Page 1

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.11381OF 2016 (Arising out of S.L.P.(C) No.26961 of 2016)

State of Uttar Pradesh and Others  Appellants

                                      Versus

Subhash Chandra Jaiswal and Others     Respondents  

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. Ordinarily we would have been loath to entertain an

appeal by special leave challenging the interim order, but

we are compelled to do so in the instant case.  There is a

singular  reason  for  the  same  since  the  High  Court  has

travelled much beyond the lis to issue directions which, we

Page 2

2

are disposed to think, it could not have.  

3. The  factual  matrix  as  unfolded  is  that  the  District

Magistrate, Allahabad and Raibareli granted excise licence

to run country liquor shops under U.P. Excise (Settlement

of  Licenses  Retail  Sale  of  Country  Liquor)  Rules,  2002,

license for  foreign liquor  under  U.P.  Excise Settlement  of

Licenses for Retail  Sale of  Foreign Liquor (excluding Beer

and Wine) Rules, 2001 and license for model shop under

U.P.  Excise  (Settlement  of  Licenses  for  Retail  License  for

Model  Shop  of  Foreign  Liquor)  Rules,  2003.  One  of  the

eligibility conditions for grant of license is that licensee and

his family members must possess good moral character and

have no criminal background. As the facts would uncurtain,

an FIR dated 6.2.2016 was lodged by the respondent No. 1

which gave rise to Crime No. 0049 of 2016 under Sections

419, 420, 467, 468, 471 IPC at Police Station George Town,

District  Allahabad.  It  was  alleged  in  the  FIR  that  Vinod

Kumar Tripathi and his wife Asha Tripathi, respondent nos.

2 and 3 respectively had committed fraud and forgery by

opening bank account in the name of the respondent no.1

by  affixing  his  photograph,  submitting  his  ID  and  had

Page 3

3

withdrawn amount by forging his signature and deposited

the security amount with District Excise Officer, Allahabad.

The endeavour was to highlight that the said respondents

had the criminal antecedents.  

4. A  writ  petition  was  filed  under  Article  226  of  the

Constitution for  issue of  a  writ,  order  or  direction in the

nature  of  mandamus  commanding  the  competent

authorities  to  take  necessary  action  against  the  opposite

party Nos. 7 and 8 as they had violated various rules.  

5. The High Court called for the case diary which showed

that a final report had been submitted by the Investigating

Officer  on  23.04.2016  in  the  office  of  the  Circle  Officer,

Colonelganj, Allahabad and observed that no attempt had

been made by the investigating officer to find out whether

the signatures alleged to have been made by the respondent

no.1 for the purpose of opening the account were actually

made by him or not. The Court also took note of the stand

of the bank and observed that if signatures are forged and

the informant-respondent no.1 was not present at the time

of opening of the account, role of bank officials would also

be dubious, suspicious and they may become co-accused.

Page 4

4

6. After  so  observing,  the  High  Court  adverted  to  the

methods  of  investigation and expressed the  view that  no

attempt was made by the investigating officer to find out the

genuineness  of  signature  from  the  hand-writing  expert

despite  the  fact  that  the  informant-respondent  no.1  had

categorically challenged the signatures and no satisfactory

reply  was given by him.  The High Court  called upon the

Senior  Superintendent  of  Police,  Allahabad  and  District

Magistrate,  Allahabad,  who  are  in  charge  of  criminal

administration to explain the obtaining scenario.  The SSP,

Allahabad, appeared before the High Court and stated that

there had been serious lapses by the investigating officer

since appropriate and necessary steps were not taken in the

matter of investigation.  The SSP further stated that though

some  training  was  given  to  the  Sub-Inspectors  and

Inspectors to conduct investigation,  yet most of  the time,

the  said  officers  remained  busy  carrying  on  other  duties

which  resulted  in  getting  less  time  for  investigation

purposes.  It  was  also  stated  by  him  that  in  Allahabad

district about 250 officers were conducting investigation for

more than 11000 offences registered.  

