Rajasthan High Court - Jodhpur

Chiman Lal Kalaal vs State Of Rajasthan on 19 October, 2022

Bench: Dinesh Mehta

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 6217/2022

Chiman Lal Kalaal S/o Shri Shankar Lal Kalaal, Aged About 46 Years, R/o Mukam Post Devda, Tehsil Ghatol, Dist. Banswara.

----Petitioner Versus The State Of Rajasthan

----Respondent

For Petitioner(s) : Mr. Pradeep Paliwal Mr. Parikshit Nayak For Respondent(s) : Mr. S.K. Bhati, Public Prosecutor

JUSTICE DINESH MEHTA

Order

19/10/2022

1. By way of the present petition, filed under Section 482 of the

Code of Criminal Procedure, 1973 (hereinafter referred to as "the

Code"), the petitioner has challenged the FIR No.144/2022,

registered at Police Station Motagaon, District Banswara for the

offence under section 19/54 of the Rajasthan Excise Act, 1950.

2. Mr. S.K. Bhati, learned Public Prosecutor argued that on the

conclusion of the investigation, a prima-facie offence has been

made out against the petitioner and he is the person, to whom the

excisable goods in question belonged to.

3. Mr. Pradeep Paliwal, learned counsel for the petitioner

submitted that the petitioner has been falsely implicated in the

offence alleged, merely on the basis of statement/information

given by the principal accused Falesh who had stated that the

goods in question belong to the present petitioner.

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4. While refuting the said allegation, learned counsel argued

that since no recovery is to be made from the petitioner, his

custodial interrogation is not necessary hence, either protection

from arrest be granted or the Investigating Officer be directed to

issue a notice under section 41-A of the Code of Criminal

Procedure to the petitioner before arresting him.

5. In response to petitioner's request for grant of pre-arrest bail

and issuance of notice under section 41-A of the Code, learned

Public Prosecutor argued that since provisions of section 438 of

the Code are specifically excluded by the Rajasthan Excise Act,

1950 as provided under subsection (2) of section 49, the

indulgence, as prayed by the petitioner, cannot be granted.

6. Before adverting to petitioner's alternative prayer, gainful

reference of the judgment of Hon'ble the Supreme Court in the

case of Kumari Hema Mishra Vs. State of U.P. & Ors. (2014) 4

SCC 453, particularly the following paragrahs can be made:-

"21. Above mentioned provisions make it compulsory for the police to issue a notice in all such cases where arrest is not required to be made under Clause (b) of sub-section (1) of the amended Section 41. But, all the same, unwillingness of a person who has not been arrested to identify himself and to whom a notice has been issued under Section 41A, could be a ground for his arrest. Legislation has laid down various parameters, warranting arrest of a person, which itself is a check on arbitrary or unwarranted arrest and the right to personal liberty guaranteed under Article 21 of the Constitution of India.

22. I may, however, point out that there is unanimity in the view that in spite of the fact that

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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."

7. It is to be noted that in spite of the similar bar of

applicability of section 438 of the Code in the Uttar Pradesh Excise

Act, Hon'ble the Supreme Court has held that the High Court in

exercise of its powers under Article 226 of the Constitution of

India can grant orders to protect a person in an appropriate case

from his/her arrest.

8. The relevant part of the judgment are reproduced hereinfra:-

"3. 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

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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.

4. It is for this reason, we are of the opinion that in appropriate cases the High Court is empowered to entertain the petition under Article 226 of the Constitution of India where the main relief itself is against arrest. Obviously, when provisions of Section 438 of Cr.P.C. are not available to the accused persons in the State of Uttar Pradesh, under the normal circumstances such an accused persons would not be entitled to claim such a relief under Art. 226 of the Constitution. It cannot be converted into a second window for the relief which is consciously denied statutorily making it a case of casus omissus. At the same time, as rightly observed in para 21 extracted above, the High Court cannot be completely denuded of its powers under Article 226 of the Constitution, to grant such a relief in appropriate and deserving cases; albeit this power is to be exercised with extreme caution and sparingly in those cases where arrest of a person would lead to total miscarriage of justice. There may be cases where pre-arrest may be entirely unwarranted and lead to disastrous consequences. Whenever the High

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Court is convinced of such a situation, it would be appropriate to grant the relief against pre-arrest in such cases. What would be those cases will have to be left to the wisdom of the High Court. What is emphasized is that the High Court is not bereft of its powers to grant this relief under Art. 226 of the Constitution."

9. Having regard to what has been noticed above and being

guided by the principles enunciated by Hon'ble the Supreme Court

in the case of Kumari Hema Mishra (supra) and considering the

fact that no recovery remains to be made from the petitioner, this

Court deems it appropriate to direct the Investigating Officer to

issue a notice under Section 41-A of the Code, if he proposes to

arrest the petitioner.

10. The criminal misc. petition so also stay petition stands

disposed of accordingly.

11. In case any such notice is received by the petitioner, his

rights to take appropriate legal recourse qua such notice shall

stand reserved.