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TMI Blog1993 (8) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... ns relating to the maintenance of the rate board are not applicable to him in view of some Division Bench decision of this Court. For that matter, it may be mentioned that the Division Bench decision or for that matter any decision of the superior Court are to be followed by the Courts of law as and when the proceedings come before them. 3. We have heard the learned counsel for the petitioner and standing counsel Sri R. S. Sengar at some length and we propose to dispose of the petition finally with the following observations. 4. It has been urged on behalf of the petitioner that this Court is the protector of life and personal liberty of an individual citizen under Article 21 of the Constitution of India and for that matter, can issue writs under Article 226 of the Constitution of India. This Court is not the protector of the liberty but is custodian of the Constitution and the two are poles apart from each other. If the Courts were to act as protectors of the rights, there would be no duty left for all other functionaries and public servants in the State. The respect of the Constitution is the primary requirement and if that is trodden upon by any functionary, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for any other purpose. The question is whether this Court can while observing that the petition has no force may also say that a particular method shall be adopted in dealing with an individual case or client. The authority given to Courts under the Article has to exercised with restraint and it is not supposed that the power would be exercised for any fanciful purpose according to the whims of any individual . may be that the limitations in this behalf cannot be defined but it is quite evident that the power should not be exercised arbitrarily, capriciously or indiscriminately. The limitation can to some extent be summarized with reference to the cases of Olga Tellis v. Bombay Corporation, and , Naresh v. State of Maharashtra and Janardhan Reddi v. State of Hyderabad (e) in the following form. 6. The jurisdiction of the Supreme Court under Article 32 or of a High Court under Article 226 to enforce a fundamental right arises where a fundamental right of the petitioner has been affected by an Act or order in one of the following cases: a) Where the action has been taken under a ' Statute which is ultra vires of the Constitution. b) Where the Statute is intra vires ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not for or against individuals but even a presumption against the State or acts of public servants could not be allowed to weigh while dispensing justice. The touchstone will be if it would be right, just and fair. The applicability of the principles of natural justice even to the administrative law cannot be denied and any denial in this behalf will be the beginning of injustice but the law on ambit in the case of Menaka Gandhi was the Passports Act 1963 and not the Code of Criminal Procedure or Essential Commodities Act. The validity of the Cr.P.C. or E.C. Act has not even been challenged here on any ground. Though, it was once said that all this has resulted from the deletion of Section 438, Cr.P.C. It may be, but in this state Section 438 is not on the statute book and the validity of the amendment deleting it, is not challenged before us, and has already been decided much before. It, will be frustrating to substitute the deleted law by making some direction in individual cases. Even the Judge made law, may be, by way of judicial decisions, common law or directions or superintendence under Article 227 of the Constitution should not be individual in their application. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be informed the reasons for the action and naturally it follows that he can say against it and explain. Not only that, the law proceeds gradually in the matter of time for detention. Police Officer is not authorised to detain the individual for more than 24 hours irrespective of the other limitations placed on his action by Sections 157, 169 and 170, Cr.P.C. He has to be produced before a Magistrate who again takes stock of the situation and has authority to authorise the detention for limited period subject to the condition that there is material against the indvidual. Then come to the provisions of bail and trial. To think that the police officers concoct a case or even to think in individual case that it has been concocted by the police cannot be justified. They are all public servants, they have been given authority by law enacted by the Parliament or Legislation of the Stato. Theres has to be a limit where the person are to relied upon and it will be too much to think that except the accused or his pairokar who has generally half-heartedly sworn an affidavit., the entire system is devoid of good faith. There has to be a risk in every action of State or People. Of course, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cising criminal jurisdiction in a state has inherent power to make any order for the purpose of securing the ends of justice. Being an extraordinary power it will, however, not be pressed in except for remedying a flagrant abuse by a subordinate court of its powers. The principle also seems to have been recognised in Pampapathy v. State of Mysore, , Madhu Limaye v. State of Maharashtra, , Kaushi Ram v. Hashim, AIR 1959 SC 542 : (1959 Cri LJ 658) and State of Orissa v. Ram Chandra Agarwal, : The distinction must always be drawn between absence of legal evidence and absence of reliable evidence. If it could be said with justification that there was no legal evidence at all in support of the prosecution case, it may lead to the inference that, the commitment was bad in that it was not based on any legal evidence at all. But on the other hand, where circumstances are relied upon to show that the evidence may perhaps not be delivered, they do not lead to the inference that there is no legal evidence on the record. 