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No anticipatory bail by the back door- Allahabad HC

Written by: Staff
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Allahabad, July 6 (UNI) The Allahabad High Court has held that anticipatory bail should not be permitted by the back door by liberally staying arrests in exercise of the writ jurisdiction under Article 226 of the Constitution.

'' Under the garb of seeking quashing of criminal proceedings'' observed the full bench comprising Justices B S Chauhan, Sushil Harkauli and Amar Saran, '' the relief of anticipatory bail, which is not available in the state of U P, cannot be obtained, for the reason that a litigant cannot be permitted to achieve something indirectly, which can not be sought directly''.

Relying on a number of decisions of the Supreme Court and the Privy Council, the full bench rejected the reference preferred by a division bench in the case of Ajit Singh alias Muraha versus State of U P and others and upheld the earlier full bench in the case of Satya Pal which had held that arrests can be stayed in exercise of the extraordinary powers under Article 226 only in those cases where the FIR does not disclose a cognizable offence in accordance with the parameters laid down by the Supreme Court in state of Haryana versus Bhajan Lal and other cases. The interpretation given by the division bench on the basis of the Supreme Court decision in '' Joginder Kumar vs State of U P and others'' 1994 (4) ssc 260, that even those cases where the F I R disclosed a cognizable offence, yet interference with the investigation for the purpose of staying arrests in the writ jurisdiction was possible was held to be not in accordance with law. The distinction made in Joginder Kumar's case between the power of arresting an accused and the necessity of effecting arrest did not enlarge the powers to the high court for staying arrests even when the F I R disclosed a cognizable offence.

Joginder Kumar's case which was a habeas corpus petition only contained directions for the police on the steps to be taken whilst effecting arrests and was not addressed to the high courts. For breach of the directions in Joginder Kumar's case, the concerned authorities could be hauled up departmentally or under the contempt jurisdiction.

The full bench observed that the power of quashing criminal proceedings can be exercised with circumspection in the rarest of rare cases and the court is not justified in embarking on an enquiry as to the reliability or genuineness or otherwise of allegations made in the F I R or complaint, the high court should be loath to interfere at the threshold to thwart the prosecution in exercise of its inherent powers under Article 226 or Section 482 CR P C..

Normally the powers of investigation fall within the exclusive domain of the police who alone have discretion to decide whether to arrest an accused or not, and the courts cannot intervene unless the police acts without jurisdiction by seeking to investigate a non cognizable offence without the permission of a magistrate or where there may be some other statutory restriction on investigation.

Ordinarily arrests is a part of investigation and is needed for questioning an accused about the motive, preparation, commission and aftermath of the crime and the connection of other persons. The accused may provide information leading to material facts. It may be necessary to curtail his freedom and to protect witnesses and persons connected with the victim of the crime and to prevent his disappearance or to maintain law and order in the locality. The full bench also held that the accused had no right to notice before arrest. There can be no meticulous examination of the evidence also at this stage about the likelihood of the conviction of the accused for the crime, questions of mala fides or the prosecution cannot be gone into and the defence and investigational material cannot be considered at this stage. The court also cautioned against giving the final relief at the initial stage and observed that a reasoned order was needed for interim relief also.

UNI XC JL RP BD1655

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