at Police Station Noida, Gautam Buddha Nagar, on several grounds stated in the petition apart from citing as precedence the order dated 3-11-1998 of a Division Bench of this Court in Mahesh Yadavs writ petition. The Division Bench disposed of the writ petition on that very date, i.e. 3-11-1998 with the direction that the petitioners therein shall not be arrested in the aforesaid Case Crime No. 798 of 1998 under Sections 420, 467, 468 and 471, I.P.C. until submission of the report under Sections 173, Cr.P.C. subject to their full co-operation in investigation.
Finding of the Court:
1. Informant is a necessary party in a writ proceeding seeking quashing of FIR and should be afforded an opportunity of hearing before passing the final order. 2. Where the petition challenging the FIR prima facie satisfies the exercise of that extraordinary power by the Court, it shall be necessary for the Court to direct the investigating agency to file affidavit countering the allegations in the petition. 3. The Division Bench decision in the case of Shamsul Islam alias Afram v. State of U.P. and others, lays down the correct law. This Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution, is not debarred from granting any interim relief by way of stay of arrest during the pendency of the writ petition to prevent miscarriage of justice and to protect the life and liberty as guaranteed under Articles 21 and 22 of the Constitution.
Issues: 1. Whether the person lodging a First Information Report (F.I.R.) with police regarding an offence or a crime has to be heard as necessary party before deciding a writ petition by an accused under Article 226 of the Constitution of India in this Court for quashing the said F.I.R. and whether the writ petition at the admission stage can be finally disposed of with the direction of stay of arrest of petitioner without inviting counter-affidavit from the informant and the investigating agency even when the F.I.R. discloses prima facie cognizable offence? 2. Whether or not before passing the final order notice should be issued and reply should be called from the State, which is the controlling investigating agency for all investigations in the State of U.P. , or any other agency in the State of U.P. , though may be controlled by the Union of India for the time being, which may be investigating such an offence? 3. Which of the two Division Bench decisions referred to above lays down the correct law?
Ratio Decidendi: 1. The provisions of the Code of Criminal Procedure, 1973, Chapter XII, Sections 154, 157, 173 and 482, and Article 226 of the Constitution of India were examined to determine the scope of interference by the High Court in exercise of its extraordinary power under Article 226 of the Constitution or its inherent power under Section 482 of the Code with the investigation of a cognizable offence. 2. It was held that where the allegations in the FIR taken at the face value and accepted in entirety, do not constitute any cognizable offence; the FIR and the investigation thereon may be quashed. 3. However, upon consideration of relevant materials if the Court is satisfied and no offence is disclosed, it will be the duty of the Court to interfere with investigation so that the alleged accused may not be unnecessarily subjected to harassment and humiliation. 4. The power of arrest and its exercise by police, as compared with the life and personal liberty of a person which is protected under Article 21 of the Constitution, was considered and it was held that arrest is part of investigation, the police or the investigating agency has every authority to investigate a case where cognizable offence has been reported. But while exercising power of arrest they are required to be satisfied about the genuineness and bona fides of the allegations of the complaint and about the necessity of arrest of the person concerned. 5. In appropriate cases if this Court is convinced that the power of arrest will be exercised wrongly or mala fidely or in violation of Section 41 (1) (a) of the Code, writ of mandamus can be issued restraining the police from misusing its legal power.
Final Decision: 1. Informant is a necessary party in a writ proceeding seeking quashing of FIR and should be afforded an opportunity of hearing before passing the final order. 2. Where the petition challenging the FIR prima facie satisfies the exercise of that extraordinary power by the Court, it shall be necessary for the Court to direct the investigating agency to file affidavit countering the allegations in the petition. 3. The Division Bench decision in the case of Shamsul Islam alias Afram v. State of U.P. and others, lays down the correct law. This Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution, is not debarred from granting any interim relief by way of stay of arrest during the pendency of the writ petition to prevent miscarriage of justice and to protect the life and liberty as guaranteed under Articles 21 and 22 of the Constitution.
( 1 ) WHETHER the person lodging a First Information Report (F. I. R.) with police regarding an offence or a crime has to be heard as necessary party before deciding a writ petition by an accused under Article 226 of the Constitution of India in this Court for quashing the said F. I. R. and whether the writ petition at the admission stage can be finally disposed of with the direction of stay of arrest of petitioner without inviting counter-affidavit from the informant and the investigating agency even when the F. I. R. discloses prima facie cognizable offence are the core questions in this reference which are of great significance and far reaching consequences as large number of writ petitions are filed in this Court for quashing of F. I. R. and stay of arrest.
( 2 ) PETITIONERS, Satya Pal and others have sought issuance of a writ of certiorari for quashing the F. I. R. dated 27-9-1998 on the basis of which Crime No. 798 of 1998 under Sections 420, 467, 468 and 471, I. P. C. was registered at Police Station Noida, Gautam Buddha Nagar, on several grounds stated in the petition apart from citing as precedence the order dated 3-11-1998 of a Division Bench of this Court in Mahesh Yadavs writ petition.
( 3 ) MAHESH Yadav, brother of petitioner Satya Pal filed Writ Petition No. 4658 of 1998 for quashing the very same F. I. R. before a Division Bench (of which one of us, S. Rafat Alam, J. was a member), which disposed of the writ petition on that very date, i. e. 3-11-1998 with the direction that the petitioners therein shall not be arrested in the aforesaid Case Crime No. 798 of 1998 under Sections 420, 467, 468 and 471, I. P. C. until submission of the report under Sections 173, Cr. P. C. subject to their full co-operation in investigation.
( 4 ) WHEN the instant writ petition came up for admission before a Division Bench (comprising one of us, Justice Palok Basu and Honble Mr. Justice P. K. Jain), two points emerged, first, whether the informant was required to be given notice before any relief could be granted by way of final order as was done by the earlier Division Bench on 3-11-1998 without providing an opportunity of filing counter-affidavit to the informant or the investigating agency, and second, whether the order of the Division Bench dated 3-11-1998 was contrary to the view taken of another Division Bench in Writ Petition No. 2588 of 1998 (Reported in 1999 (38) All Cri C 315) (Shamsul Islam alias Afroz v. State of U. P. and others), (in which one of us, Honble G. P. Mathur, J. was a member ). It has been held in Shamsul Islams case that if the Court is of the opinion that the F. I. R. discloses commission of a cognizable offence and there are no grounds for quashing the same, no direction for staying the arrest of the accused can be issued. Therefore, noticing the directly conflicting views the following questions were formulated by the said Division Bench for decision by a larger Bench. (1) In case a cognizable report was lodged by an informant and during investigation accused come up with some or other reliefs through writ petition to the High Court, the informant should be made a party and heard before any final orders are passed in the aforesaid writ petition? (2) Whether or not before passing the final order notice should be issued and reply should be called from the State, which is the controlling investigating agency for all investigations in the State of U. P. or any other agency in the State of U. P. , though may be controlled by the Union of India for the time being, which may be investigating such an offence? (3) Which of the two Division Bench decisions referred to above lays down the correct law?
( 5 ) UNDER the orders of the Honble the Chief Justice, this Full Bench has been constituted for resolving the conflict and answer the three questions noted above.
( 6 ) WE have heard Sri Ravindra Rai learned counsel for the petitioners and the learned Government Advocate appearing for the State-resp
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