16. The Supreme Court after referring to the above laws has observed in para 137 of the judgment in the case of Janta Dal v. H.S. Chowdhary, (1993 SCC (Cri) 36 : (1993 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions in the first information report and other materials, if any accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not dislose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned act (under which a Criminal Proceeding is instituted) to the institution and conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e some more parts of it with respects (at pp 632 to 635 of Cri LJ): 144. The inherent power of a High Court to stay proceedings has been respectively debated in many English Courts and a majority of the judgments stressed that the power of staying proceedings should be reserved only for exceptional cases. We are not inclined to refer to all those English decisions except a few. 147. Most of the decisions of the English cases laid down the dictum that only in cases where there is substantial amount of delay or potential abuse of process or vexatious prosecution or the proceedings are tainted with malice etc. alone the Court can step in by exercise of the inherent power. 148. The Privy Council in Emperor v. Khwaja Nazir Ahmad (AIR 1945 PC 18 : (1945) 46 Cri LJ 413) examined the question of the inherent power of the High Court in interfering with the Statutory investigation of the police and laid down the following dictum: Just as it is essential that every one accused of a crime should have free access to a. Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter. 150. This Court in Jehan Singh v. Delhi Administration held that when the first information report discloses the commission of a cognizable offence, the statutory power of the police to investigate the cognizable offence cannot be interfered with in exercise of the inherent power of the Court. 151. Chandrachud, J. (as he then was) in Kurukshetra University v. State of Haryana pointed out this: (AIR Headnote). Inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory powers has to be exercised sparingly with circumspection and in the arrest of rare cases. Thus, the High Court in exercise of inherent powers under Section 482, Criminal Procedure Code cannot quash a first information report more so when the police had not even commenced the investigation and no proceeding at all is pending in any court in pursuance of the said FIR . 152. Desai, J. articulating for the Bench in State of Bihar v. J.A.C. Saldanha has clearly well demarcated the sphere of activity in the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. 159. Sawant, J. in his submission note in Kekoo J. Manech Ji v. Union of India has expressed his opinion thus: (1980 Cri LJ 258 Bombay) (para 21): This is admittedly a stage where the prosecuting agency is still investigating the offences and collecting evidence against the accused. The petitioner, who is the accused, has, therefore, no locus standi at this stage to question the manner in which the evidence should be collected. The law of this country does not give any right to the accused to control, or interfere with the collection of evidence. 157. The Seven Judges Full Bench of the Allahabad High Court went into matter very exhaustively in Ram Lal Yadav v. State of U.P. 1989 Cri LJ 1013 and held that the power of the police to investigate into a report which discloses the commission of cognizable offence is unfettered and cannot be interfered with by the High Court in exercise of its inherent powers under Section 482 Criminal Procedure Code. This decision has overruled the earlier decisions of that Court in Prashant Gaur v. State of U.P. (1988 All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be against equality before law enshrined in the Constitution and even the directions by the superior court may keep varying from case to case, individual to individual and person to person where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are forbidden. (AIR 1936 PC 253 (2) Nazeer Ahmad v: King Emperor). 25. Taking the matter of remedy in various writ, as a general relief has also been desired separately, the first difficulty would be that none of them is available at this stage i.e. during the pendency of investigation only. In the matter of habeas corpus the first requirement is that the man is in illegal custody. I would not go into the question as to whether the validity of the law itself has to be gone into or not as it would be immaterial for the purpose of the proceedings of the present nature and it will be sufficient to say that it may be, that, where the Act of legislature directing the detention is hit by any provision or fetters in the Constitution the detention may be illegal but the mere thought that an arrest will lower the person in general esteem may not justify the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid to be justified as an order of habeas corpus or even a direction. 