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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1144  OF 2016 (@ SPECIAL LEAVE PETITION (CRL.) NO. 5478  OF 2015)

THE STATE OF TELANGANA     …APPELLANT(S)

VERSUS

HABIB ABDULLAH JEELANI & ORS    …RESPONDENT(S)

J U D G M E N T

Dipak Misra, J.   

The  seminal  issue  that  arises  for  consideration  in  this

appeal,  by  special  leave,  is  whether  the  High  Court  while

refusing to exercise inherent powers under Section 482 of the

Code of Criminal Procedure (CrPC) to interfere in an application

for  quashment  of  the  investigation,  can  restrain  the

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investigating agency not to arrest the accused persons during

the course of investigation.  

2. The facts  lie  in a  narrow compass.   On the  basis  of  a

report  by  the  informant  under  Section  154  CrPC,  FIR  No.

205/2014  dated  26.07.2014  was  registered  at

Chandrayanagutta Police Station, Hyderabad  for the offences

punishable under Sections 147, 148 149 and 307 of the Indian

Penal Code (IPC).  Challenging the initiation of criminal action,

the three accused persons, namely, accused Nos. 1, 2 and 5,

(respondent  Nos.  1,  2  and  3  herein)  invoked  inherent

jurisdiction of the High Court in Criminal Petition No. 10012 of

2014 for quashing of the FIR and consequential investigation.

As the impugned order would show, the learned single Judge

referred to the FIR and took note  of  the submissions of  the

learned  counsel  for  the  petitioners  therein  that  all  the

allegations that had been raised in the FIR were false and they

had  been  falsely  implicated  and  thereafter  expressed  his

disinclination  to  interfere  on  the  ground  that  it  was  not

appropriate to stay the investigation of the case. However, as a

submission  had  been  raised  that  the  accused  persons  were

innocent and there had been allegation of false implication, it

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would  be  appropriate  to  direct  the  police  not  to  arrest  the

petitioners  during  the  pendency  of  the  investigation  and,

accordingly, it was so directed.

3. It  is  submitted  by  Mr.  Harin  P.  Raval,  learned  senior

counsel  appearing  for  the  State  that  the  informant  had

sustained  grievous  injuries  and  was  attacked  by  dangerous

weapons and custodial interrogation of the accused persons is

absolutely  essential.  According  to  him,  the  High  Court  in

exercise of inherent power under Section 482 CrPC can quash

an FIR on certain well known parameters but while declining to

quash the same, it cannot extend the privilege to the accused

persons which is in the nature of an anticipatory bail. Learned

senior  counsel  would  submit  that  the  nature  of  the  order

passed  by  the  High  Court  is  absolutely  unknown  to  the

exercise of inherent jurisdiction under Section 482 CrPC and,

therefore, it deserves to be axed.   

4. Ms.  Nilofar  Khan,  learned  counsel  appearing  for  the

respondent Nos. 1 to 3 in support of the order passed by the

High Court submitted that  the custodial  interrogation is  not

necessary in the facts of the case. She would further submit

that the plentitude of power conferred on the High Court under

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Section 482 CrPC empowers it to pass such an order and there

being no infirmity in the order, no interference is warranted  by

this Court.

5. The controversy compels one to visit the earlier decisions.

In  King Emperor v. Khwaja Nazir Ahmad1 while deliberating

on the scope of right conferred on the police under Section 154

CrPC, Privy Council observed:-

“…  so  it  is  of  the  utmost  importance  that  the judiciary  should  not  interfere  with  the  police  in matters  which  are  within  their  province  and  into which  the  law  imposes  upon  them  the  duty  of enquiry.  In  India,  as  has  been shown,  there  is  a statutory  right  on  the  part  of  the  police  to investigate  the  circumstances  of  an  alleged cognizable  crime  without  requiring  any  authority from the judicial authorities, and it would, as their Lordships  think,  be  an  unfortunate  result  if  it should  be  held  possible  to  interfere  with  those statutory  rights  by  an  exercise  of  the  inherent jurisdiction  of  the  Court.  The  functions  of  the judiciary  and  the  police  are  complementary,  not overlapping,  and  the  combination  of  individual liberty with a due observance of  law and order is only to be obtained by leaving each to exercise its own function, always of course subject to the right of  the  Court  to  intervene  in  an  appropriate  case when  moved  under Section  491 of  the  Criminal Procedure Code to give directions in the nature of habeas  corpus.  In  such  a  case  as  the  present, however, the Court's functions begin when a charge is preferred before it and not until then.”

