- (1.) DR. B. S. Chauhan, J. A Division Bench of this Court vide order dated 22-8-2000, referred two questions to a larger Bench for determination/answer, namely : (1) Whether arrest during investigation can be stayed by this Court only in rarest of rare cases as observed in Satyapal v. State of U. P. and Ors. , 2000 Cr. LJ. 569, or according to the criteria laid down by the Supreme Court in Joginder Kumar v. State of U. P. and Ors. , 1994 JIC 760 (SC); (1994) 4 SCC 260? (2) Whether the Full Bench in Satyapal's case was right in holding that Joginder Kumar's case was delivered on its own peculiar facts and circumstances and hence does not lay down any legal principles relating to the power of arrest and the power of stay to arrest by this Court? Background of the case and conten-tions on behalf of the parties :
(2.) THE petitioner Ajit Singh filed this writ petition for quashing the First Information Report dated 19-5- 2000 (Annexure 1) registered as Case Crime No. 144 of 2000, under Sections 323, 504, 506, Indian Penal Code and Section 3 (1) (x) of THE Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Kuthan, District Jaunpur. When the matter came up for hearing, it was submitted by the learned Counsel for the petitioner before the Division Bench that the F. I. R. had been filed at a belated stage on 19-5-2000 in respect of the incident alleged to have occurred on 24-3-2000 and the petitioner apprehended the arrest by the investigating agency at the behest of respondent No. 3 Hansraj, the complainant. Stay of arrest was prayed contending that the arrest was likely to be made in contravention of the law laid down by the Hon'ble Apex Court in Joginder Kumar's case wherein it has been held that the arrest should not be made in every case in routine and it may be made only where there is a justification for making the arrest and necessary in the facts and circumstances of that case. THE contention was opposed by the learned Government Advocate placing reliance upon the Full Bench judgment of this Court in Satyapal's case wherein it has been held that arrest should be stayed only in rarest of rare cases and not as a matter of routine, observing that the Hon'ble Apex Court decided the case of Joginder Kumar's case on the facts of that case and it does not lay down the law for universal application. THE Division Bench was of the opinion that the Full Bench had made observations in contravention of the law laid down by the Hon'ble Apex Court which was not permissible in view of the provisions of Article 141 of the Constitution of India and, therefore, referred the aforesaid two questions to the larger Bench. 2 (i) We have heard Shri Ramender Asthana, Shri S. P. Shukla and Shri Prem Prakash, learned Counsel for the petitioner and Shri V. S. Mishra, learned Government Advocate for the State. 2 (ii) Learned Counsel for the petitioner have submitted that the judgment of the Full Bench in Satyapal's case does not lay down the correct law that this Court should stay arrest only in rarest of rare cases as it is in contravention of the law laid down by the Hon'ble Apex Court in Joginder Kumar's case and as the law laid down by the Hon'ble Apex Court is binding on all Courts in view of the provisions of Article 141 of the Constitution of India, it was not permissible for the Full Bench to say that the guidelines issued in Joginder Kumar's case need to be confined to the peculiar facts and circumstances of that case, which were distinguishable from the facts of the case before the Full Bench. As the arrest may destroy the reputation of a person and it brings humiliation, it is violative of Articles 14 and 21 of the Constitution of India and this Court, being the custodian of law, has a solemn duty to protect the rights of the persons. 2 (iii) On the contrary, Shri V. S. Mishra, learned Government Advocate has submitted that the Full Bench of this Court in Satyapal's case has not made any observations in contravention of the guidelines issued in Joginder Kumar's case as the issues involved in both the cases were entirely different. In Joginder Kumar, the Hon'ble Apex Court dealt with the power of the police to arrest and the guidelines have been issued as under what circumstances the arrest should be made. On the other hand, the Full Bench of this Court in Satyapal's case considered the scope of interference with investigation by this Court, therefore, it cannot be held that this Court had made any observation in contravention of the law laid down in Joginder Kumar's case. Scope of Police powers of investigation and Court's powers : There can be no quarrel with the settled legal proposition that arrest is a part of investigation and it is not permissible to agitate that the Court can stay the arrest unless the Court is of the view that in the peculiar facts of a particular case, it is necessary to interfere with the investigation. That the powers of investigation fall within the exclusive domain of the police, and at this stage Courts cannot intervene unless the police acts wholly without jurisdiction by seeking to investigate an non-cognizable offence without the permission of a Magistrate, or where there may be some other statutory restriction on investigation. It is only after submission of the charge-sheet, if the FIR and investigation do not disclose commission of a cognizable offence, or according to other well-settled principles delineated by the apex Court and this Court in various decisions, can the High Court grant some appropriate relief. 