Jaiveer Singh vs State Of U.P. And 2 Others
2014 Latest Caselaw 2342 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 10426 of  2014
 

 
Petitioner :- Jaiveer Singh
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Amit Kumar Gaur
 
Counsel for Respondent :- Govt. Advocate,Baleshwar Chaturvedi
 

 
Hon'ble Sudhir Agarwal, J.

Hon'ble Mrs. Vijay Lakshmi, J.

1. Heard Sri A.K. Gaur, learned counsel for petitioner; learned A.G.A. and Sri Kamal Kesarwani, Advocate, holding brief of Sri Baleshwar Chauturvedi, appearing for respondents; 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. 143 of 2014, under Sections 135, 136 of Electricity Act, Police Station Barnahal, District Mainpuri.

3. From a perusal of averments made in F.I.R., it cannot be said that cognizable offence is not made out. Whether these allegations are correct, cannot be examined at this stage.

4. In a matter praying for quashing of F.I.R., without there being anything otherwise on record, the only scope of judicial review under Article 226 of the Constitution is from a perusal of F.I.R. and considering the averments made therein on their face value to be correct, if can be said that a cognizable offence is made out, the Court would not interfere.

5. Learned counsel for petitioner, however, contended that petitioner is ready to pay compounding charges and, therefore, this Court must follow the order dated 12.6.2014 passed by this Court in Criminal Misc. Writ Petition No. 10095 of 2014 (Lajjaram Vs. State of U.P. and others):

"Heard learned counsel for the petitioner and learned Additional Government Advocate.

Petitioner seeks quashing of the First Information Report dated 7.6.2014 being Case Crime No. 136 of 2014, under Section 135 Electricity Act, Police Station-Barnahal, District-Mainpuri.

We have examined the First Information Report. It does disclose a cognizable offence. No case for quashing of the First Information Report is made out.

However, it is provided that if the petitioner deposits the compounding fee and assessed amount in respect of the alleged theft of electricity within 30 days from today, he may not be arrested till submission of the police report.

In case of non-compliance of any of the conditions mentioned herein above, he shall not be entitled to the benefits of this order.

Writ petition is disposed of."

6. Having gone through the same, we do not find that any principle of law has been laid down so as to bind this Court on an exposition of law.

7. So far as the grant of interim relief of staying arrest is concerned, we find that Apex Court has deprecated such practice and has held, if final relief has been declined, no interim relief/interim order should be granted to petitioners. The first such case is State of Orissa Vs. Madan Gopal Rungta AIR 1952 SC 12. Therein High Court declined to grant final relief on the ground that there was an alternative remedy available to petitioner and, therefore, dismissed the writ petition relegating petitioner to avail alternative remedy, but then observing that before filing 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. Deprecating this, 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 circumvent the provisions of section 80 of the Civil Procedure Code, and in our opinion that is not within 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 a 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 of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante. 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 nature of temporary injunctions, under article 226 of the Constitution. In our opinion, the language of article 226 does not permit such an action. On that short ground the judgment of the Orissa High Court under appeal cannot be upheld."

8. The aforesaid dictum has been followed in Amarsarjit Singh Vs. State of Punjab AIR 1962 SC 1305 (para 22), 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).

9. In view thereof, we have no hesitation in observing that the prayer for quashing the F.I.R. if is declined on the ground that 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 decisions.

10. Even otherwise, at this stage, this Court is not examining legality or otherwise of arrest made by police, since neither any one has been arrested nor this writ petition as such has been filed with a complaint that police or investigating officer has committed violation of any provision pertaining to arrest of any person or the petitioner himself. The main relief in the writ petition is for quashing of first information report which, admittedly having disclosed commission of cognizable offence is not liable to be interfered with at this stage.

11. So far as police 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 laid down 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 penalize an accused or any other person.

12. 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.

13. In view of above, no interference is called for.

14. The writ petition is dismissed.

Dt. 20.06.2014

PS