E-Paper
HC against back door anticipatory bail
A FULL BENCH of the Allahabad High Court has ruled that anticipatory bail should not be granted through back door, liberally staying arrests in exercise of the writ jurisdiction under Article 226 of the Constitution by the High Court. ?Under the garb of seeking to quash criminal proceedings,? observed the full bench, ?relief of anticipatory bail, not available in the state of UP, cannot be obtained for reasons that a litigant cannot be permitted to achieve something indirectly, which cannot be sought directly.?
A FULL BENCH of the Allahabad High Court has ruled that anticipatory bail should not be granted through back door, liberally staying arrests in exercise of the writ jurisdiction under Article 226 of the Constitution by the High Court.
“Under the garb of seeking to quash criminal proceedings,” observed the full bench, “relief of anticipatory bail, not available in the state of UP, cannot be obtained for reasons that a litigant cannot be permitted to achieve something indirectly, which cannot be sought directly.”
Relying on a number of decisions of the Supreme Court, and the Privy Council, the full bench upheld the earlier full bench order in the case of Satya Pal which had held that arrests could be stayed in exercise of the extraordinary powers under Article 226 (writ jurisdiction) only in those cases where the FIR did not disclose a cognisable offence in accordance with parameters laid down by the Supreme Court in the ‘State of Haryana Vs Bhajan Lal’ and other cases. Thus the full bench rejected the reference preferred by a division bench in the case of Ajit Singh @ Kmuraha, Vs state of UP and others.
The State Government was represented in the court proceedings by Government advocate Vijay Shankar Mishra who supported the decision given in the case of Satya Pal.
The Bench said interpretation given by the Division bench on the basis of the Supreme Court decision in ‘Joginder Kumar Vs state of UP and others’ 1994 (4) SCC 260, that even those cases in which the FIR disclosed a cognisable offence, yet interference with the investigation for the purpose of staying arrests in the writ jurisdiction was possible was held to be not in accordance with law.
The full bench said the distinction made in Joginder Kumar’s case between the power of arresting an accused and the necessity of effecting arrest did not enlarge the powers to the High Court for staying arrest even when the FIR disclosed a cognisable offence. Joginder Kumar’s case, which was a habeas corpus petition only, contained directions for the police on the steps to be taken whilst effecting arrests and was not addressed to the High Court. For breach of directions in Joginder Kumar’s case, the authorities concerned could be hauled up departmentally or under the contempt jurisdiction.
The full bench observed that the power of quashing criminal proceedings could be exercised with circumspection in the rarest of rare cases and the court was not justified in embarking on an enquiry as to the reliability or genuineness or otherwise of allegations made in the FIR or complaint, and the High Court should be loathe to interfere at the threshold to thwart the prosecution in exercise of its inherent powers under Article 226 or section 482 Cr PC. Normally, powers of investigation fall within the exclusive domain of the police who alone have discretion to decide whether to arrest an accused or not and the courts cannot intervene unless the police acts without jurisdiction by seeking to investigate a non-cognisable offence without the permission of a magistrate or where there might be some other statutory restriction on investigation.
The full bench comprising Justice BS Chauhan, Justice Sushil Harkauli, and Justice Amar Saran said “Ordinarily, arrest is a part of investigation and is needed for questioning an accused about the motive, preparation, commission and aftermath of the crime and the connection of other persons. The accused may provide information leading to material facts. It may be necessary to curtail his freedom and to protect witnesses and persons connected with the victim of the crime and to prevent his disappearance or to maintain law and order in the locality.” The full bench also held that the accused had no right to notice before arrest. There can be no meticulous examination of the evidence also at this stage about the likelihood of the conviction.
Questions of malafides of prosecution cannot be gone into, and the defence and investigation material cannot be considered at this stage. The court also cautioned against giving final relief at the initial stage.