1 AIR 1945 PC 18

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6. Having  stated  what  lies  within  the  domain  of  the

investigating agency, it is essential to refer to the Constitution

Bench decision  in  Lalita  Kumari  v.  Government  of  Uttar

Pradesh and Ors2. The question that arose for consideration

before the Constitution Bench was whether “a police officer is

bound to register a first information report upon receiving any

information  relating  to  commission  of  a  cognizable  offence

under Section 154 CrPC or the police officer has the power to

conduct a ‘preliminary inquiry’ in order to test the veracity of

such  information  before  registering  the  same”?  While

interpreting Section 154 CrPC, the Court addressing itself to

various facets opined that Section 154(1) CrPC admits of  no

other  construction  but  the  literal  construction.  Thereafter  it

referred to the legislative intent of Section 154 which has been

elaborated in State of Haryana and Ors. v. Bhajan Lal and

Ors.3 and  various  other  authorities.   Eventually  the  larger

Bench  opined  that  reasonableness  or  credibility  of  the

information is not a condition precedent for the registration of

a  case.  Thereafter  there  was  advertence  to  the  concept  of

preliminary inquiry. In that context, the Court opined thus:-     

2 (2014) 2 SCC 1 3 AIR 1992 SC 604

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“103.  It  means  that  the  number  of  FIRs  not registered  is  approximately  equivalent  to  the number of FIRs actually registered. Keeping in view the  NCRB  figures  that  show  that  about  60  lakh cognizable offences were registered in India during the year 2012, the burking of crime may itself be in the range of about 60 lakhs every year. Thus, it is seen  that  such  a  large  number  of  FIRs  are  not registered every year, which is a clear violation of the rights of the victims of such a large number of crimes.

104. Burking of crime leads to dilution of the rule of law in the short run; and also has a very negative impact  on  the  rule  of  law  in  the  long  run  since people stop having respect for the rule of law. Thus, non-registration  of  such  a  large  number  of  FIRs leads to a definite lawlessness in the society.

105.  Therefore,  reading  Section  154  in  any  other form would not only be detrimental to the scheme of the Code but also to the society as a whole.  It is thus  seen  that  this  Court  has  repeatedly  held  in various  decided  cases  that  registration  of  FIR  is mandatory  if  the  information  given  to  the  police under  Section  154  of  the  Code  discloses  the commission of a cognizable offence.”  

7. While  dealing  with  the  likelihood  of  misuse  of  the

provision, the Court ruled thus:-  

“114.  It  is  true that  a delicate  balance  has  to be maintained between the interest of the society and protecting  the  liberty  of  an individual.  As  already discussed  above,  there  are  already  sufficient safeguards provided in the Code which duly protect the liberty of an individual in case of registration of false FIR. At the same time, Section 154 was drafted

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keeping in mind the interest of the victim and the society.  Therefore,  we are of  the cogent  view that mandatory registration of FIRs under Section 154 of the Code will not be in contravention of Article 21 of the Constitution as purported by various counsel.”

