HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?AFR Court No. - 7 Case :- MISC. BENCH No. - 4153 of 2015 Petitioner :- Smt. Manju Misra Respondent :- The State Of U.P Thru Principal Secy., Home Affairs And Ors. Counsel for Petitioner :- Gopal Trivedi,Lalit Kishore Pandey Counsel for Respondent :- Govt. Advocate,Arun Sinha,Riyaz Ahmad Hon'ble Ajai Lamba,J.
Hon'ble Akhtar Husain Khan,J.
(Oral)
1. This petition seeks issuance of a writ in the nature of certiorari quashing First Information Report lodged as Case Crime No.131 of 2015 under Sections 420, 504, 506, 467, 468, 471 I.P.C., P.S. Bakshi Ka Talab, district Lucknow (Annexure-1).
2. In the second prayer, the petition seeks issuance of a writ in the nature of mandamus directing the Investigating Officer not to arrest the petitioner in connection with Case Crime No.131/2015 under Sections 420, 504, 506, 467, 468, 471 I.P.C., P.S. Bakshi Ka Talab, district Lucknow .
3. Learned counsel appearing for the petitioner states at the outset that the petitioner does not press the petition in regard to the first prayer, noted above. The petitioner presses for grant of second prayer in view of peculiar facts and circumstances of the case, viz. the first Information Report is against a number of persons. The petitioner is only one of such accused, however, not a beneficiary in the transaction.
4. Contention of learned counsel for the petitioner is that the petitioner is not a beneficiary; rather will not get the property at issue on account of actions of the main accused. It has been alleged in the First Information Report that Rajnish Kumar Mishra, vide sale-deed executed on 31.12.2014, sold the property in question in favour of complainant (respondent No.3), represented by Mr. Siddharth Sinha, Advocate (Caveator). Just four months thereafter, the property was gifted to the petitioner by Rajnish Kumar Mishra through a gift deed executed on 6.4.2015. The petitioner did not have any intention to frustrate the right/title of private respondent Preeti, which was gained through execution of sale-deed, prior to execution of the Gift Deed.
5. Contention of learned counsel for the petitioner is that the petitioner had no role to play in the transaction. No overt act can be attributed to the petitioner. The documents are registered and can be procured from the office of Sub Registrar. The petitioner has no knowledge of any exclusive fact which is required to be extracted by way of interrogation of the petitioner.
6. Learned counsel appearing for the caveator admits the facts, as noted above. It has been admitted that the petitioner is not the transferor of the property, nor appears to be the beneficiary.
7. Learned counsel for the parties pray for disposal of the case at this stage itself.
8. We have heard learned counsel.
9. In the considered opinion of the Court, case of the petitioner is clearly distinguishable from that of transferor of the property, Rajnish Kumar Mishra.
10. In Hema Mishra versus State of U.P. AIR 2014 SC 1066, in paras 22, 28, 35, 36 and 37, the Hon'ble Supreme Court of India has held the following :
"22. 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 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.
28. I would like to remark that in the absence of any provisions like Section 438 of Cr.P.C. applicable in the State of Uttar Pradesh, there is a tendency on the part of the accused persons, against whom FIR is lodged and/or charge-sheet is filed in the Court to file Writ Petition for quashing of those proceedings so that they are able to get protection against the arrest in the interregnum which is the primary motive for filing such petitions. It is for this reason that invariably after the lodging of FIR, Writ Petition under Article 226 is filed with main prayer to quash those proceedings and to claim interim relief against pre-arrest in the meantime or till the completion of the trial. However, the considerations which have to weigh with the High Court to decide as to whether such proceedings are to be quashed or not are entirely different than that of granting interim protection against the arrest. Since the grounds on which such an FIR or charge sheet can be quashed are limited, once the Writ Petition challenging the validity of FIR or charge-sheet is dismissed, the grant of relief, incidental in nature, against arrest would obviously not arise, even when a justifiable case for grant of anticipatory bail is made out .
35. It would be pertinent to mention here that in light of above mentioned statements and cases, the High Court would not be incorrect or acting out of jurisdiction if it exercises its power under Art.226 to issue appropriate writ or direction or order in exceptional cases at the behest of a person accused of an offence triable under the Act or offence jointly triable with the offences under the Act.
36. It is pertinent to mention that though the High Courts have very wide powers under Art.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 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.
37. Thus, such a power has to be exercised very cautiously keeping in view, at the same time, that the provisions of Article 226 are a devise 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 authorities indiscriminately making pre-arrest of the accused persons. In entertaining such a petition under Art.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 Art.226 is not to be exercised liberally so as to convert it into Section 438,Cr.P.C. proceedings, keeping in mind that when this provision is specifically omitted in the State of Uttar Pradesh, it cannot be resorted to as to back door entry via Art.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 relief in the nature of anticipatory bail in exercise of its power under Art. 226 of the Constitution. It is again clarified that this power has to be exercised sparingly in those cases where it is absolutely warranted and justified."