3 (i) In State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. , 1990 (2) JIC 997 (SC): AIR 1992 SC 604, the Hon'ble Supreme Court observed as under : "the sum and substance of the above deliberation results in a conclusion that the investigation of an offence is the field exclusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigate into the cognizable offences is legitimately exercised in strict compliance with the provisions falling under Chapter XII of the Code and the Courts are not justified in obliterating the track of investigation when the investigating agencies are well within their legal bounds as aforementioned. Indeed, a noticeable feature of the scheme under Chapter XIV of the Code is that a Magistrate is kept in the picture at all stages of the police investigation but he is not authorised to interfere with the actual investigation or to direct the police how that investigation is to be conducted. But if a police officer transgresses the circumscribed limits and improperly and illegally exercises his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the Court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our Constitution. " (Emphasis added) 3 (ii) The extent and scope of powers of the Courts and police respectively have also been spelt out by the Hon'ble Supreme Court in H. N. Rishbud and Anr. v. State of Delhi, AIR 1955 SC 196, observing that investigation usually starts on information relating to the commission of an offence given to an officer- in-charge of a police station and recorded under Section 154 of the Code. If from information so received or otherwise, the officer-in-charge of the police station has reason to suspect the commission of an offence, he or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary to take measures for the discovery and arrest of the offender. Thus investigation primarily consists in the ascertainment of the facts and circumstances of the case. By definition, it includes "all the proceedings under the Code for the collection of evidence conducted by a police officer". For the above purposes, the investigating officer is given the power to require before himself the attendance of any person appearing to be acquainted with the circumstances of the case. He has also the authority to examine such person orally. Under Section 155 the officer-in-charge of a police station has the power of making a search in any place for the seizure of anything believed to be necessary for the purpose of the investigation. The search has to be conducted by such officer in person. The investigating officer has also the power to arrest the person or persons suspected of the commission of the offence under Section 54 of the Code. A police officer making an investigation is enjoined to enter his proceedings in a diary from day-to-day. Where such investigation cannot be completed within the period of 24 hours and the accused is in custody he is enjoined also to send a copy of the entries in the diary to the Magistrate concerned. If, upon the completion of the investigation it appears to the officer-in-charge of the police station that there is no sufficient evidence or reasonable ground, he may decide to release the suspected accused, if in custody, on his executing a bond. If, however, it appears to him that there is sufficient evidence or reasonable ground, to place the accused on trial, he is to take the necessary steps therefore under Section 170 of the Code. In either case, on the completion of the investigation he has to submit a report to the Magistrate under Section 173 of the Code in the prescribed form furnishing various details. 