8. The exceptions that  were carved out pertain to medical

negligence cases as has been stated in Jacob Mathew v. State

of  Punjab4.   The  Court  also  referred  to  the  authorities  in

P. Sirajuddin v. State of Madras5 and CBI v. Tapan Kumar

Singh6 and finally held that what is necessary is only that the

information given to the police must disclose the commission of

a cognizable offence. In such a situation, registration of an FIR

is mandatory. However, if no cognizable offence is made out in

the  information  given,  then  the  FIR  need  not  be  registered

immediately  and  perhaps  the  police  can  conduct  a  sort  of

preliminary verification or  inquiry  for  the  limited purpose  of

ascertaining  as  to  whether  a  cognizable  offence  has  been

committed. But, if the information given clearly mentions the

commission of  a cognizable offence, there is no other option

but to register an FIR forthwith. Other considerations are not

relevant at the stage of registration of FIR, such as, whether

4 (2005) 6 SCC 1 5 (1970) 1 SCC 595 6 (2003) 6 SCC 175

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the  information  is  falsely  given,  whether  the  information  is

genuine, whether the information is credible, etc.  At the stage

of registration of FIR, what is to be seen is merely whether the

information  given  ex  facie  discloses  the  commission  of  a

cognizable offence.   

9. Be  it  noted,  certain  directions  were  issued  by  the

Constitution Bench, which we think, are apt to be extracted:-

“120.5. The scope of preliminary inquiry is not to verify  the veracity or  otherwise of  the information received  but  only  to  ascertain  whether  the information reveals any cognizable offence.

120.6.  As  to  what  type  and  in  which  cases preliminary inquiry is to be conducted will depend on the facts and circumstances of  each case. The category of cases in which preliminary inquiry may be made are as under:

(a) Matrimonial disputes/family disputes

(b) Commercial offences

(c) Medical negligence cases

(d) Corruption cases

(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months’  delay  in  reporting  the  matter  without satisfactorily explaining the reasons for delay.

The  aforesaid  are  only  illustrations  and  not exhaustive  of  all  conditions  which  may  warrant preliminary inquiry.

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120.7. While ensuring and protecting the rights of the  accused  and  the  complainant,  a  preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.

120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to  cognizable  offences,  whether  resulting  in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary  and  the  decision  to  conduct  a  preliminary inquiry must also be reflected, as mentioned above.”

10. We have copiously referred to the aforesaid decision for

the simon pure reason that at the instance of the informant the

FIR was lodged and it was registered which is in accord with

the decision of the Constitution Bench.

11. Once  an  FIR  is  registered,  the  accused  persons  can

always approach the High Court under Section 482 CrPC or

under Article 226 of the Constitution for quashing of the FIR.

In  Bhajan Lal (supra) the two-Judge Bench after referring to

Hazari Lal Gupta v. Rameshwar Prasad7,  Jehan Singh v.

Delhi Administration8,  Amar Nath v.  State of  Haryana9,

Kurukshetra  University  v.  State  of  Haryana10,  State  of

7  (1972) 1 SCC 452 8  AIR 1974 SC 1146 9  (1977) 4 SCC 137 : AIR 1977 SC 2185 10 (1977) 4 SCC 451 : AIR 1977 SC 2229

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Bihar  v.  J.A.C.  Saldanha11,  State  of  West  Bengal  v.

Swapan  Kumar  Guha12,  Smt.  Nagawwa  v.  Veeranna

Shivalingappa Konjalgi13, Madhavrao Jiwajirao Scindia v.

Sambhajirao  Chandrojirao  Angre14,  State  of  Bihar  v.

Murad Ali Khan15  and some other authorities that had dealt

with the contours of exercise of inherent  powers of the High

Court, thought it appropriate to  mention certain category of

cases by way of illustration wherein the extraordinary power

under Article 226 of the Constitution or inherent power under

Section 482 CrPC could be exercised either to prevent abuse of

the process of  any court  or  otherwise to secure the ends of

justice. The Court also observed that it may not be possible to

lay  down  any  precise,  clearly  defined  and  sufficiently

channelized and inflexible guidelines or rigid formulae and to

give  an exhaustive  list  of  myriad cases  wherein such power

should be exercised.  The illustrations given by the Court need

to be recapitulated:-  

“(1)  Where  the  allegations  made  in  the  first information report or the complaint, even if they are taken  at  their  face  value  and  accepted  in  their

11 AIR 1980 SC 326 12 AIR 1982 SC 949 13 AIR 1976 SC 1947 14 (1988) 1 SCC 692 : AIR 1988 SC 709 15 (1988) 4 SCC 655 : AIR 1989 SC 1

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entirety do not prima facie constitute any offence or make out a case against the accused.