11. The Court is of the considered opinion that the Court is required to balance the equities while considering petition for issuance of a writ in the nature of mandamus directing the investigating officer not to arrest a person accused of committing an offence.
12. No person can be deprived of his personal liberty, except in accordance with the procedure established by law. The procedure in such cases, has been provided under the Code of Criminal Procedure, 1973. The investigation of a case is required to be conducted under Chapter XII of the said Code. A person accused of committing a cognizable offence can be arrested by the investigating agency.
13. This Court, however, is required to deliberate various aspects of the case, while ruling on petition of an accused approaching this Court for issuance of a writ in the nature of mandamus, as sought by the petitioner. In view of the judgment rendered by the Hon'ble Supreme Court of India in Hema Mishra's case (supra), writ in the nature of mandamus can be issued, in case petitioner shows exceptional circumstances. In the considered opinion of the Court, the various parameters to be considered would include seriousness/gravity of the offence; role played by the accused approaching the Court, in the incident/transaction; antecedents/criminal history of such accused petitioner; nature of offence allegedly committed; chances of the accused/ petitioner escaping from the clutches of law, or delaying the process of investigation or trial; in case relief is granted, whether it would result in interference with investigation process; whether the investigating agency apprehends that a fact would be discovered as a consequence of information received from the accused; whether custodial interrogation of accused/petitioner is required for effective investigation; and whether there is prima facie evidence/material available to indicate involvement of the petitioner in commission of the crime. These aspects, as noted above, are some, and not all the factors to be considered while weighing the liberty of such person vis-a-vis public interest and interest of effective investigation.
14. The petitioner is required to make out a special/exceptional case for grant of relief, as sought by her. It is markedly to be seen whether the petitioner/ accused has been evading the process of law. The larger interest of the public or the State is required to be considered while contemplating whether relief of pre arrest bail is to be given, or not.
15. Keeping in view the facts and circumstances of the case, in context of the law, as laid down by Hon'ble supreme Court of India in Hema Mishra's case (supra), as extracted above, we are of the considered opinion that manifest injustice would be caused if the petitioner is taken in custody. The petitioner admittedly is not a beneficiary in the transaction. The evidence is documentary in nature. No recovery is to be affected from the petitioner. Custodial interrogation of the petitioner is not required during investigation proceedings.
16. Rajnish Kumar Mishra, the main accused executed a gift deed in favour of the petitioner. The pleaded case of the petitioner is that the petitioner had no knowledge of the earlier sale-deed executed in favour of respondent No.3. In such circumstances, involvement of the petitioner in the crime appears to be remote. Equity and law, considered in context of the facts, demand that the prayer pressed by the petitioner is allowed.
17. Liberty is a precious right of every citizen of the country. It would be miscarriage of justice if the petitioner is allowed to be taken in custody. The petitioner is entitled to protection of the Court, particularly because by way of arrest of the petitioner and curtailing his liberty, interest of investigation shall not be advanced. Effective investigation can be conducted even without arrest of the petitioner, in view of the facts and circumstances, noted above. The offence per se is not against the public; rather involves transfer of property having civil consequences. The transaction has civil complexion. The respondents have not drawn attention of the Court towards any material which would indicate that petitioner has criminal antecedents. In the opinion of the Court, this is one of the exceptional cases, in which extraordinary writ jurisdiction is required to be invoked.
18. In view of above, a writ in the nature of mandamus is issued. It is directed that in the event of arrest in Case Crime No.131 of 2015 under Sections 420, 504, 506, 467, 468, 471 I.P.C., P.S. Bakshi Ka Talab, district Lucknow, the petitioner shall be enlarged on bail on her furnishing bail bonds to the satisfaction of the arresting/Investigating Officer, subject to the following conditions :
(1) The petitioner shall make herself available for interrogation as and when required;
(2) The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court, or to the investigating agency; and (3) The petitioner shall not leave India without the previous permission of the Court.
It is further directed that this order shall subsist till 10 days after the petitioner receives a notice of filing of investigation report under Section 173 CrPC, within which period, the petitioner would be at liberty to apply for regular bail. The time thus granted would not be extended by this Court.
It is specifically provided that the prosecuting agency would be at liberty to approach this Court for withdrawing the concession granted to the petitioner, in case the petitioner violates any of the conditions imposed by this Court.
19. The petition is allowed in the above terms.
Order Date :- 18.5.2015 kkb/