3 (iii) Further, the powers of the police to effect an arrest under Section 41, Cr. P. C. has been clarified in M. C. Abraham and Anr. v. State of Maharashtra and Ors. , 2003 (1) JIC 3 (SC); (2003) 2 SCC 649 : "in the first place, arrest of an accused is a part of the investigation and is within the discretion of the investigating officer. Section 41 of the Code of Criminal Procedure provides for arrest by a police officer 0 without an order from a Magistrate and without a warrant. The section gives discretion to the police officer who may, without an order from a Magistrate and even without a warrant, arrest any person in the situations enumerated in that section. It is open to him, in the course of investigation, to arrest any person who has been concerned with any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned. Obviously, he is not expected to act in a mechanical manner and in all cases to arrest the accused as soon as the report is lodged. In appropriate cases, after some investigation, the investigating officer may make up his mind as to whether it is necessary to arrest the accused person. At that stage the Court has no role to play. Since the power is discretionary, a police officer is not always bound to arrest an accused even if the allegation against him is of having committed a cognizable offence. Since an arrest is in the nature of an encroachment on the liberty of the subject and does affect the reputation and status of the citizen, the power has to be cautiously exercised. It depends inter alia upon the nature of the offence alleged and the type of persons who are accused of having committed the cognizable offence. Obviously, the power has to be exercised with caution and circumspection". (Emphasis added) 3 (iv) In M. Narayandas v. State of Karnataka and Ors. , (2003) 11 SCC 251, the Apex Court held that at the stage when a report of a cognizable offence under Section 154 (1) of the Code is lodged, the concerned police officer is not to refuse to register the case or to embark on an enquiry about the genuineness and reliability of the allegations. The investigation at this stage is the exclusive prerogative of the police officer, and the Courts do not have any power to intervene with the investigation so long as the police officer acts according to his statutory powers. It is only on failure to investigate a cognizable offence that the competent Magistrate can issue a direction to the competent police officer to investigate the offence or to inquire into the offence himself or through a subordinate Magistrate. The Court held as under : "the core of the above sections, namely, 156, 157 and 159 of the Code is that if a police officer has reason to suspect the commission of a cognizable offence, he must either proceed with the investigation or cause an investigation to be proceeded with by his subordinate; that in a case where the police officer sees no sufficient ground for investigation, he can dispense with the investigation altogether; that the field of investigation of any cognizable offence is exclusively within the domain of the investigating agencies over which the Courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation and that it is only in a case wherein a police officer decides not to investigate an offence, the Magistrate concerned can intervene and either direct an investigation or in the alternative, if he thinks fit, he himself can, at once proceed or depute any Magistrate subordinate to 1 him to proceed to hold a preliminary inquiry into or otherwise to dispose of the case in the manner provided in the Code. " (Emphasis supplied) 3 (v) In Adri Dharan Das v. State of West Bengal, 2005 (1) JIC 851 (SC) ; AIR 2005 SC 1057, the necessity of arrest for various aspects of investigation have been clarified by the Hon'ble Supreme Court observing as follows : "ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code. " (Emphasis added) 3 (v) The scope of interference at the stage of investigation is no more res integra as it has been considered by the Hon'ble Supreme Court time and again. In Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18, the Privy Council considered the issue while dealing with the statutory rights of the police under Sections 154 and 156 of the Code of Criminal Procedure (hereinafter called the 'cr. P. C. ') for investigation of a cognizable offence and made the following observations : ". . . . . . . . So it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. . . . . . . . . . it 2 would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complimentary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function,. . . . . . . . . the Court's functions begin when a charge is preferred before it and not until then. . . " (Emphasis added) 3 (vi) Similarly, in Abhinandan Jha and Ors. v. Dinesh Mishra, AIR 1968 SC 117, the Hon'ble Apex Court considered the same provision of Cr. P. C. and held that the field of investigation of any cognizable offence is exclusively within the domain of the investigating agency over which the Courts cannot have control and have no power to stifle or impinge upon the proceedings in the investigation so long as the investigation proceeds in compliance with the provisions relating to investigation. 