Page 5

5

7. Noting  the  statement  of  the  SSP,  the  High  Court

observed  that  it  depicts  a  very  sorry  state  of  affairs  of

maintenance of law and order in the State and paints a grim

picture in which State is functioning, ignoring one of  the

most important aspects of administration, i.e., public safety,

security and maintenance of law and order.  It referred to

the order dated 14.10.2011 passed in Writ-C No. 40344 of

2011  titled  Raj  Prakash  v.  State  of  U.P.  and  others,

reproduced  few  passages  from  it  and  thereafter  stated

thus:-

“13. Police force is meant for protection of people. It’s  sole  aim and purpose is  to maintain law and order by preventing crime and if committed, to find out  and  book  guilty  person  so  as  to  get  them punished in accordance with law.  There is no other agency  in  the  State  except  Police  who  has  this statutory  as  well  as  constitutional  obligation  for protection of people.   But unfortunately,  it  is still living in colonial State of affairs when Police used to be deployed against public to crush their genuine rights and demands.  Police, at that time, reflected glorified  image  of  ruling  Colonial  State.  It  treated inhabitants  of  this  country  as  slaves  and  that  is why always tried not  to allow them to raise their voice against Empire.  For more than half a century, India  has  attained  it’s  independence  and  now  is governed by the Constitution, given by the people to itself  so as to  function,  “for  the people”,   “by the people”, “of the people” principle but Police has not mend it’s ways.

Page 6

6

14. Today people are frightened more with police than  criminals.   There  is  virtually  a  lack  of confidence  with  this  Uniformed  Force.   Judicial cognizance can be taken of several heinous crimes being  committed  almost  daily  and  many  a  times with  the  nexus  of  politicians/criminals  whereby common and innocent people are being made target. Criminality on the part of police is highly dangerous being a double edged weapon.  When they commit crime,  they  are  themselves  being  investigating agency, naively cover up the matter.  The result is that the courts of law, ultimately, ordinarily fail to punish guilty, for want of proper evidence for which the agency is responsible”.  

8. The Court further proceeded to reproduce para 20 of

the order in PIL No. 33084 of 2014 decided on 11th July,

2014 and other writ petitions and observed thus:-

“18. Laxity,  incapacity,  inefficiency  or  lack  of knowledge,  awareness  or  competence  in  making investigation  on the  part  of  Investigating  Officers, who are appointed by State, without ensuring their basic qualifications, whether they meet requirement of job or not, is another major reason for superficial and  shallow  investigation  which  is  aggravating crimes.  Criminals are not deterred due to lack of effective policing on all aspects.  The real burden is placed  on  judiciary  when  offenders,  who  have committed  the  crime  in  broad  daylight  and  in presence of  several  persons,  walk out  free  due to serious  lapses  on  the  part  of  investigating authorities and for their failure in collecting crucial evidence.  Most of the time, crime scene is not taken care so as to prevent contamination of evidence and by the time one realises, it is too late in the day and becomes very difficult  to  collect  credible  evidence, sufficient  to  book  culprit  for  the  offence  he  has committed.

Page 7

7

19. Situation  is  further  worsened  for  want  of effective forensic investigation inasmuch as facilities for  forensic  test  and  investigation  are  almost negligible in the State.  We are told that there are only  two  forensic  labs  in  Agra  and  Lucknow. Population of this State is now more than 20 crores and number  of  crimes  registered every  year  is  in lacs.  The facts are self-speaking to show that there is no serious attempt, will and intention on the part of Executive to provide competent investigating staff and  effective  supporting  mechanism  including forensic  test  facilities  and this,  ultimately,  causes serious dent in either bringing a culprit to court or to prosecute successfully.  Infrastructure, staff and other  requisite  facilities  for  forensic  investigation available at district level is not a luxury but in the present scenario, it is a necessity.”

9. The  High  Court,  as  the  impugned  order  reflects,

proceeded to issue certain directions.  They are reproduced

below:-

“In our view, time has come where State should be asked to show its real sincerity required in the field not  only  for  effective  registration  of  cognizable offences  but  also  proper  and  well  studied investigation  and  effective  prosecution  to  ensure appropriate  punishment  to  guilty  persons.  Since, even  District  level  Officers,  we  find,  are  not competent enough to take appropriate steps in this regard  and  nothing  can  be  done  unless  top authorities take steps, we direct Principal Secretary (Home),  U.P.,  Lucknow  and  Director  General  of Police,  U.P.,  Lucknow  to  consider  over  following aspects  and  submit  their  reply  through  personal affidavits, by 16th September, 2016:-  

(i) Work of investigation of crime and prosecution

Page 8

8

be separated from normal policing or prevention of  crime  and  other  works,  by  constituting separate  specialized  cadre  managed  by  officials well trained in respective fields. These officials be given  due  status,  designation  and  appropriate perks  and  facilities  so  that  State  may  attract deserving,  talented  and  meritorious  persons, willing  to  work  with  all  sincerity  in  respective wings. Both these wings be separately headed by independent  officers  of  the  level  of  Director General so that one wing may not get influenced by another.

