- (1.) H. N. Tilhari, J. This writ petition has been filed by Ganesh Shanker Pandey, M. L. C. , Hari Shanker Tewari, M. L. A. , Markende Tewari alias Rajendra Tewari, Bheesham Shanker Tewari alias Kushal Tewari and Vinai Shanker Tewari for the following reliefs: (a) a writ or certiorari or a writ, order or direction in the nature of certiorari quashing the investigation against the petitioners on the basis of reports, dated 9-4-92, contained in Annexures 1, 2 and 3 to the writ petition and also for quashing of the said reports; (b) a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite parties, not to investigate against the petitioners in pursuance of the report, dated 9-4-92, Annexures 1, 2 and 3 and not to arrest the petitioners in pursu ance thereof; (c) a writ of mandamus or a writ, order of direction in the nature of mandamus restraining the opposite parties from investigating any case or prosecution of petitioners on the basis of the reports, dated 9-4- 92, contained in Annexures 1, 2 and 3 to the writ petition; (d) a writ of mandamus or an interim mandamus to command the oppo site parties not to arrest the petitioners on the basis of the reports dated 9-4-92 contained in Annexures 1, 2 and 3 to the writ petition; (e) any other appropriate writ, order or direction which this Hon'ble Court may deem just and necessary in the circumstances of the case; and (f) to allow the aforesaid writ petition with costs. "
(2.) RELIEF No. 3 claimed in the writ petition is almost as is relief No. 2 by which it has also been sought that writ or order in the nature of mandamus be issued restraining the opposite parties from investigating any case or prose cution of petitioners on the basis of aforesaid Annexures 1, 2 and 3 to the writ petition. RELIEF No. 4 in the writ petition is to the effect that a writ of mandamus or an interim mandamus be issued commanding the opposite parties not to arrest the petitioners on the basis of reports, dated 9-4-92 contained in Annexures 1, 2 and 3 to the writ petition and petitioners have further prayed for any other appropriate writ, order or direction being issued in the matter which the court deems fit and proper. The petitioners case in the nutshell has been that all the petitioners are members of the same family who are sought to be roped in by the oppo site parties without any material against them and that they are not involved in any crime nor is there any report against them in pursuance of which a by investigation can be made or petitioners can be arrested. The petitioners in this connection made a reference to the reports contained in Annexures-1, 2 and 3 and alleged that they do not pertain to the petitioners. Annexure 1 to the writ petition is the report lodged by Shri R. P. Singh while report No. 2 is one made by Mukhtar Singh and Annexure-3 is by Dhirendra Kumar Singh. The reports contained in Annexures 1, 2 and 3 relate to the occur rence alleged to have taken place on 9-4-92 at 1. 45 P. M. as a perusal of Annexures 1, 2 and 3 disclose. Annaxure-1 is the report made by Shri R. P. Singh, Kshetradhikari, Lucknow and the place of occurrence men tioned in it is Ashok Marg, Lueknow near Income Tax Officer. Annexure-1 indicates that the informant who lodged the first information report has lodged it against Satya Narain Singh. According to the informant vide Annexure-1 informant Shri R. P. Singh alongwith the Additional City Magistrate-I Shri Satendra Singh was on duty in Vidhan Bhawan on 9-4-92 and at that time i. e. in the afternoon of 9-4-92 Udai Pratap Singh came to him to inform that in front of the Income Tax Office at Ashok Marg the firing was being done by armed Badmashas (bad characters) in which some persons had been injured and thereupon at 1. 45 P. M. Shri R. P. Singh and others as mentioned in Annexure-1 started for the place of occurrence and on reaching there he found that there was a good crowd in front of Income Tax Office as well as there was scene of public running helter-skelter with nervousness. On reaching the spot, according to the informant, it was re vealed to him that in connection with the railway contract there had been exchange of firing between the two inter-gang rivals in which two persons had been injured. It was also revealed by the public men who felt nervous that some bad elements with their arms had run away from the back side of the Income Tax Office compound and thereafter Shri R. P. Singh and his party went on the back side of the Care Taker's room situated in the pre mises of Isicome Tax Office. It is also mentioned in the said report that the police party headed by Shri R. P. Singh which was subsequently joined by the Senior Superintendent of Police, Lucknow and Additional City Magis trate Shri Satendra Singh requested the persons hiding in the adjacent room to the Care Taker's room to surrender to the police party but instead of surrendering one of the bad characters (culprits) hiding inside the room resorted to firing at the police party but the informant was saved. It is mentioned in the report that because of the courage and faithfulness active- ness, duty consciousness of Udai Pratap Singh, Shri R. P. Singh was saved and the bullet hit the wall. On having opened the door, it is mentioned in the report that one injured person was found who was putting on bullet proof jacket etc. and appeared to have already died. It is also mentioned that the police caught hold of one person who told his name to be Satya Narain Singh and who alleged himself to be shadow of the person who had already died, namely, Vikram Pratap Singh. The other report Annexure-2 is by Mukhtar Singh. It is in this report it was disclosed that on 9-4-92 at about 1. 