Iserveu Technologies Pvt Ltd vs State Of U.P. And 4 Others
2021 Latest Caselaw 6887 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									A.F.R.
 
Court No. - 49
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 4691 of 2021
 
Petitioner :- Iserveu Technologies Pvt Ltd
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ujjawal Satsangi
 
Counsel for Respondent :- G.A.,Satish Chaturvedi
 
 
 
Hon'ble Bachchoo Lal,J.

Hon'ble Shamim Ahmed,J.

(Per Hon'ble Shamim Ahmed, J.)

1. Heard Sri Ujjawal Satsangi, learned counsel for the petitioner, Sri Satish Chaturvedi, learned counsel for the respondent no. 4 through video conferencing, learned A.G.A. for the State and perused the record.

2. This writ petition has been filed by the petitioner seeking following relief :

"(i) Issue an appropriate writ, order or direction calling for the record and quashing the impugned case crime/FIR No. 0009/2020 dated 07.01.2020, under Section 66D of IT (Amendment) Act, 2008, P.S. Kidwai Nagar, District- Kanpur Nagar.

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents not to arrest the management or employees of the petitioner company in pursuance of the impugned case crime/FIR No. 0009/2020 dated 07.01.2020, under Section 66D of IT (Amendment) Act, 2008, P.S. Kidwai Nagar, District Kanpur Nagar.

(iii) Issue a writ, order or direction in the nature of mandamus directing the respondents not to seize the Bank Account of the petitioner i.e. A/c No. 36190836357 at State Bank of India, Branch KIIT Square, Bhubaneshwar.

(iv) To issue any other writ or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case.

(v) To award the costs in favour of the petitioner."

3. Learned counsel for the petitioner submits that the petitioner's company is a Financial Technology Startup, recognized under the Companies Act, 2013, Department of Promotion of Industry and Internal Trade. The work of the company is to promoting digital financial transaction and works in relation with nationalized and private sector banks to provide mobile banking penetration in the rural area of the country. Evidently, the petitioner's company facilitate the online transaction of money and provide ability to the customers to have digital financial presence. In the event of the entire process, the petitioner's company do not keep any amount and transfer the entire deposited amount in hands of the customers for their utilization. The case of the prosecution is that the respondent no. 4 received a call for KYC update on his phone on 04.01.2020. Thereafter, the respondent no. 4 downloaded an Application i.e. Team Viewer App and soon Rs. 10,00,000/- were deducted from the bank accounts of the respondent no. 4, his son Akash Jain and his wife Meena Jain. Learned counsel for the petitioner further submitted that the Bank of the petitioner received an e-mail from Cyber Crime Cell of Kanpur Nagar on 18.01.2020 and in virtue thereof, the bank account of the petitioner was seized. Learned counsel for the petitioner further argued that the money was transferred from the account of respondent no. 4 to the bank account of Saddam Hussain and thereafter Saddam Hussain transferred the amount to M/s Systematic Services Pvt. Ltd. and the same was further transferred to the bank account of the petitioner. Learned counsel for the petitioner submits that no case under Section 66D of I.T. (Amendment) Act, 2008 is made out against the petitioner and prays to quash the impugned F.I.R.

4. Learned A.G.A. as well as learned counsel for the respondent no. 4 have jointly submitted that the allegations levelled in the FIR is correct and it is the matter of investigation and cognizable offence is made out against the petitioner and there is no justification for quashing of the impugned FIR.

5. Learned counsel for the petitioner has made reference to the judgment of the Apex court in the case of State of Haryana vs. Bhajanlal), AIR 1992 SC 604. Learned counsel for the petitioner in particularly, referred to paragraph 108(7) of the said judgment which is quoted herein for ready reference.

"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercise.

... ... ...

(7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

6. Although the learned counsel for the petitioner has relied on judgment in the case of Bhajanlal(supra), we do not find pleading of the nature required to make out a case under paragraph 108(7) of the judgment. The counsel for the petitioner was asked to invite attention of the Court towards the pleading to fall under paragraph 108(7) of the judgment in the case of Bhajanlal(supra). He failed to do so.

7. The allegations made in the F.I.R. discloses an offence. Any comments on merits may cause prejudice to the petitioner as the investigation is yet to be completed.

8. In view of the judgment of Apex Court in the case of State of Telangana Vs. Habib Abdullah Jeelani & Ors.; (2017)2 SCC 779, the jurisdiction of this Court is quite limited for quashing the F.I.R. It cannot marshal and record finding on the questions of fact. It remains in the domain of the Investigating Officer. The allegation in the F.I.R. is serious and regarding illicit money transaction and other allegations also which are quoted hereunder for ready reference.