(ii) The prosecution wing after separation, should be headed by an Officer of Secretary level, taken on deputation from Higher Judicial Services, so that  it  may  function  independently  and effectively.

(iii)  Whether  sanctioned  strength  of  police  for maintaining  law  and  order  and  normal  police functions  including  prevention  of  crime, investigation and prosecution is sufficient? If not, what is actual requirement for the said purposes and why required number of posts were/are not created by  Government  so  that  problem of  law and order in State is effectively managed?

(iv) What is actual number of sanctioned strength in the respective fields of Police Department and what  is  normal  period  of  time  taken  for  filling existing vacancies?

(v) Whether any existing qualification or specific eligibility conditions are prescribed for appointing Investigating Officer? If not, why such conditions should  not  be  prescribed  considering  the  fact that in these days, investigation process involves multifaceted  scientific,  technical  and  advanced techniques  requiring  an  efficient  and  well conversant  person  to  deal  with  all  such

Page 9

9

techniques etc.

(vi) How many cases are pending for investigation in the State, older than six months, and what is the  actual  number  of  Investigating  Officers available. These figures shall be supplied in the form of a chart, district-wise.

(vii) Why Forensic Labs with modern equipments and  sufficient  staff  be  not  established  at  every District Headquarters. State should also provide adequate  staff  looking  to  the  size  of  District, general trend, number of criminal cases reported every year and nature of cases, normally reported in  that  area  and  maintain  it  regularly  so  that Investigating Officers may be able to get Forensic test/  opinion/  report  with  the  utmost expeditiousness and as early as possible.

(viii)  A  report  shall  be  submitted to  this  Court obtained from each and every Autopsy Centre as to what facilities are available thereat, how many Postmortem/ Autopsy they are conducting every day and show preservation of body organs etc. is being maintained. (The officers submitting report shall  bear  in  mind  that  veracity  of  report, whatever is submitted, may got cross-checked by Court  through  Judicial  Officers  and,  therefore, there should be no attempt to submit a casual and  shallow  report  but  it  should  be  true  and complete report in all respect.)

In  case  affidavits,  as  above,  are  not  filed  by date  mentioned  above,  the  two  Officers  namely, Principal  Secretary  (Home),  U.P.,  Lucknow  and Director  General  of  Police,  U.P.,  Lucknow  shall appear before this Court on next date.”

10. On a perusal of the aforesaid directions, we have no

trace of doubt in our mind that the High Court in a case of

Page 10

10

the present nature could not have issued such directions. In

fact, as we perceive, some of the directions are in the field of

exclusive domain of the Legislature. It is submitted by Mr.

Ravi Prakash Mehrotra, learned counsel for the appellants

that for giving effect to certain directions, provisions of the

Indian Penal Code and the Code of Criminal Procedure are

required to be amended.  It is also urged by him that Union

of India was not a party before the High Court and hence,

directions could  not  have  been thought  of.   He has  also

drawn our attention to certain State amendments.   

11. Having  noted  the  aforesaid  submissions,  it  is

necessary to state that it is expected that the High Courts

while  dealing  with  the  lis are  expected  to  focus  on  the

process of adjudication and decide the matter. The concept,

what is thought of or experienced cannot be ingrained or

engrafted into an order solely because such a thought has

struck the adjudicator.  It must flow from the factual base

and based on law.  To elaborate,  there cannot  be general

comments on the investigation or for that matter, issuance

of  host  of  directions  for  constituting  separate  specialized

cadre managed by officials or to require an affidavit to be

Page 11

11

filed whether sanctioned strength of police is adequate or

not  to  maintain law and order  or  involvement  of  judicial

officers or directions in the like manner.  To say the least,

some of the directions issued are not permissible and all of

them are totally unrelated to the case before the High Court.

We are constrained to say that the High Court should have

been well advised to restrict the adjudicatory process that

pertained to the controversy that was before it.

12. In  this  context,  we  may  refer  to  refer  certain

authorities in the field. In  Subrata Roy Sahara v. Union

of India and others1  it has been  held that a Judge is to

decide every dispute, in consonance with law. One is not

free to decide in consonance with his will, but must decide

in accord with law. It has been further held that the concept

of  a  Judge  being  an  individual  possessing  power  and

authority, is but a delusion.   

13. In  Gurdev Kaur and others v. Kaki and others2 it

has been observed thus:-  

“Judges  must  administer  law  according  to  the provisions  of  law.  It  is  the  bounden  duty  of judges  to  discern  legislative  intention  in  the

1 (2014) 8 SCC 470 2 (2007) 1 SCC 546

Page 12

12

process of adjudication. Justice administered ac- cording to individual’s  whim, desire,  inclination and  notion  of  justice  would  lead  to  confusion, disorder and chaos.”   