(2)  Where  the  allegations  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 disclose 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 continuance of the proceedings  and/or  where  there  is  a  specific provision  in  the  Code  or  the  concerned  Act, providing efficacious redress for the grievance of the aggrieved party.

(7)  Where  a  criminal  proceeding  is  manifestly attended  with  mala  fide  and/or  where  the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and

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with a view to spite him due to private and personal grudge.”

It is worthy to note that the Court has clarified that the

said  parameters  or  guidelines  are  not  exhaustive  but  only

illustrative.  Nevertheless, it throws light on the circumstances

and situations where court’s inherent power can be exercised.   

12. There  can  be  no  dispute  over  the  proposition  that

inherent  power  in  a  matter  of  quashment  of  FIR  has  to  be

exercised sparingly and with caution and when and only when

such exercise is justified by the test specifically laid down in

the provision itself. There is no denial of the fact that the power

under Section 482 CrPC is very wide but it needs no special

emphasis to state that conferment of wide power requires the

court  to  be  more  cautious.  It  casts  an  onerous  and  more

diligent duty on the Court.  

13. In this regard, it would be seemly to reproduce a passage

from  Kurukshetra University (supra) wherein Chandrachud,

J. (as His Lordship then was) opined thus:-   

“2.  It  surprises  us  in  the  extreme  that  the  High Court thought that  in the exercise of  its  inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a first information report.

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The police  had not  even commenced investigation into  the  complaint  filed  by  the  Warden  of  the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realised  that  inherent  powers  do  not  confer  an arbitrary  jurisdiction  on  the  High  Court  to  act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.”

14. We have referred to the said decisions only to stress upon

the issue, how the exercise of jurisdiction by the High Court in

a proceeding relating to quashment of FIR can be justified.  We

repeat even at the cost of repetition that the said power has to

be exercised in a very sparing manner and is not to be used to

choke  or  smother  the  prosecution  that  is  legitimate.   The

surprise  that  was  expressed  almost  four  decades  ago  in

Kurukshetra University’s case compels us to observe that we

are also surprised by the impugned order.  

15. In the instant case, the High Court has not referred to

allegations  made  in  the  FIR  or  what  has  come  out  in  the

investigation.  It has noted and correctly that the investigation

is in progress and it is not appropriate to stay the investigation

of the case. It has disposed of the application under Section

482  CrPC  and  while  doing  that  it  has  directed  that  the

investigating agency shall not arrest the accused persons.  This

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direction “amounts” to an order under Section 438 CrPC, albeit

without  satisfaction  of  the  conditions  of  the  said  provision.

This is legally unacceptable.   

16. To  appreciate  the  nature  of  the  order  passed,  it  is

necessary to have a survey of  the authorities  that deal  with

grant of anticipatory bail.  In Rashmi Rekha Thatoi and Anr.

v. State of Orissa and Ors.16 the High Court while rejecting

the  application  for  anticipatory  bail  had  directed that  if  the

accused persons surrender, the trial  magistrate shall  release

them on bail on such terms and conditions as he may deem fit

and  proper.    Analysing  the  scope  of  Section  438  CrPC  as

expressed  by  the  Constitution  Bench   in  Gurbaksh  Singh

Sibbia v. State of Punjab17  and other decisions, the Court

held thus:-  

“33.  We  have  referred  to  the  aforesaid pronouncements to highlight how the Constitution Bench  in  Gurbaksh  Singh  Sibbia  (supra) had analysed  and  explained  the  intrinsic  underlying concepts under Section 438 of the Code, the nature of  orders  to  be  passed  while  conferring  the  said privilege, the conditions that are imposable and the discretions to be used by the courts. On a reading of the  said  authoritative  pronouncement  and  the principles  that  have  been  culled  out  in  Savitri Agarwal18 there is remotely no indication that the