3 (vii) In State of Bihar and Anr. v. J. A. C. Saldanna and Ors. , AIR 1980 SC 326, the Hon'ble Apex Court while dealing with the powers of investigation of a police officer under Cr. P. C. observed as under : "there is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively for the Executive through the police department, superintendence over which vests in the State Government. Once it investigates and finds an offence having been committed, it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the Investigating Officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code, its duty comes to an end. " (Emphasis added) 3 (viii) Thus, in view of the above, it is evident that generally investigation falls within the exclusive domain of the Executive and scope of judicial review is very limited in exceptional cases. 'audi alteram partem' rule or right of accused to notice at investigation stage : 3 It has been observed in Union of India and Anr. v. W. N. Chadha, AIR 1993 SC 1082, that at the stage of investigation and initial arrest the rule of audi alteram partem has no application and the accused has no right of notice or hearing before his arrest, if any, in a cognizable case. Nor the accused has any right as to choose the manner and method of investigation save under certain exceptions provided in the Code itself. The Court held as under : "true, there are certain rights conferred on an accused to be enjoyed at certain stages under the Code of Criminal Procedure - such as Section 50 whereunder the person arrested is to be informed of the grounds of his arrest and to his right of bail and under Section 57 dealing with person arrested not to be detained for more than 24 hours and under Section 167 dealing with the procedure if the investigation cannot be completed in 24 hours - which are all in conformity with the 'right to Life' and 'personal Liberty' enshrined in Article 21 of the Constitution and the valuable safeguards ingrained in Article 22 of the Constitution for the protection of an arrestee or detenu in certain cases. But so long as the investigating agency proceeds with his action or investigation in strict compliance with the statutory provisions relating to arrest or investigation of a criminal case and according to the procedure established by law, no one can make any legitimate grievance to stifle or to impinge upon the proceedings of arrest or detention during investigation as the case may be, in accordance with the provisions of the Code of Criminal Procedure. " 4 (i) In State of Maharashtra v. Mohd. Rashid and Anr. , 2005 (3) JIC 603 (SC) : (2005) 7 SCC 56, the question as to the right of an accused to four working days written notice whenever his arrest was needed in the following three years came up for consideration. The Hon'ble Supreme Court held that the accused had no such right of notice. "such a blanket protection of not arresting the first respondent in any crime, except after written notice to him, could not be passed. " 4 (ii) Thus, in view of the above, it is evident that an accused cannot claim a right to notice/hearing before arrest is made. Scope of interference under Article 226 of the Constitution :
(3.) THE power of quashing the criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F. I. R. or complaint and the extraordinary and inherent powers of Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can 4 neither intervene at an uncalled for stage nor it can 'soft-pedal the course of justice' at a crucial stage of investigation/proceedings. (Vide State of West Bengal and Ors. v. Swapan Kumar Guha and Ors. , AIR 1982 SC 949; Madhavrao Jiwaji Rao Scindia and Anr. v. Sambhajirao Chandrojirao Angre and Ors. , AIR 1988 SC 709; THE Janata Dal v. H. S. Chowdhary and Ors. , AIR 1993 SC 892; Mrs. Rupan Deol Bajaj and Anr. v. Kanwar Pal Singh Gill and Anr. , 1995 (1) JIC 1155 (SC); AIR 1996 SC 309; G. Sagar Suri and Anr. v. State of U. P. and Ors. , 2000 (2) JIC 136 (SC); AIR 2000 SC 754; and Ajay Mitra v. State of M. P. , AIR 2003 SC 1069 ). 5 (i) In M/s. Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. , AIR 1998 SC 128, a similar issue was considered and the Hon'ble Apex Court held that the criminal law cannot be set into motion as a matter of course. THE provisions of Articles 226 and 227 of the Constitution of India and Section 482 of the Code are a device to advance justice and not to frustrate it. THE power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors that might be committed by the Subordinate Courts as it is the duty of the High Court to prevent the abuse of process of law by the inferior Courts and to see that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court but more the power more due care and caution is to be exercised invoking these powers. THE Apex Court held that nomenclature under which the petition is filed is totally irrelevant and does not prevent the Courts from exercising its jurisdiction which otherwise it possesses unless there is a special procedure prescribed which procedure is mandatory. 