45 P. M. informant Mukhtar Singh is alleged to have stated that Vikram Pratap Singh, Ugrasen Singh, Ashutosh Gautam, Pisa Ram and Vikram Pratap Singh's shadow while going to North Eastern Railway office to offer their tenders, in front of the office on the road attacked with bombs and bullets on the informant Mukhtar Singh and his party had damaged the car and in that Ugrasen Singh and the informant were injured and as a consequence of the incident the public started running helter-skelter and the police came on the spot and the culprits ran away, thereafter injured Ugrasen Singh and Mufchtar Singh were taken to the hospital. In Annexure-3 it was mentioned that on 9-4-92 the informant constable Rama Kant Tripathi, S. I. Sadhu Ram and constable Ram Lakhan had gone to Divisional Railway Manager's Office on duty to maintain peace and order there i. e. in D. R. M. 's Office where tenders had to be made and at 2 O'clock on having heard the voice of bomb blast the informant officer along with his party ran towards the direction from which the voice of bomb blast was coming and then there he saw the Tata Mobile Car number mentioned in Annexure-3 as well as Maruti Car standing there. The Tata Mobile Car, it is mentioned in the report that its back portion was damaged and by making use of that car deceased Vikram Pratap Singh and shadow Satya Narain Singh (who had been arrested during police encounter) and their 5/6 asso ciates had seated it that car and they were firing and throwing bombs with intention to kill the persons and the other party was also firing on them. The police having immediately recognised the deceased Vikram Pratap Singh as well as shadow Satya Narain Singh who was having revolver but their associates had run away after having left their arms. It is men tioned in the report that the occurrence has created an atmosphere of fear and terror and the shops had been closed. The learned counsel for the petitioners referring to these reports contained in Annexures 1, 2 and 3 placed the petitioners case that these reports do not show any con nection of the petitioners with the occurrence nor were the petitioners named anywhere in these reports. The petitioners in this writ petition have alleged that on account of prevailing political set up as alleged in the writ petition and on account of the political manoeuvring, which the petitioners have alleged in the writ petition, his entire family is sought to be roped in, even without there being any material against them and in paragraph 10 of the petition the petitioners have stated: "the petitioners submit that in the guise of political animosity the image of the petitioners is sought to be tarnished. Petitioners 1 and 7 claim to be nominees of Congress (I) Party and alleged to be relations as Mama-Bhanje i. e. petitioner -No. 1 is sister's son of petitioner No. 2 while petitioners 4 and 5 are alleged to be cousin brother of petitioner No. 2. " The petitioners in paragraph 13 have stated that the police party apprehended a close relation of the petitioners, namely, Surendra Tewari on 11-4-92 at about 6p. M. and after apprehension and arrest he was taken to the police station Alarabagh by one Raja Ram Pal and is alleged in the petition to have been beaten up mercilessly in the police lock up. The peti tioners' case is that in none of the reports any implication of Surendra Tewari has been done but he was meted by the police as mentioned earlier and so the petitioners apprehend that they might also be subjected to similar treatment by the police authorities in the context of political animosity in order to tarnish the petitioners' image inspite of the fact that there is abso lutely no involvement of the petitioners in the alleged shoot out, dated 9-4-92. The petitioners' case is that there is no material in the annexures referred to above nor otherwise to suggest the involvement of the petitioners in the said crime and so on account of the facts and circumstances narrated in the writ petition and in order to seek protection of their rights of personal liberty and protection from being illegal arrest which respondents are bent upon to make in order to harass the petitioner, the petitioners have filed this petition under Article 226 of the Constitution of India. It may be mentioned here that before filing this petition the petitioners have alleged, had filed a writ petition but it the Circumstances narrated in paragraph 16 of the writ petition and instead moving the amendment application to that writ petition the petitioners filed the present petition and getting the earlier petition withdrawn. The petitioners have claimed that petitioners have got the fundamental right of personal liberty enshrined in Article 21 of the Constitution and the same cannot be deprived of except by authority of law and there being no justification to make investigation -or arrest of the petitioners in pursuance of reports Annexures 1; 2 and 3. The petitioners are claimed to be entitled to seek the relief mentioned in the writ petition in order to seek protection of the fundamental right of personal liberty from violation thereof or interference or intervention, in any manner with the same from any quarter on the basis and in the context of the occurrence reported vide Annexures 1, 2 and 3 in which their names do not at all find place.