26. A writ of mandamus is issued to do an act in accordance with the law. In order to have a cause of action for mandamus, there has to be some order or statutory duty which may be considered to be not in accordance with the law or demurable or pendency of an action before a public authority where he may not be disposing it of where an inaction or omission may be demurable. In the cases of the present nature, none of the two is available. Where first information report or even the material of investigation discloses an offence, the investigation has to go on and it will be too much to think that because the investigation is going on, the mandamus should be issued to stop it. A mandamus presupposes orders which are illegal, void or wholly without jurisdiction and unless some public authority has jumped over the law, there can be no occasion to approach the court. The court may have to correct the public servants in the case of breach of law or constitutional rights but by no sense has to dictate and advise any public servant muchless a subordinate court. A mandamus cannot be issued where there is a dispute abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d down in legislative Acts. They may be interpreted by the courts and may even in certain cases be struck down for being violative of the provisions of the Constitution but certainly cannot be enacted by the Courts. The High Court cannot do so, for the court can merely interpret the section; it cannot re-write, re-cast or re-design the section. In interpreting the provisions, the exercise undertaken by the Courts is to make explicit the intention of the Legislature which enacted the legislation. It is not for the court to reframe the legislation for very good reason that the powers to legislate have not, been conferred on the Court. 29. It was so laid down in the case of State of Kerala v. Mathai Verghese, . 29A. Even where the court finds that some thing ought to have been provided in the law but has not been so provided, it cannot supply the provsions by interpreting the law. There is no scope for importing into the statute words which are not there. Such importation would be not to construe, but to amend the statute, even if there be casus omissus, the defect can be remedied only by legislation and not by judicial interpretation. [Tarulata Syam v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party whose fundamental rights are directly and substantially invaded or are in imminent danger of being so invaded. A writ of mandamus is not issued to settle private disputes or to enforce private rights. A writ of mandamus cannot be issued against the President of India or the Governor of State. In an application for a writ of mandamus, it must be mentioned that a demand for justice had already been made and refused. The petitioner must not be guilty of latches. A writ will not be issued unless the court is certain that its command will be carried out. The court must not issue a futile writ. This writ does not lie to a State Legislature restraining it from considering a bill which is alleged to be in violation of the Constitution. 33. Lastly though not the least important, is the question as to whether there is any accepted bundle of facts before the High Court in such cases? So far even the investigation has not ended and the version of defence can be available only at proper stage. There has to be difference between the two and in writ jurisdiction, the High Court will not sit to decide the disputed questions of fact to dispose of the matter. The rival allegations can be on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. 36. It is true that in view of the above discussions the authority of the Court to interfere under Article 226 of the Constitution of India should be applied in rare of the rarest cases only but in the present case there is one redeeming factor. There are allegations in the writ petition that there was bad blood between certain Officers of the Executive, resulting in their transfer on account of complaint by the petitioner. There has been doubt in the matter of investigation as well as there was a final report and subsequently the S.P.O. had given a different opinion and also that the breach of the provisions has been of a very minor nature. Considering these factors, we are inclined to grant him an interim relief. 37. Standing counsel is allowed 3 weeks' time to file a counter-affidavit. Rejoinder may be filed within two weeks next. Till disposal of the application for interim relief after due exchange of the above mentioned affidavits, the arrest of the petitioner in case crime No. 74 of 1991 under Section 3/7 of the Essential Commodities Act, police station Khairagarh, District Agra, shall remain stayed. 38. A certified copy of this order may be issued to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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