5 (ii) In State of U. P. v. O. P. Sharma, (1996) 7 SCC 705, the Hon'ble Supreme Court has indicated that the High Court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 of the Code or under Article 226 or 227 of the Constitution of India, as the case may be, and allow the law to take its own course. Similar view had been taken in Pratibha Rani v. Suraj Kumar and Anr. , AIR 1985 SC 628. 5 (iii) In L. V. Jadhav v. Shankarrao Abasaheb Pawar and Ors. , AIR 1983 SC 1219, the Apex Court held that Court's power is limited only to examine that the process of law should not be misused to harass a citizen and for that purpose, the High Court has no authority or jurisdiction to go into the matter or examine the correctness of allegations unless the allegations are patently absurd and inherently improbable so that no prudent person can ever reach to such a conclusion and that there is sufficient ground for proceeding against the accused but the Court, at that stage, cannot go into the truth or falsity of the allegations. 5 (iv) In Trisuns Chemical Industry v. Rajesh Agarwal and Ors. , 1999 (2) JIC 772 (SC) : (1999) 8 SCC 686, the Supreme Court placed reliance upon its earlier judgment in Rajesh Bajaj v. State N. C. T. of Delhi and Ors. , 5 1999 (1) JIC 772 (SC); AIR 1999 SC 1216, and observed that the inherent power of the High Court should be limited to very extreme exceptions. THE said judgment was approved and followed by the Apex Court in Ram Biraji Devi v. Umesh Kumar Singh and Ors. , 2006 AIR SCW 2543, wherein the Apex Court reiterated that the power can be used only in extreme exceptions where it is necessary to do so in the interest of justice. 5 (v) In State of Haryana and Ors. v. Ch. Bhajan Lal (supra), the Hon'ble Supreme Court laid down the guidelines for exercising the inherent power as under : (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 F. I. R. 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 as case against the accused. (4) Where, the allegations in the F. I. R. 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 concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the 6 proceedings and/or where there is a specific provision the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide 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. 5 (vi) In Ganesh Narayan Hegde v. S. Bangarappa and Ors. , 1996 (1) JIC 491 (SC) : (1995) 4 SCC 41, an earlier decision in Mrs. Dhanalakshmi v. R. Prasanna Kumar and Ors. , AIR 1990 SC 494, has been cited with approval for the proposition that there should be no undue interference by the High Court as no meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at this stage. THE High Court should interfere only where it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of process of Court or that the interests of justice otherwise call for quashing of the charges. 5 (vii) In Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque and Ors. , 2005 (2) JIC 188 (SC) : AIR 2005 SC 9, the Hon'ble Apex Court held that criminal proceedings can be quashed but such power is to be exercised sparingly, carefully with caution and only when such exercise is justified by the tests specifically laid down in the statutory provisions itself. It is to be exercised ex debito justitiae to do real and substantial justice for administration of which alone Courts exist. Wherever any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent the abuse. A case where the FI. R. or the complaint does not disclose any offence or is frivolous, vexatious or oppressive, the proceedings can be quashed. It is, however, not necessary that at this stage there should be meticulous analysis of the case before the trial to find out whether the case ends in conviction or acquittal. THE allegations have to be read as a whole. 5 (viii) In State of W. B. v. Narayan K. Patodia, AIR 2000 SC 1405, the Apex Court observed that lodging an FIR is only the first step of investigation by the police. Premature quashing of the FIR at the initial stage instead of serving the cause of justice, harmed it. THE inherent powers of the High Court are reserved to be used "to give effect to any orders under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice". 5 (ix) Undoubtedly, the enjoyment of a good reputation is a personal right and, thus, dignity of a person is to be protected as guaranteed under Article 21 of the Constitution of India. Filing F. I. R. and visit by the police for arrest of a person on the basis of false and frivolous F. I. R. /complaint, may, result in 7 incalculable harm to his reputation and self-respect. Such a right has been recognised by the Hon'ble Apex Court in Joginder Kumar's case and Smt. Kiran Bedi and Anr. v. Committee of Enquiry and Anr. , 1989 JIC 210 (SC) : AIR 1989 SC 714, to be a personal right. However, the law of arrest is one of the balancing individual rights, liberties and privileges, on the one hand and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of doing which comes first -the criminals or society, the law violator or the law abider. 