16  (2012) 5 SCC 690 17  (1980) 2 SCC 565 : AIR 1980 SC 1632 18  (2009) 8 SCC 325

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Court  of  Session  or  the  High  Court  can  pass  an order that on surrendering of the accused before the Magistrate  he  shall  be  released  on  bail  on  such terms and conditions as the learned Magistrate may deem fit  and  proper  or  the  superior  court  would impose  conditions  for  grant  of  bail  on  such surrender.  When  the  High  Court  in  categorical terms has expressed the view that it is not inclined to grant anticipatory bail to the petitioner-accused it could not have issued such a direction which would tantamount to conferment of benefit by which the accused would be in a position to avoid arrest. It is in clear violation of the language employed in the statutory provision and in flagrant violation of the dictum laid down in Gurbaksh Singh Sibbia (supra) and  the  principles  culled  out  in  Savitri  Agarwal (supra). It is clear as crystal the court cannot issue a blanket order restraining arrest and it  can only issue an interim order and the interim order must also conform to the requirement of the section and suitable conditions should be imposed.”

 Elaborating further, the Court held:-  

“36. In the case at hand the direction to admit the accused persons to bail on their surrendering has no sanction in law and, in fact, creates a dent in the sacrosanctity of law. It is contradictory in terms and law  does  not  countenance  paradoxes.  It  gains respectability and acceptability when its solemnity is  maintained.  Passing  such  kind  of  orders  the interest  of  the  collective  at  large  and  that  of  the individual  victims  is  jeopardised.  That  apart,  it curtails the power of the regular court dealing with the bail applications.

37. In this regard it is to be borne in mind that a court  of  law  has  to  act  within  the  statutory command and not deviate from it. It is a well-settled proposition  of  law  what  cannot  be  done  directly, cannot  be  done  indirectly.  While  exercising  a

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statutory power a court is bound to act within the four corners thereof. The statutory exercise of power stands on a different footing than exercise of power of judicial review. This has been so stated in  Bay Berry Apartments (P) Ltd. v. Shobha19 and U.P. State Brassware Corpn. Ltd. v. Uday Narain Pandey20.”

 17. In Ranjit Singh v. State of Madhya Pradesh and Ors.21

the High Court had directed that considering the nature of the

allegation  and  the  evidence  collected  in  the  case-diary,  the

petitioner shall surrender before the competent court and shall

apply for regular bail and the same shall be considered upon

furnishing necessary bail bond.  The said order was challenged

before  this  Court.  The  two-Judge Bench was constrained  to

observe:-   

“It is the duty of the superior courts to follow the command of the statutory provisions and be guided by the  precedents  and issue directions  which are permissible in law. We are of the convinced opinion that  the observations made by the  learned Single Judge while dealing with second application under Section 438 CrPC were not at all warranted under any circumstance as it was neither in consonance with  the  language employed in Section 438 CrPC nor in accord with the established principles of law relating  to  grant  of  anticipatory  bail.  We  may reiterate that the said order has been interpreted by this Court as an order only issuing a direction to the  accused  to  surrender,  but  as  we  find,  it  has really created colossal dilemma in the mind of the learned Additional Sessions Judge. We are pained to

19 (2006) 13 SCC 737 20 (2006) 1 SCC 479 21 (2013) 16 SCC 797

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say that passing of these kind of orders has become quite frequent and the sagacious saying, “a stitch in time saves nine” may be an apposite reminder now. We painfully part with the case by saying so.”

18. At this juncture, we are obliged to refer to the decision in

Hema Mishra v. State of Uttar Pradesh and Ors.22 .  In the

said judgment, the Court was dealing with the power of  the

High Court of Allahabad pertaining to grant of pre-arrest bail in

exercise  of  extraordinary  or  inherent  jurisdiction  and  it  is

significant, for in the State of Uttar Pradesh Section 438 CrPC

has been deleted by the State Legislature.   Be it  noted that

constitutional  validity  of  the  said  deletion  was  challenged

before the Constitution Bench in  Kartar Singh v.  State of

Punjab23 wherein  it  has  been  held  that  deletion  of  the

application of Section 438 CrPC in the State of Uttar Pradesh is

constitutional.  The  Constitution  Bench  has  ruled  held  that

claim for pre-arrest protection is neither a statutory nor a right

guaranteed under  Article  14,  Article  19 or  Article  21 of  the

Constitution of India.   The larger Bench has further observed

thus:-  

“368. (17) Though it cannot be said that the High Court has no jurisdiction to entertain an application for bail  under Article 226 of the Constitution and