"सेवा में थाना प्रभारी किदवई नगर, कानपुर दिनांक 04.01.2020 महोदय जी, साइबर फ्राड सम्बन्ध में मेरे बैंक खाते के बारे में मेरे पास Paytm के लिये KYC कराने के लिए मो०नं० 8918536632 से फोन आया था आज दिनांक 04.01.2020 समय लगभग 16.00 Hrs Pm उन्होंने हमसे QS app को Play store से Team VeEWerapp डाउनलोड करवाया फिर उसके निर्देशानुसार हम आगे बढते गये रहे। हमने देखा कि उन्होंने हमसे Rs. 1/-PAYTM में ट्रांसफर करवाया और उसके बाद मेरे पास कई OTP आने लगो फिर मेरे एकाउंट से Rs. 10,00,004.90 (Rs. Ten LAKH and Four and paise Ninety only) डेबिट हो गए। फिर Rs. 42,000/- निकल गए फिर Rs.10,000/- निकल गए उसके बाद Rs.5,000/-निकल गये। उसी समय Rs. 1,00,000/- भी निकल गए। लेकिन यह Rs.1,00,000/-PAYTMसे हमें मनोज कुमार जैन के खाते में आकाश जैन के खाते से भी हमारे 1,00,000/-निकल गए। इस संबंध में हमने HDFC BANK में अपने खाता CEASE करा दिये। और REF.NO.111033377हमें दिया गया। इसके अलावा हमारे पास फ्राड करने वाला का फोन आया 8918536632 मोबाइल नं० से और दुबारा पैसे का लेन देन फ्राड करने के लिए और मेरे अकाउंट HDFC BANK, गोविंद नगर कानपुर में है। जिसकी विवरणी निम्न है। दिनांक 04.01.2020 account number savings bank 1 02981600006383 मनोज कुमार जैन, निकासी-10,00,004.90/- debit card NO-43862401352938332.02981530005323मीना जैन, निकासी 42,000/- निकासी Rs.10,000/कुल 52000/- debit card NO- 41602108000891643.02981600005640आकाश जैन, निकासी- Rs.1,00,000/- निकासी Rs.5000/- कुल 105000/- debit card no-5129670600714344 यह सब कार्यवाही 16:00pm बजे से 16:30 तक के लगभग हुई। कृपया आपका विभाग मेरी मदद करे जिससे कि मेरे रुपये मुझे मिल जाए अतिशय धन्यवाद sd अंग्रेजी अपठनीय 04.01.2020 मनोज कुमार जैन R/o 128/589, K Block, मेन रोड, किदवई नागर कानपुर-208011 थाना किदवई नगर Mob-9336331895 sdअंग्रेजी अपठनीय 04.01.2020 नोट- मैं का० 5260 आकाश तिवारी प्रमाणित करता हूँ कि यह तहरीर व कायमी मेरे द्वारा बोल बोलकर टाइप करायी गयी।"

9. In the recent judgment dated 27.11.2020 in Criminal Appeal No.742 of 2020 (Arising out of SLP (Crl) No.5598 of 2020 (Arnab Manoranjan Goswami vs. State of Maharahtra and other) Hon'ble Supreme Court has reiterated the principles with regard to quashing of F.I.R. and after referring to various earlier judgments observed as under :

"42 Now, it is in this background that it becomes necessary for this Court to evaluate what, as a matter of principle, is the true import of the decision of this Court in Habib Jeelani (supra). This was a case where, on the basis of a report under Section 154 off the CrPC, an FIR was registered for offences punishable under Sections 147, 148, 149 and 307 of the IPC. Challenging the initiation of the criminal action, the inherent jurisdiction of the High Court to quash an FIR was invoked. The High Court (as paragraph 2 of the judgment of this Court in Habib Jeelani (supra) indicates) expressed its "disinclination to interfere on the ground that it was not appropriate to stay the investigation of the case". It was in this background that the following issue was formulated in the first paragraph of the judgment of this Court, speaking through Justice Dipak Misra (as he then was), for consideration:

"1. 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 investigating agency not to arrest the accused persons during the course of investigation."