5 (x) In D. K. Basu v. State of West Bengal, 1996 (2) JIC 1541 (SC) : (1997) 1 SCC 416, the Hon'ble Apex Court held that when the crime goes unpunished, the criminals are encouraged and the society suffers. THE victim of crime or his kith and kin become frustrated and contempt for law develops. THE Court further observed as under : ". . . . . . . . if we lay too much of emphasis on protection of their fundamental rights and human rights, such criminals may go scot-free without exposing any element or iota of criminality, the crime would go unpunished and in the ultimate analysis, the society would suffer. THE concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. " 5 (xi) While deciding the said case, the Hon'ble Supreme Court laid down certain guidelines for the police, as how to act and proceed when arrest is necessary. THE Court expected the legislature to bring legislation to give effect to the said guidelines. 5 (xii) In order to give effect to the law laid down by the Hon'ble Supreme Court in this case, the provisions of the Code have been amended by Code of Criminal Procedure (Amendment) Act, 2005 by which Section 50-A has been inserted. It requires the Police to give information about the arrest of the person as well as the place where he is being held to anyone who may be nominated by him for sending such information. It further obliges the Magistrate concerned to satisfy himself about the fulfilment of the requirements of the said provision when arrested person is produced before him in order to ensure compliance of the said law. THE aforesaid provisions are mandatory and any violation, thereof, can be a ground available to an apprehended person to question the correctness of the arrest by the aforesaid procedure. This is because the aforesaid Section is clearly designed to protect the fundamental right of a person guaranteed under Article 21 of the Constitution, subject to reasonable restriction as placed by the law enacted by the Legislature. In our opinion, the interpretation of the said provision therefore 8 makes it imperative for the investigating agency not to apprehend a person and further for the Magistrate to satisfy himself that the investigating agency had proceeded with in accordance with law, which in our opinion would ensure the safety and liberty of a person from being abused and from preventing any unwarranted arrest. 5 (xiii) In Ahmed Noormohmed Bhatti v. State of Gujarat, 2005 (2) JIC 98 (SC) : AIR 2005 SC 2115, the Hon'ble Supreme Court held that for violation of the guidelines contained in D. K. Basu and Joginder Kumar the appropriate remedy is departmental action or contempt. THE Court observed as follows : "these requirements are in addition to the constitutional and statutory safeguards and do not detract from various directions given by the Courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee. This Court has also cautioned that failure to comply with the requirements aforesaid, shall apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of Court. " (Emphasis added) 5 (xiv) THE Hon'ble Apex Court in Smt. Nandini Satpathy v. P. L. Dani and Anr. , AIR 1978 SC 1025, has observed that emphasis should shift depending on circumstances, in balancing these interests. THE Hon'ble Apex Court in Joginder Kumar's case after considering the rights of the people guaranteed under Articles 21 and 22 (1) of the Constitution of India, observed as under : "the incidents of personal liberty are guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. THE existence of the power to arrest is one thing. THE justification for the exercise of it is quite another. THE police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. THE recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental rights to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. THEre must be some reasonable justification in the 9 opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. " 5 (xv) Thus, the arrest is permissible only in a case where the circumstances of the said case so require and there is a justification for making the arrest otherwise not. 5 (xvi) THE Court has a duty to balance the freedom of a person and the right of the Executive to investigate the offence. THErefore, the Court has to examine as to whether the investigation is being made in accordance with law and if it comes to the conclusion that investigation is nothing but a means to harass the accused, the Court can always interfere with investigation. 