14. In  Census  Commissioner  and  others  v.  R.

Krishnamurthy3 the three-Judge Bench was compelled to

observe as follows:-  

“No adjudicator or a Judge can conceive the idea that the sky is the limit or for that matter there is no barrier  or  fetters in one’s individual percep- tion, for judicial vision should not be allowed to be imprisoned and have the potentiality to cover celestial zones. Be it ingeminated, refrain and re- strain are the essential virtues in the arena of ad- judication because they guard as sentinel so that virtuousness  is  constantly  sustained.  Not  for nothing,  centuries  back  Francis  Bacon4 had  to say thus:

“Judges  ought  to  be  more  learned  than witty,  more  reverend  than  plausible,  and more  advised  than  confident.  Above  all things, integrity is their portion and proper virtue. … Let the Judges also remember that Solomon’s throne was supported by lions on both sides: let them be lions, but yet lions under the throne.”   

15. In the said case, a passage from Frankfurter, J.5  was

reproduced which we think it apt to quote:-

“For  the  highest  exercise  of  judicial  duty  is  to subordinate  one’s  private  personal  pulls  and

3 (2015) 2 SCC 796 4 Bacon, “Essays: Of Judicature in I The Works of Francis Bacon” (Montague, Basil, Esq ed., Philadel- phia: A Hart, late Carey & Hart, 1852), pp. 58-59. 5 Frankfurter, Felix in Clark, Tom C., “Mr Justice Frankfurter: ‘A Heritage for all Who Love the  Law’”, 51 ABAJ 330, p. 332 (1965)

Page 13

13

one’s private views to the law of which we are all guardians—those  impersonal  convictions  that make a  society  a  civilised community,  and not the victims of personal rule.”

 16. We have referred to the aforesaid authorities to sound

a note of caution as sometimes one comes across certain

orders  where  directions  are  issued  which do  not  directly

arise from the case.  In the instant case, as we notice, the

controversy was absolutely different but the High Court has

generalised it and issued the directions.

17. A  Judge  should  not  perceive  a  situation  in  a

generalised  manner.   He  ought  not  to  wear  a  pair  of

spectacles so that he can see what he intends to see.  There

has to be a set of facts to express an opinion and that too,

within the parameters of law.  

18. In this regard, another aspect needs to be noted.  We

have already stated that some of the directions are in the

nature of legislation or policy.  In Union of India and an-

other v. Deoki Nandan Aggarwal6 a three-Judge Bench

has observed that the power to legislate has not been con-

ferred on the courts and, therefore,  the court cannot add

words to a statute or read words into it which are not there.

6 1992 Supp (1) SCC 323

Page 14

14

19. In   Vemareddy Kumaraswamy Reddy and another

v. State of A.P.7 the Court observed that the judges should

not proclaim that they are playing the role of a law-maker

merely for an exhibition of judicial valour. They have to re-

member that there is a line, though thin, which separates

adjudication  from  legislation.  That  line  should  not  be

crossed or erased.

20.  In this context, we may fruitfully refer to the authority

in  Suresh Seth v.  Commr.,  Indore Municipal  Corpora-

tion and others8 wherein it has been held that the Court

cannot issue any direction to the legislature to make any

particular kind of enactment because under the constitu-

tional scheme, Parliament and Legislative Assemblies exer-

cise sovereign power to enact laws and no outside power or

authority can issue a direction to enact a particular piece of

legislation. In Supreme Court Employees’ Welfare Associ-

ation v. Union of India and another9 it has been ruled

that no court can direct a legislature to enact a particular

law.  Similarly, when an executive authority exercises a leg-

islative power by way of a subordinate legislation pursuant 7 (2006) 2 SCC 670 8 (2005) 13 SCC 287 9 (1989) 4 SCC 187

Page 15

15

to the delegated authority of  a legislature, such executive

authority cannot be asked to enact a law which it has been

empowered to do under the delegated legislative authority.

This view has been reiterated in State of Jammu & Kash-

mir v. A.R. Zakki and others10.    

21. In this regard, the following passage from the authority

in Manoj Sharma v. State11, would be relevant:-

“The doctrine of judicial restraint which has been em- phasised repeatedly by this Court e.g. in  Aravali Golf Club v. Chander Hass12 and  State of A.P. v. P. Laxmi Devi13 restricts the power of  the Court and does not permit the Court to ordinarily encroach into the leg- islative or executive domain. As observed by this Court in the above decisions, there is a broad separation of powers in the Constitution and it would not be proper for one organ of the State to encroach into the domain of another organ.”