Between paragraphs 11 and 15, this Court then evaluated the nature of the jurisdiction under Section 482 of the CrPC or under Article 226 of the Constitution for quashing an FIR and observed:

"(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 [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : AIR 1992 SC 604] the two- Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad [Hazari Lal Gupta v. Rameshwar Prasad, (1972) 1 SCC 452 : 1972 SCC (Cri) 208] , Jehan Singh v. Delhi Admn. [Jehan Singh v. Delhi Admn., (1974) 4 SCC 522 : 1974 SCC (Cri) 558 : AIR 1974 SC 1146] , Amar Nath v. State of Haryana [Amar Nath v. State of Haryana, (1977) 4 SCC 137: 1977 SCC (Cri) 585] , Kurukshetra University v. State of Haryana [Kurukshetra University v. State of Haryana, (1977) 4 SCC 451 : 1977 SCC (Cri) 613] , State of Bihar v. J.A.C.Saldanha [State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554 : 1980 SCC (Cri) 272 : AIR 1980 SC 326] , State of W.B. v. Swapan Kumar Guha [State of W.B. v. Swapan Kumar Guha, (1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949] , Nagawwa v. Veeranna Shivalingappa Konjalgi [Nagawwa v. Veeranna Shivalingappa Konjalgi, (1976) 3 SCC 736 : 1976 SCC (Cri) 507 : AIR 1976 SC 1947] , Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692 : 1988 SCC (Cri) 234] , State of Bihar v. Murad Ali Khan [State of Bihar v. Murad Ali Khan, (1988) 4 SCC 655 : 1989 SCC (Cri) 27 : AIR 1989 SC 1] 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 channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad cases wherein such power should be exercised.

(12). The illustrations given by the Court need to be recapitulated: (Bhajan Lal case [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : AIR 1992 SC 604] , SCC pp. 378-79, para 102)

(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 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 Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and 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 the Court's inherent power can be exercised.

13. 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.

14. In this regard, it would be seemly to reproduce a passage from Kurukshetra University [Kurukshetra University v. State of Haryana, (1977) 4 SCC 451 : 1977 SCC (Cri) 613] wherein Chandrachud, J. (as his Lordship then was) opined thus: (SCC p. 451, para 2) ―

"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. 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."

(15). 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 case [Kurukshetra University v. State of Haryana, (1977) 4 SCC 451 : 1977 SCC (Cri) 613] compels us to observe that we are also surprised by the impugned order."

43 Thereafter, this Court noted that "the High Court has not referred to allegations made in the FIR or what has come out in the investigation". While on the one hand, the High Court declined in exercising its jurisdiction under Section 482 to quash the proceedings, it nonetheless directed the police not to arrest the appellants during the pendency of the investigation. It was in this context that this Court observed that the High Court had, while dismissing the applications under Section 482, passed orders that if the accused surrenders before the trial Magistrate, he shall be admitted to bail on such terms and conditions as it was deemed fit and appropriate. After adverting to the earlier decision in Hema Mishra vs State of UP, (2014) 4 SCC 453, this Court observed:

"23. We have referred to the authority in Hema Mishra [Hema Mishra v. State of U.P., (2014) 4 SCC 453 : (2014) 2 SCC (Cri) 363] 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 [Lal Kamlendra Pratap Singh v. State of U.P., (2009) 4 SCC 437 : (2009) 2 SCC (Cri) 330] . The said decision, needless to say, has to be read in the context of the 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 226 of the Constitution or Section 482 CrPC, it exercises 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 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."

44 The above decision thus arose in a situation where the High Court had declined to entertain a petition for quashing an FIR under Section 482  Cr.P.C.However, it nonetheless directed the investigating agency not to arrest the accused during the pendency of the investigation. This was held to be impermissible by this Court. On the other hand, this Court clarified that the High Court if it thinks fit, having regard to the parameters for 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". Clearly therefore, the High Court in the present case has misdirected itself in declining to enquire prima facie on a petition for quashing whether the parameters in the exercise of that jurisdiction have been duly established and if so whether a case for the grant of interim bail has been made out. The settled principles which have been consistently reiterated since the judgment of this Court in State of Haryana vs Bhajan Lal, 1992 Supp.1 SCC 335("Bhajan Lal") include a situation where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. This legal position was recently reiterated in a decision by a two-judge Bench of this Court in  Kamal Shivaji Pokarnekar vs State of Maharashtra, (2019)14 SCC 350

45 The striking aspect of the impugned judgment of the High Court spanning over fifty-six pages is the absence of any evaluation even prima facie of the most basic issue. The High Court, in other words, failed to apply its mind to fundamental issue which needed to be considered while dealing with a petition for quashing under Article 226 of the Constitution or Section 482 of the CrPC. The High Court, by its judgment dated 9 November 2020, has instead allowed the petition for quashing to stand over for hearing a month later, and therefore declined to allow the appellant''s prayer for interim bail and relegated him to the remedy under Section 439 of the CrPC. In the meantime, liberty has been the casualty. The High Court having failed to evaluate prima facie whether the allegations in the FIR, taken as they stand, bring the case within the fold of Section 306 read with Section 34 of the IPC, this Court is now called upon to perform the task."

