2006 Supreme(All) 1727

[2006(5) ADJ 280 (FB)]
ALLAHABAD HIGH COURT
(Full Bench)
BEFORE : DR. B.S. CHAUHAN, SUSHIL HARKAULI AND
AMAR SARAN, JJ.
AJIT SINGH @ MURAHA ....Petitioner
Versus
STATE OF U.P. AND OTHERS ...Respondents
(Crl. Misc. W.P. No. 4861 of 2000, decided on 5th July, 2006)

Headnote:(A) Arrest—Stay of—During Investigation—Power of arrest—By High Court and quashing of criminal proceedings—Questions referred to larger Bench was that (i) whether arrest during investigation can be stayed by High Court, in rarest of rare cases as observed in Satyapal’s case, or according to criteria laid down by Apex Court in Joginder Kumar’s case, and (ii) whether Full Bench in Satyapal’s case was right in holding that Joginder Kumar’s case was delivered on its own peculiar facts and circumstances, and hence, does not lay down any legal principles, relating to power of arrest and power of stay of arrest by High Court—Held, first part of question No. 1 was answered by holding that Satyapal’s case lays down correct law—So it was approved and affirmed by Court and reiterating same—However, second part of first question, did not require to be answered, as ratio of Joginder Kumar’s case has no application in a case for quashing criminal prosecution—Second question under reference was answered by holding that observations contained in Full Bench decision in Satyapal’s case did not intend to whittle down, or reduce powers of High Court, for staying arrest of an accused person, and for which instant judgment contained reasons explaining intendment of Full Bench judgment therein, i.e., ratio of Joginder Kumar’s case had no application in Satyapal’s case—Therefore, petition liable to be dismissed. [Paras 1, 95, 96, 97 and 98]

       (B) Criminal Procedure Code, 1973—Sections 41, 42, 157, 156, 154 and 482—Arrest—Investigation—Process of—Powers of police—Scope of—Powers of Court, with regard to—Held, generally investigation falls within exclusive domain of Executive—And scope of judicial review was very limited in exceptional cases. [Paras 6, 7, 8, 14 and 15]

       (C) Investigation—Stage of—And initial arrest—Applicability of rule of audi alteram partem—Right of accused—Held, an accused cannot claim a right to notice/hearing before arrest was made. [Paras 16, 17 and 18]

       (D) Arrest—During Investigation—Power of stay of arrest by High Court—And quashing of criminal proceedings—Interference by High Court—Scope under Article 226 of Constitution—Held, arrest was permissible only in case where circumstances of said case so require, and there was a justification for making arrest, otherwise not—Therefore, Court has to examine as to whether investigation was being made in accordance with law—And if it comes to conclusion that investigation was nothing, but a means to harass accused, Court can always interfere with investigation—Therefore, Court was competent to interfere with investigation/arrest only in exceptional case. [Paras 19, 28, 34, 35, 37 and 38]

       (E) Arrest—During Investigation—Power of stay of arrest by High Court—And quashing of criminal proceedings—Interference by High Court—Limitation on examining questions of mala fide in writ petition under Article 226 of Constitution—Held, in case there was sufficient evidence against accused, which may establish charge against him, if bias/mala fide was established, proceedings cannot be quashed. [Paras 39 and 46]

       (F) F.I.R.—Quashing of, because dispute was of civil nature—Powers of interference by High Court—Held, in a given case, there may be civil as well as criminal liability—And Court has to examine facts and circumstances of each case—Nature of agreement reached between parties and terms and conditions, incorporated therein, would be determining factor—However, such a course was permissible where matter was of such a nature that it can be decided only by a Civil Court, and no element of criminal law was involved. [Paras 47, 54 and 55]

       (G) Criminal Procedure Code, 1973—Section 482—Criminal proceedings—Quashing of—Based on evidence collected by investigating agency during investigation—Impermissible—Held, Court was not permitted to consider/examine reliability/genuineness of allegations made in F.I.R., or complaint, at stage of considering a case for quashing criminal proceedings. [Paras 56 and 60]

       (H) F.I.R.—Quashing of—Because of cross-cases—Held, pendency of cross-cases in respect of same incident, cannot be a sole and exclusive ground for interference with criminal proceedings. [Paras 61 and 64]

       (I) Constitution of India, 1950—Article 141—Scope of—Law of precedents—Held, while following judgments of higher Court, Court has to examine whether issue involved in the case in hand, had been decided in the case, sought to be followed—Facts, if found distinguishable, can also tilt position, as in that situation, ratio of judgment may not be applicable. [Paras 65, 72 and 73]

       (J) Interim relief—Granting of—Is permissible when case is pending before the Court—Whether it is permissible for this Court to dispose of the petition on the very first date staying the arrest till charge-sheet is filed—Held, Court has a power to grant interim relief, so long case was pending before it—In a case where writ Court refuses to entertain a petition, and relegates party to some other appropriate Forum, or party itself withdraws writ petition to approach another Forum, as the case did not remain pending before Court, writ Court has no competence to issue any direction protecting right of petitioner interregnum, for reason that writ did not lie for granting only an interim relief, and interim relief could be granted, provided case was pending before Court, and rights of parties were likely to be adjudicated upon on merit—Under garb of seeking quashing of criminal proceedings, relief of anticipatory bail, which was not available in State of U.P., cannot be obtained for reason that a litigant could not be permitted to achieve something indirectly, which could not be sought directly. [Paras 74 and 84]

       (K) Writ petition—Interim relief—Reasoned order needed for interim relief—Held, it was neither desirable nor permissible in law to dispose of a writ petition, granting interim relief without adjudicating upon issues involved therein—Hence, petition was to be decided on merit—However, it may be necessary in facts and circumstances of case that interim relief has to be granted for reason that in facts and circumstances of a case, withholding of interim relief, may tantamount to dismissal of main relief itself, as by the time, case comes for hearing to be decided finally, nothing may be allowed to be granted in favour of petitioner—Therefore, Court has to strike a balance between two extreme positions. [Paras 85 and 87]