22. In  State of U.P. v.  Mahindra and Mahindra Ltd.14,

the Court observed:-  

“Within our Constitution, we have specifically demar- cated the ambit of  power and the boundaries of  the three organs of the society by laying down the princi- ples of separation of powers, which is being adhered to for carrying out democratic functioning of the country. So far as the legislation is concerned, the exclusive do- main is with the legislature. Subordinate legislations are framed by the executive by exercising the delegated

10 1992 Supp (1) SCC 548 11 (2008) 16 SCC 1 12 (2008) 1 SCC 683 13 (2008) 4 SCC 720 14 (2011) 13 SCC 77

Page 16

16

power conferred by the statute, which is the rule-mak- ing  power.  The  judiciary  has  been  vested  with  the power to interpret the aforesaid legislations and to give effect to them since the parameters of the jurisdiction of both the organs are earmarked. Therefore, it is al- ways  appropriate  for  each of  the  organs to  function within its domain.”  

23. Some  of  the  directions,  as  we  perceive,  are  in  the

sphere of policy.  A court cannot take steps for framing a

policy.   As is evincible,  the directions issued by the High

Court and the queries made by it related to various spheres

which, we are constrained to think, the High Court should

not have gone into. It had a very limited lis before it.  Be it

stated, the directions may definitely show some anxiety on

the part of the learned Judges, but it is to be remembered

that directions are not issued solely out of concern.  They

have to be founded on certain legally justifiable principles

that have roots in the laws of the country.   In this regard,

we may fruitfully refer to the following passage from State

of Uttar Pradesh and others v. Anil Kumar Sharma and

another15:-  

“17. Quoting the observations in respect of policy- making  by  Lawton,  L.J.  in  Laker  Airways16 A.S.

15 (2015) 6 SCC 716 16 Laker Airways Ltd. v. Deptt. of Trade, 1977 QB 643 : (1977) 2 WLR 234 : (1977) 2 All ER 182  (CA)

Page 17

17

Anand, C.J., as he then was, reiterated the principle that the “role of the Judge is that of a referee. I can blow my judicial whistle when the ball goes out of play;  but  when the  game  restarts  I  must  neither take  part  in  it  nor  tell  the  players  how to  play”. Anand, C.J. added:

“The judicial whistle needs to be blown for a pur- pose  and with  caution.  It  needs  to  be  remem- bered that court cannot run the Government. It has the duty of implementing the constitutional safeguards that protect individual rights but they cannot push back the limits of the Constitution to accommodate the challenged violation.”

24. Be  it  noted,  the  said  case also  arose  from the  High

Court of Allahabad where sweeping directions were issued.

Thus anlaysed,  we are of  the convinced opinion that  the

High Court has crossed the boundaries of the controversy

that was before it.  The courts are required to exercise the

power of judicial review regard being had to the controversy

before it.  There may be a laudable object in the mind but it

must flow from the facts before it or there has to be a specif-

ic  litigation before it.  Additionally,  the High Court should

have reminded itself that it  cannot enter into the domain

where amendment to legislations and other regulations are

necessary. We are absolutely conscious that it is the duty of

the  State  Government  to  discharge  its  obligations  in  the

Page 18

18

matters relating to law and order and remain alert to the is-

sues that emerge. It has a duty also to see that the investig-

ations are speedily completed in an appropriate manner. If

there is a failure of law and order situation, the executive is

to be blamed.  In the maintenance of law and order situ-

ation the judicial officers are not to be involved.  But the ex-

ecutive has to remain absolutely alive to its duties and  we

are sure, the State Government shall look into the aspects

and endeavour to see that appropriate steps are taken to

maintain the law and order situation.

25. A few words by way of clarification.  Though we have

not appreciated the opinion expressed and the directions is-

sued  by  the  High  Court  as  the  opinions  are  general  in

nature  and  directions  fall  in  the  legislative  domain  and

some of them are beyond the scope of the litigation, yet we

have observed certain aspects in the preceding paragraph.

Our observations made hereinabove are words of caution for

the State and we are sure that the State shall remain alive

to its obligations.

26. Resultantly, the appeal is allowed and the impugned

order passed by the High Court is set aside. The High Court

Page 19

19

is  requested  to  fix  a  fresh  date  and  dispose  of  the  writ

petition in accordance with law.    

                             ......................J.     (Dipak Misra)

......................J.                     (Amitava Roy)

New Delhi ; November 29, 2016