22 (2014) 4 SCC 453 23 (1994) 3 SCC 569

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pass orders either way, relating to the cases under the  1987  Act,  that  power  should  be  exercised sparingly,  that  too  only  in  rare  and  appropriate cases  in  extreme  circumstances.  But  the  judicial discipline and comity of courts require that the High Courts  should  refrain  from  exercising  the extraordinary jurisdiction in such matters.”

19. The  Allahabad  High  Court  has  taken  similar  view  in

several judgments, namely, Satya Pal v. State of U.P.24, Ajeet

Singh  v.  State  of  U.P.25,  Lalji  Yadav  v.  State  of  U.P.26,

Kamlesh Singh v. State of U.P.27 and Natho Mal v. State of

U.P.28.  

20. In  Hema  Mishra (supra)  the  Court  referred  to  the

decision in  Amarawati  v.  State of  U.P.29  which has been

affirmed by this  Court in  Lal Kamlendra Pratap Singh v.

State of U.P.30.   In Lal Kamlendra Pratap Singh (supra) it

has been held thus:-  

“6.  The  learned  counsel  for  the  appellant apprehends that  the appellant  will  be arrested as there  is  no  provision  for  anticipatory  bail  in  the State of U.P. He placed reliance on a decision of the Allahabad High Court in Amarawati v. State of U.P. (supra) in which a seven-Judge Full  Bench of the Allahabad  High  Court  held  that  the  court,  if  it

24 2000 Cri LJ 569 (All) 25 2007 Cri LJ 170 (All) 26 1998 Cri LJ 2366 (All) 27 1997 Cri LJ 2705 (All) 28 1994 Cri LJ 1919 (All) 29 2005 Cri LJ 755 (All)  30 (2009) 4 SCC 437

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deems fit in the facts and circumstances of the case, may grant interim bail pending final disposal of the bail application. The Full Bench also observed that arrest is not a must whenever an FIR of a cognizable offence is lodged. The Full Bench placed reliance on the  decision  of  this  Court  in  Joginder  Kumar v. State of U.P.31”

21. After  referring  to  the  same,  Radhakrishnan,  J.  opined

thus:-

“I may, however, point out that 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 pinpoint 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.”

22. Sikri, J. in his concurring opinion stated that though the

High Courts have very wide powers under Article 226, the very

vastness of the powers imposes on it the responsibility to use

them with circumspection and in accordance with the judicial

consideration and well-established principles, so much so that

31 (1994) 4 SCC 260

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while entertaining writ petitions for granting interim protection

from  arrest,  the  Court  would  not  go  on  to  the  extent  of

including  the  provision  of  anticipatory  bail  as  a  blanket

provision.  It has been further observed that such a power has

to be exercised very cautiously keeping in view, at the same

time, that the provisions of Article 226 are a device to advance

justice and not to frustrate it. The powers are, therefore, to be

exercised to prevent miscarriage of justice and to prevent abuse

of  process of  law by the authorities  indiscriminately  making

pre-arrest  of  the  accused  persons.  In  entertaining  such  a

petition  under  Article  226,  the  High  Court  is  supposed  to

balance the two interests.  On the one hand, the Court is to

ensure  that  such  a  power  under  Article  226  is  not  to  be

exercised liberally  so as to convert  it  into Section 438 CrPC

proceedings,  keeping  in  mind  that  when  this  provision  is

specifically omitted in the State of Uttar Pradesh, it cannot be

resorted to as back door entry via Article 226. On the other

hand, wherever the High Court finds that in a given case if the

protection against pre-arrest is not given, it would amount to

gross miscarriage of  justice and no case,  at  all,  is  made for

arrest pending trial, the High Court would be free to grant the

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relief in the nature of anticipatory bail in exercise of its power

under  Article  226 of  the Constitution.  Keeping in mind that

this power has to be exercised sparingly in those cases where it

is absolutely warranted and justified.