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57 While considering an application for the grant of bail under Article 226 in a suitable case, the High Court must consider the settled factors which emerge from the precedents of this Court. These factors can be summarized as follows:

(i) The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;

(ii) Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses;

(iii) The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice;

(iv) The antecedents of and circumstances which are peculiar to the accused;

(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and

(vi) The significant interests of the public or the State and other similar considerations.

58 These principles have evolved over a period of time and emanate from the following (among other) decisions: Prahlad Singh Bhati vs NCT, Delhi, (2001) 4 SCC 280; Ram Govind Upadhyay vs Sudarshan Singh, (2002) 3 SCC 598; State of UP vs Amarmani (2001) 4 SCC 280 (2002) 3 SCC 598  J Tripathi, (2005)8 SCC 2133; Prasanta Kumar Sarkar vs Ashis Chatterjee, (2010) 14 SCC 496; Sanjay Chandra vs CBI, (2012) 1 SCC 40; and P. Chidambaram vs Central Bureau of Investigation, (Criminal Appeal No.1605 of 2019 decided on 22 October 2019).

59 These principles are equally applicable to the exercise of jurisdiction under Article 226 of the Constitution when the court is called upon to secure the liberty of the accused. The High Court must exercise its power with caution and circumspection, cognizant of the fact that this jurisdiction is not a ready substitute for recourse to the remedy of bail under Section 439 of the CrPC. In the backdrop of these principles, it has become necessary to scrutinize the contents of the FIR in the case at hand. In this batch of cases, a prima facie evaluation of the FIR does not establish the ingredients of the offence of abetment of suicide under Section 306 of the IPC. The appellants are residents of India and do not pose a flight risk during the investigation or the trial. There is no apprehension of tampering of evidence or witnesses. Taking these factors into consideration, the order dated 11 November 2020 envisaged the release of the appellants on bail.

60 Human liberty is a precious constitutional value, which is undoubtedly subject to regulation by validly enacted legislation. As such, the citizen is subject to the edicts of criminal law and procedure. Section 482 recognizes the inherent power of the High Court to make such orders as are necessary to give effect to the provisions of the CrPC  "or prevent abuse of the process of any Court or otherwise to secure the ends of justice". Decisions of this court require the High (2005) 8 SCC 21 (2010) 14 SCC 496 (2012) 1 SCC 40 Criminal Appeal No. 1605 of 2019 decided on 22 October 2019  Courts, in exercising the jurisdiction entrusted to them under Section 482, to act with circumspection. In emphasising that the High Court must exercise this power with a sense of restraint, the decisions of this Court are founded on the basic principle that the due enforcement of criminal law should not be obstructed by the accused taking recourse to artifices and strategies. The public interest in ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. That indeed is one - and a significant - end of the spectrum. The other end of the spectrum is equally important: the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty. The Code of Criminal Procedure of 1898 was enacted by a legislature which was not subject to constitutional rights and limitations; yet it recognized the inherent power in Section 561A. Post- Independence, the recognition by Parliament of the inherent power of the High Court must be construed as an aid to preserve the constitutional value of liberty. The writ of liberty runs through the fabric of the Constitution. The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower Courts in this country must be alive. In the present case, the High Court could not but have been cognizant of the specific ground which was raised before it by the appellant that he was being  made a target as a part of a series of occurrences which have been taking place since April 2020. The specific case of the appellant is that he has been targeted because his opinions on his television channel are unpalatable to authority. Whether the appellant has established a case for quashing the FIR is something on which the High Court will take a final view when the proceedings are listed before it but we are clearly of the view that in failing to make even a prima facie evaluation of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty. Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum - the district judiciary, the High Courts and the Supreme Court - to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum - the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting."

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"63 More than four decades ago, in a celebrated judgment in State of Rajasthan, Jaipur vs Balchand, (1977)4 SCC 306, Justice Krishna Iyer pithily reminded us that the basic rule of our criminal justice system is bail, not jail. The High Courts and Courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times. We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the 'subordinate judiciary'. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as undertrials. Courts must be alive to the situation as it prevails on the ground - in the jails and police stations where human dignity has no protector. As judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system''s primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the "solemn expression of the humaneness of the justice system". Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard."

10. Taking note of the nature of the allegation made in the F.I.R. and the law laid down by the Hon'ble Apex Court and the discussion made above, this Court is not inclined to quash the F.I.R. Accordingly, the writ petition fails and is dismissed.

11. No order as to costs.

Order Date :- 1.7.2021

SA