2014 (1) TMI 1771 - SC - Indian Laws

Anticipatory bail - invoking jurisdiction of the High Court under Article 226 - Held that - It compulsory for the police to issue a notice in all such cases where arrest is not required to be made under Clause (b) of sub-section (1) of the amended Section 41. But all the same unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued under Section 41A could be a ground for his arrest. Legislation has laid down various parameters warranting arrest of a person which itself is a check on arbitrary or unwarranted arrest and the right to personal liberty guaranteed under Article 21 of the Constitution of India. There is unanimity in the view that in spite of the fact that Section 438 has been specifically omitted and made inapplicable in the State of Uttar Pradesh still a party aggrieved can invoke the jurisdiction of the High Court under Article 226 of the Constitution of India being extraordinary jurisdiction and the vastness of the powers naturally impose considerable responsibility in its application. All the same the High Court has got the power and sometimes duty in appropriate cases to grant reliefs though it is not possible to pin-point what are the appropriate cases which have to be left to the wisdom of the Court exercising powers under Article 226 of the Constitution of India. As also faced with the situation that on dismissal of the writ by the High Court under Article 226 of the Constitution of India while examining the challenge for quashing the FIR or a charge-sheet whether the High Court could grant further relief against arrest for a specific period or till the completion of the trial. The language of Article 226 does not permit such an action and once the Court finds no merits in the challenge writ petition will have to be dismissed and the question of granting further relief after dismissal of the writ does not arise. Consequently once a writ is dismissed all the interim reliefs granted would also go. This Court has already passed an interim order on 1.3.2013 granting bail to the appellant on certain conditions. The said order will continue till the completion of the trial. However if the appellant is not co-operating with the investigation the State can always move for vacating the order. The appeal is accordingly dismissed as above. In appropriate cases the High Court is empowered to entertain the petition under Article 226 of the Constitution of India where the main relief itself is against arrest. Obviously when provisions of Section 438 of Cr. P.C. are not available to the accused persons in the State of Uttar Pradesh under the normal circumstances such an accused persons would not be entitled to claim such a relief under Art. 226 of the Constitution. It cannot be converted into a second window for the relief which is consciously denied statutorily making it a case of casus omissus. At the same time as rightly observed the High Court cannot be completely denuded of its powers under Article 226 of the Constitution to grant such a relief in appropriate and deserving cases; albeit this power is to be exercised with extreme caution and sparingly in those cases where arrest of a person would lead to total miscarriage of justice.

Issues Involved:
1. Quashing of the FIR.
2. Grant of anticipatory bail under Article 226 of the Constitution of India.
3. Compliance with Sections 41(1)(b) and 41A CrPC by the police.
4. Jurisdiction and power of the High Court under Article 226.

Detailed Analysis:

1. Quashing of the FIR:
The appellant sought a writ of certiorari to quash the FIR dated 21.12.2011, alleging fraud and forgery under Sections 419/420 IPC. The High Court dismissed the writ petition, stating that the FIR disclosed a cognizable offence and could not be quashed. The Supreme Court upheld this decision, emphasizing that the FIR contained sufficient grounds for investigation and did not warrant quashing.

2. Grant of Anticipatory Bail under Article 226:
The appellant argued that the High Court failed to exercise its certiorari jurisdiction properly and should have granted anticipatory bail. The Supreme Court reiterated that anticipatory bail is not a statutory right in Uttar Pradesh, following the deletion of Section 438 CrPC by the state legislature. The Court referenced the Constitution Bench decision in Kartar Singh v. State of Punjab, which upheld the deletion as valid under Article 254(2) of the Constitution. The Court concluded that anticipatory bail could only be granted in "rarest of rare cases" under Article 226, emphasizing judicial discipline and comity of courts.

3. Compliance with Sections 41(1)(b) and 41A CrPC by the Police:
The appellant contended that the police failed to comply with the amended provisions of Sections 41(1)(b) and 41A CrPC, which require recording reasons for arrest and issuing a notice for appearance. The Supreme Court noted that these provisions aim to prevent arbitrary arrests and protect personal liberty under Article 21 of the Constitution. The Court highlighted that the police must follow these statutory requirements, ensuring that arrests are made only when necessary and justified.

4. Jurisdiction and Power of the High Court under Article 226:
The Supreme Court examined whether the High Court could grant relief against arrest under Article 226 after dismissing a writ petition challenging the FIR. The Court cited State of Orissa v. Madan Gopal Rungta, stating that interim relief under Article 226 can only be ancillary to the main relief. Once the writ petition is dismissed, granting further relief, such as protection against arrest, is not permissible. The Court emphasized that the High Court's power under Article 226 should be exercised sparingly and only in extraordinary cases to prevent miscarriage of justice.

Separate Judgment:
Justice A.K. Sikri concurred with the conclusions but added observations on the High Court's powers under Article 226. He emphasized that while the High Court can grant relief against arrest in exceptional cases, it must balance the need to prevent miscarriage of justice with the legislative intent of omitting Section 438 CrPC in Uttar Pradesh. Justice Sikri reiterated that this power should be exercised with extreme caution and only when absolutely warranted.

Conclusion:
The Supreme Court dismissed the appeal, upholding the High Court's decision to not quash the FIR and denying anticipatory bail. The Court underscored the limited and cautious exercise of powers under Article 226, emphasizing compliance with statutory provisions to protect personal liberty and prevent arbitrary arrests.

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