Allahabad High Court
Smt. Brijesh And 7 Ors. vs State Of U.P. And 3 Ors. on 19 June, 2014
Bench: Sudhir Agarwal, Vijay Lakshmi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 34
Case :- CRIMINAL MISC. WRIT PETITION No. - 10315 of 2014
Petitioner :- Smt. Brijesh And 7 Ors.
Respondent :- State Of U.P. And 3 Ors.
Counsel for Petitioner :- Dr. Akhilesh Kumar Sharma
Counsel for Respondent :- Govt. Advocate
Hon'ble Sudhir Agarwal,J.
Hon'ble Mrs. Vijay Lakshmi,J.
1. Heard learned counsel for the petitioner, learned A.G.A. and perused the record.
2. This writ petition under Article 226 of Constitution of India has been filed seeking writ of certiorari for quashing First Information Report dated 12.6.2014 registered as Case Crime No. 101 of 2014, under Section 498A, 323, 504, 506, 307, IPC and 3/4 Dowry Prohibition Act, Police Station Mahila Thana, District Agra.
3. Learned counsel for the petitioners, after some argument could not dispute that allegation contained in FIR discloses commission of cognizable offence and therefore, question of quashing thereof does not arise. However, he submitted that entire family member have been implicated therein while petitioners no.5 and 6 both are going to marry tomorrow i.e. 20.6.2014 and therefore arrest, if any, made by Police would likely to cause serious prejudice to the petitioners.
4. The prayer is for granting stay against arrest though this Court finds no ground for quashing the FIR. Therefore, two aspects in this regard have to be considered which are:
i. Whether an order, granting interim order can be passed when final order is for dismissing writ petition without adjudicating right of the petitioners?
ii. Whether order staying arrest at this stage is otherwise justified?
5. So far as grant of interim relief of staying arrest is concerned, we find that Apex Court has deprecated such practice and has held that if final relief has been declined, no interim relief/interim order should be granted to petitioners. In the case of State of Orissa Vs. Madan Gopal Rungta, AIR 1952 SC 12, High Court declined to grant interim order in the matter on the ground that there was an alternative remedy available to petitioner and, therefore, dismissed the writ petition relegating the petitioner to avail the alternative remedy, but then observing that before filing the suit, 60 days' notice under Section 80 C.P.C. will have to be given, which will take some time, an interim relief was granted by Court. Deprecating this, the Apex Court said that grant of relief under Article 226 is founded only on its decision that a right of the aggrieved party has been infringed. Therefore, existence of right is foundation of exercise of jurisdiction under Article 226. When the Court has decided nothing at all in respect to rights of parties, it would not be justified to grant any relief final or interim, as the case may be, since Article 226 does not confer such jurisdiction. In para 6 of the judgment, the Court said:
"In our opinion, article 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application as the High Court has purported to do. The directions have been given here only to convent the provisions of section 80 of the Civil Procedure Code, and in your opinion that is not with in the scope of article 226. An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in suit or proceeding. If the Court was of opinion that there was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ mandamus or any other direction of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo antes. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not for the purpose of facilitating the institution of such suit, issue directions in the natures of temporary injunctions, under article 226 of the Constitution. In our opinion, the language of article does not permit such an action. On that short ground the judgment of the Orissa High Court under appeal cannot be upheld."
6. The aforesaid dictum has been followed by another Constitution Bench in Amarsarjit Singh Vs. State of Panjab, AIR 1962 SC 1305 (para 22) and Cotton Corporation of India Limited Vs. United Industrial Bank Limited and others AIR 1983 SC 1272 (para 10) and recently in Km. Hema Mishra Vs. State of U.P. and others (2014) 4 SCC 453 (para 22).
7. In view thereof, we find no hesitation in observing that if the prayer for quashing FIR is being declined on the ground that the allegations contained therein discloses cognizable offence, therefore, no interference is called for at this stage, this Court would not be justified in granting any relief as an interim order by staying arrest since it will amount to grant a relief to the petitioner without deciding his right in any manner and this would be against the exposition of law settled by Apex Court in the aforesaid decision.
8. So far as second aspect is concerned, suffice it to mention that arrest is a mode and manner for aid and assistance of investigating agency after a report has been received regarding an offence, whether cognizable or non cognizable. In every case, the arrest is not must. It is the statutory discretion of investigating officer which has to be exercised fairly and objectively. Use of power of arrest is not an arbitrary statutory discretion of investigating officer or the Police but must be founded on valid considerations. Some guidelines in this regard have been established by Apex Court in Joginder Kumar Vs. State of U.P. 1994(4) SCC 260, D.K. Basu Versus State of West Bengal; 1997 (1) SCC 416, K.K. Jerath Vs. Union Territory, Chandigarh and others, JT 1998(2) SC 658 and Lal Kamlendra Pratap Singh Vs. State of U.P.; 2009(3) ADJ 322 etc. Any arbitrary and indiscreet act of arrest, without any proper reason, would be at the personal risk of the officer concerned, for which, he may have to account for. The act of arrest during investigation must precede with the endeavour of officer concerned for making proper investigation and not just to penalise an accused or any other person.
9. If on account of caprices of the officer concerned, any such matter is brought to this Court, showing an arbitrary exercise of power of arrest on the part of officer concerned, such matter may be dealt with by this Court with iron hands but mere possibility or apprehension of arrest would not justify a blanket order from this Court, restraining Police from exercising its statutory discretionary power, which has been conferred on it by the statute in aid and assistance for investigation etc. Reliance has also been placed at the bar on a Constitution Bench decision in Lalita Kumari Vs. Government of Uttar Pradesh and others; (2014) 2 SCC 1. To our view, this decision lends no support to the petitioner in the case in hand for the question raised herein.
10. No interference is, therefore, called for.
11. Subject to the observation made above, the writ petition is dismissed.
Order Date :- 19.6.2014
KA