(3.) NOTICE of this petition has been received by the learned Chief Standing Counsel. Shri Bireshwar Nath, learned Government Advocate as well as Sbri Jagdish Bhalla, learned Additional Chief Standing Counsel have put in appearance on behalf of opposite parties. We have heard learned counsel for the petitioners i. e. Shri Umesh Chandra, learned Senior Advo cate, as well as Shri Bireshwar Nath, learned Government Advocate and Shri Jagdish Bhalla, learned Additional Chief Standing Counsel, on behalf of the State and the authorities and have gone through the record and the papers placed by the learned Standing Counsel on behalf of the State for our perusal. The learned Additional Chief Standing Counsel as well as tiu learned Government Advocate submitted that the material available at this stage requires not to b3 disclosed to petitioners or public in the interest of process of investigation and progress of investigation and on account of the fact that the investigation is going on and is in progress, so at this stage we do not think it just and proper to discuss the same or proceed on the basis of the same as it may result in the disclosure of the same on hand and on the other hand it may be acting on something on the basis of something not disclosed to petitioners. The main contention on behalf of the petitioners has been that in the first information reports contained in Annexures 1,2 and 3 there is no reference at all of the petitioners nor these reports indicate or show any involvement of the petitioners in the occurrence, dated 9-4-92 in any manner and when these documents i. e. first information reports do not, in any manner reveal, indicate or disclose any involvement or any con cern of the petitioners with the occurrence in question, dated 9-4-92 in which Virkam Pratap Singh had lost his life at the hands of some assailants or some persons, there is no ground and there is no reason and there is no justi fication for any investigation being made against the petitioners nor is there any justification or reason for the petitioners being arrested but on account of political animosity and on account of petitioners belonging to different political group or party in order to tarnish the image of the petitioners the game is being played to falsely implicate as well as to get the petitioners arrested and to get their image tarnished as well as to deprive the petitioners of his life full of status and to deprive him of his personal liberty one way or the other and so the petitioners have come to take the protection and shelter of the court in the form of writ, order or direction sought in the petition. Learned counsel for the petitioners placed main emphasis on the contents of Annexures 1, 2 and 3 in which the learned counsel for the petitioners contended that the petitioners have neither been named nor in any manner said to have been involved and so the petitioners counsel submitted petitioners to be entitled to seek the protection of the court for their fundamental right of life and liberty. On behalf of the State it was contended that the petition is not maintainable at this stage as the petitioners have neither been arrested and further the relief sought against investigation i. e. quashing of investiga tion or man damns directing them not to investigate in pursuance of the reports Annexures 1, 2 and 3 as well as not to arrest the petitioners in pursuance thereof. The learned counsels appearing on behalf of the State have invited our attention to the provisions of Sections 154 to 173 contained in Chapter XII of the Code of Criminal Procedure under the head information to police and their power to investigate indicating the process from the stage of information of cognizable offence and investigation and contended that the first information reports having been made to the police, it is the duty of the police to investigate into cognizable offence even without obtaining sanction of the Magistrate and the court should not interfere with the investi gation. He further contended that in view of the provisions of Sections 154 and 156 the police has a statutory right and duty to investigate the cogniz able offence and, as such the petitioners are not entitled to file this petition to seek the relief claimed in the writ petition. It was further contended that investigations are disclosing and providing material which may lead to indi cate involvement or concern of the petitioners with the occurrence in question irrespective of the fact that at the stage of filing the first information report, Annexures 1, 2 and 3 those facts were not in the notice of the first informant and there is no mention of the petitioners' name in the first infor mation reports but if the facts and material coming during the course of investigation indicating the involvement or concern or may indigate reasonable suspicion of the petitioners involvement the opposite parties are entitled to apprehend and to arrest in course of investigation and he placed emphasis on Section 157 (1) of the Code of Criminal Procedure (hereinafter shall be referred to as Code) and in particular the expression to take measure of discovery and arrest offenders used in Section 157 (1) of the Code and the learned State Counsel emphasised that as the investigation are in progress it may not be in the public interest to disclose the material at this stage though the court may have a glance. As regards the question of maintainability of the writ petition under Article 226 of the Constitution of India at the stage i. e. pre-violation protection i. e. as regards the maintainability of the writ petition for protection of fundamental right under Article 226 of the Constitution of India from its threatened or imminent violation on the ground that until the right of the petitioners are violated by their arrest the petition is not maintainable seeking protection of the right from threat or imminent violation. It is just and proper that we may have a glance to the material portion of Article 226 of the Constitution of India. Clause (1) of Article 226 reads as under: "226. (1) Notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases, any Government, within these terri tories directions, orders or writs, including the writs in the nature of habeas corpus, prohibition, mandamus, quo warran to and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. " Two material expressions used are to be noted, the expressions are for "the enforcement of any right and other is "for any other purpose". The word euforcement has been defined in Black's Law Dictionary Vth Edition at page 474 as under: "enforcement.- The act of putting something such as a law into effect, the execution of a law, the carrying out of a mandate or command. " The expression "enforce" in the same dictionary at page 474 has been defined to mean "to enforce a law to cause to take effect or to make to effective as law, to compel obedience to law. The expression enforcement when, in the context of rights conferred by Part III of the Constitution is considered it means that resort to Article 226 of the Constitution can be had and it has been provided for the enforcement and protection of one or any one of the funda mental rights provided in Part III of the Constitution. Here in the present case under Article 21 or 22 of the Constitution the petitioners are entitled to file the writ petition to compel the obedience to law and observance of law as contained under Articles 21 and 22 of the Constitution. Article 21 of the Constitution of India provides and reads as under: "21. Protection of life and personal liberty.- No person shall be deprived of his life and personal liberty except according to proce dure established by law. ";