Rahees & Another vs State Of U.P. & 3 Others
2013 Latest Caselaw 3300 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 12009 of 2013
 

 
Petitioner :- Rahees & Another
 
Respondent :- State Of U.P. & 3 Others
 
Counsel for Petitioner :- D.S. Chauhan
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Mrs. Sunita Agarwal,J.

1. This is a writ petition for quashing of first information report dated 09.06.2013, registered as Case Crime No. 552 of 2013, under Sections 147, 148, 149, 307, 353, 332, 504, 506, 354B IPC and Section 25/27 Arms Act, Police Station Civil Lines, District Aligarh.

2. From perusal of first information report it cannot be said that commission of a cognizable offence is not made out. There is no material on record to demonstrate that proceedings initiated by means of aforesaid report are vexatious, frivolous or otherwise illegal. In the circumstance, no interference is called for.

3. The learned counsel for the petitioners then submitted that respondents-authorities be directed not to arrest petitioners by observing the law laid down by Apex Court in Joginder Kumar Vs. State of U.P. 1994Cri.L.J. 1981=1994(4) SCC 260, Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (4) SCC 437 and this Court in Smt. Amarawati and another Vs. State of U.P., 2005(1) AWC 416. He also said that similar orders have been passed by this Court in many matters and, therefore, following the principle of parity similar direction must be issued in this case also.

4. We propose to examine on this aspect of the matter with deeper scrutiny. It is not the case of petitioners that they have already surrendered or that though they have attempted to surrender but there is any illegal, unauthorised obstruction created by respondents in such endeavour of petitioners. It is also not the case that any authority of this Court or Apex Court though cited before court concerned but it has refused to consider the same or ignored. No such allegations have been made.

5. The law laid down by Apex Court by virtue of Article 145 of the Constitution of India, is binding on all courts and authorities across the nation and everybody is supposed to act in the aid and enforcement of such law laid down by Supreme Court. There is no presumption that the respondents shall not follow the law laid down by Supreme Court. There is also no presumption that a decision of Supreme Court laying down certain law, if cited, in support of arguments by a party, that would not be looked into and appreciated by anyone. To follow the law laid down by Supreme Court, no sanction or approval or direction of this Court is required. To ask for such direction, when there is no factual foundation in the writ petition, is nothing but doubting the capability, approach and efficiency of the respondents, which is not in the larger public interest. Moreover, in absence of any factual foundation, it is well established that no futile or uncalled for directions are to be issued by this Court. Its hand are already full of work and rather extremely loaded therewith, hence entertaining cases just for futile direction, which ex facie deserved to be dismissed, would be nothing but encouraging avoidable unnecessary burden upon this Court.

6. Even otherwise a direction to follow a decision of Apex Court without appreciating, whether it applies on the facts and circumstances of the case and would be cited by parties concerned, is like anticipating something, which is not existing in presenti and on the facts of the case, may not be applicable.

7. Moreover, in the entire writ petition there is no factual foundation laid down by petitioners that police authorities are trying to arrest them illegally disregarding the directions of Apex Court in Joginder Kumar (supra) and Lal Kamlendra Pratap Singh (supra) as well as this Court in Smt. Amarawati (supra). In absence of any factual foundation the direction sought from this Court are neither justified nor appropriate nor should be issued by presuming certain facts which are not part of record and petitioners themselves have not made any complaint in respect thereof.

8. It may also be pointed out that in none of the cases referred to above there is any complete embargo against arrest by police if it is otherwise justified.