23. We have referred to the authority in Hema Mishra (supra)

as  that  specifically  deals  with  the  case  that  came  from the

State  of  Uttar  Pradesh  where  Section  438  CrPC  has  been

deleted.   It  has  concurred  with  the  view  expressed  in  Lal

Kamlendra  Pratap  Singh (supra).   The  said  decision,

needless to say, has to be read in the context of State of Uttar

Pradesh.  We do not intend to elaborate the said principle as

that is not necessary in this case.  What needs to be stated

here is that the States where Section 438 CrPC has not been

deleted and kept on the statute book, the High Court should be

well advised that while entertaining petitions under Article 226

of  the  Constitution  or  Section  482  CrPC,  exercise  judicial

restraint.  We may hasten to clarify that the Court, if it thinks

fit,  regard being had to the parameters of  quashing and the

self-restraint imposed by law,  has the jurisdiction to quash the

investigation  and  may  pass  appropriate  interim  orders  as

thought apposite in law, but it is absolutely inconceivable and

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unthinkable  to  pass  an  order  of  the  present  nature  while

declining  to  interfere  or  expressing  opinion  that  it  is  not

appropriate  to  stay  the  investigation.   This  kind  of  order  is

really inappropriate and unseemly.  It has no sanction in law.

The Courts should oust and obstruct unscrupulous litigants

from invoking the inherent jurisdiction of the Court on the drop

of a hat  to file an application for quashing of launching an FIR

or investigation and  then seek relief by an interim order.  It is

the  obligation  of  the  court  to  keep  such  unprincipled  and

unethical litigants at bay.  

24. It  has  come to  the  notice  of  the  Court  that  in  certain

cases, the High Courts, while dismissing the application under

Section  482  CrPC  are  passing  orders  that  if  the

accused-petitioner  surrenders  before  the  trial  magistrate,  he

shall  be  admitted  to  bail  on  such  terms  and  conditions  as

deemed fit  and appropriate to be imposed by the concerned

Magistrate.   Sometimes  it  is  noticed  that  in  a  case  where

sessions  trial  is  warranted,  directions  are  issued  that  on

surrendering  before  the  concerned  trial  judge,  the  accused

shall be enlarged on bail.  Such directions would not commend

acceptance  in  light  of  the  ratio  in  Rashmi  Rekha  Thatoi

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(supra),  Gurbaksh Singh Sibbia (supra), etc., for they neither

come within  the  sweep of  Article  226 of  the Constitution of

India nor Section 482 CrPC nor Section 438 CrPC.  This Court

in  Ranjit  Singh (supra)  had  observed  that  the  sagacious

saying  “a  stitch  in  time  saves  nine”  may  be  an  apposite

reminder and this Court also painfully so stated.  

25. Having reminded the same, presently we can only say that

the  types  of  orders  like  the  present  one,  are  totally

unsustainable,  for  it  is  contrary  to  the  aforesaid  settled

principles and judicial precedents.  It is intellectual truancy to

avoid  the  precedents  and  issue  directions  which  are  not  in

consonance with law.  It is the duty of a Judge to sustain the

judicial balance and not to think of an order which can cause

trauma to the process of adjudication.  It should be borne in

mind  that  the  culture  of  adjudication  is  stabilized  when

intellectual  discipline  is  maintained  and  further  when  such

discipline constantly keeps guard on the mind.  

26. In view of the aforesaid premises, we allow the appeal, set

aside the impugned order of the High Court and direct that the

investigation  shall  proceed  in  accordance  with  law.   Be  it

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clarified that  we have not  expressed anything on any of  the

aspects alleged in the First Information Report.

.............................J.                                                                   [Dipak Misra]

............................ J.  [Amitava Roy]

New Delhi; January 06, 2017