9. In Joginder Kumar (supra), a habeas corpus writ petition under Article 32 of the Constitution was filed before Supreme Court alleging about unlawful detention of petitioner (a practising lawyer) by police authorities and seeking his release. The Senior Superintendent of Police, Ghaziabad appeared before Court and admitted to have detained petitioner for five days, not in detention but for taking his help in inquiry/investigation of an offence of abduction. Since the petitioner was already released by police, the Court found that relief in habeas corpus now cannot be granted. Yet it enquired as to how and in what circumstances, without informing the court concerned, an individual could be detained by police for five days. The Court found it a case of massive violation of human rights, besides the statutory legal provisions relating to arrest etc. The Court held that law of arrest is one of balancing individual rights, liberties and privileges, on the one hand; and, individual duties, obligations and responsibilities on the other hand. The Court said that an arrest cannot be made merely for the reason that a police officer is empowered under law to do so. The existence of power is one thing and justification for exercise thereof is another. Genuine, justified and satisfactory reasons must exist before a police officer should go to arrest a person so as to curtail his fundamental right of life and liberty. A person is not liable to arrest merely on suspicion of complicity of offence. Except in heinous offences, an arrest must be avoided unless there exists reason therefor. That was not a case where after inquiry or investigation by police, a charge sheet was filed and thereupon an incumbent was to surrender himself to the Court, and the power of Court either to release him on bail if so requested, or to sent him in judicial custody was under consideration.

10. This decision then was considered in D.K. Basu Versus State of West Bengal 1997 (1) SCC 416 which was a public interest litigation entertained by Supreme Court taking cognizance of a letter received from Executive Chairman, Legal Aid Services, West Bengal complaining about certain custodial deaths.

11. The decision in Joginder Kumar (supra) in similar circumstances has been referred and followed subsequently also in K.K. Jerath Vs. Union Territory, Chandigarh and others, JT 1998(2) SC 658 which was a case of anticipatory bail under Section 438 Cr.P.C. apprehending arrest during a C.B.I. inquiry. It was attempted to argue that there is presumption of innocence in favour of each individual until charge against him is established and, therefore, it would not be consistent with philosophy of Constitution that such a person should be subjected to interrogation by application of psychological or ambient pressures much less physical torture. It was stressed that Apex Court has a duty to protect a citizen against such inroads of these fundamental rights. The Apex Court while dismissing petition observed that in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation, it would be allowed otherwise there could be hurdles in investigation even resulting in tampering of evidence. In other words the Apex Court did not find any attraction in the arguments for the reason that a bail application has to be considered in the light of already established principle through various judicial precedents and not on mere asking.

12. There are several subsequent cases also wherein the Apex Court has distinguished the cases where there was no allegation of misuse of power of arrest by police authorities and an incumbent was arrested having been found prima facie guilty of commission of a cognizable offence.

13. In Lal Kamlendra Pratap Singh (supra) the matter came to be considered before the Court for quashing of a first information report. Here also apprehended arrest due to mere registration of a first information report. The matter was brought before this Court seeking quashing of first information report. The High Court dismissed the application and thereagainst the matter was taken to Apex Court. A complaint was made that during investigation or inquiry, petitioners apprehend their arrest by police authorities in an arbitrary manner. It is in this context the Court reminded police authorities to follow the dictum and direction laid down in Joginder Kumar (supra). When the matter was pending before Supreme Court, the police completed investigation and submitted a charge sheet. The Court then declined to interfere since the charge sheet was submitted and permitted petitioner to approach the court concerned by filing a bail application. The Court approved and reminded a seven Judges decision of this Court in Smt. Amarawati (supra) wherein an observation was made that the absence of power of anticipatory bail in State of U.P. would not debar the concerned Court/Magistrate to grant an interim bail if there is any likelihood of delay in disposal of bail application finally.

14. Here also in Lal Kamlendra Pratap Singh (supra), there is no direction by Apex Court that even if there is no factual foundation or that there is some justification for the police still a blanket direction can be issued to police which may, in a given case, influence or interfere with the smooth investigation. It is also well settled that no uncalled for observations or directions should be issued by this Court unless they are necessary for giving due justice to the parties before Court, founded on pleadings and facts of the case.

15. So far as various orders cited at Bar, we find that in none of those case all these aspects have, as discussed above, have been raised, argued and decided and those judgements do not lay down any binding precedent. The ultimate direction or action of the Court do not constitute a binding precedent. What is binding precedent is the ratio, i.e., the law laid down by this Court. The law is laid down when an issue is raised, argued and decided. That is not so in respect to orders cited at Bar.

16. In view of above discussion, we find neither any justification nor otherwise any ground so as to interfere with the first information report impugned in this writ petition or to give any other direction.

17. The writ petition lacks merit. Dismissed.

Order Date :- 18.6.2013

AK