5 (xvii) Section 157 (1) of the Code of Criminal Procedure reads as under : "procedure for investigation.- (1) If, from information received or otherwise, an officer-in-charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender : Provided that - (a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer-in-charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot; (b) if it appears to the officer-in-charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. " 0 (Emphasis added) 5 (xviii) It is evident from the statutory provisions itself that arrest is to be made only and only if it is found to be necessary and there is a justification for making the arrest for the purpose of further investigation. What to talk of arrest even case may not be investigated if there is no sufficient ground for the same. THErefore, it cannot be held that arrest is to be made in every case without discrimination rather the mandate issued by the Hon'ble Apex Court in Joginder Kumar's case is to be followed but as stated above, the said case deals with the power of the police to make arrest while the Full Bench in Satyapal's case deals with the power of the Court to interfere with investigation. 5 (xix) Investigation is the primary function of the Police. THE arrest of the suspect in the next step in the investigation which can be carried out in certain cases without warrant of arrest. Arrest can also be made in view of the provision of Section 42 of the Code, if the accused does not disclose his identify, i. e. name, parentage and residence etc. or information in this regard given by him is believed to be false. Tendency to implicate falsely in criminal cases and absence of statutory provision for seeking anticipatory bail in the State of Uttar Pradesh have flooded this Court with cases for quashing FIR/complaint and in the meanwhile staying arrest. THE Court is competent to interfere with investigation/arrest only in exceptional cases as explained above. Limitations on examining questions of mala fide in writ petition : The issue of mala fide decided by the Hon'ble Apex Court in State of Haryana v. Ch. Bhajan Lal (supra) held as under : "at this stage, when there are only allegations and recriminations on no evidence, this Court could not anticipate the result of the investigation and rendered a finding on the question of mala fides on the materials at present available. Therefore, we are unable to see any force in the contentions that the complaint should be thrown over board on the some unsubstantiated plea of mala fides. " (Emphasis added) 6 (i) In Sheo Nandan Paswan v. State of Bihar and Ors. , AIR 1987 SC 877, the Hon'ble Apex Court while dealing with the issue of mala fides in criminal law observed as under : 1 "it is well-established proposition of law that a criminal prosecution, if otherwise, justifiable and based upon adequate evidence does not become vitiated on account of mala fides or political vendetta of the first informant or the complainant. " (Emphasis added) 6 (ii) Similarly, in State of Bihar and Anr. v. J. A. C. Saldanha and Anr. (supra), the Apex Court has held as under : "it must, however, be pointed out that if an information is lodged at the police station and an offence is registered, the mala fide of the informant would be of secondary importance if the investigation produced unimpeachable evidence disclosing he offence. " (Emphasis added) 6 (iii) In Sarjudas and Anr. v. State of Gujarat, 1999 (2) JIC 753 (SC) : 1999 (8) SCC 508, the Hon'ble Supreme Court held that there must be cogent evidence of mala fides or malicious intention of the informant or the complainant for taking note of the allegations of mala fide. The bald statement in this respect is not sufficient. 6 (iv) In State of Orissa v. Saroj Kumar Sahoo, 2006 (2) JIC 104 (SC) : (2005) 13 SCC 540, it has been held that probabilities of the prosecution version cannot be analyzed at this stage. Likewise the allegations of mala fides of the informant are of secondary importance. The relevant passage reads thus: "it would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the 2 Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. " (Emphasis added) 6 (v) In M. Narayandas v. State of Karnataka and Ors. , (2003) 11 SCC 251, the Apex Court rejected the contention that proceedings were liable to be quashed as the same stood initiated on account of personal vendetta observing that complaint has to be tested and weighed after the evidence is collected. 6 (vi) Similar view has been explained by the Apex Court in State of Bihar and Anr. v. Shri P. P. Sharma and Anr. , 1991 JIC 528 (SC); AIR 1991 SC 1260; and Zandu Pharmaceutical Works Ltd. (supra ). 6 (vii) Thus, it is evident that in case there is sufficient evidence against the accused, which may establish the charge against him, if the bias/mala fide is established, the proceedings cannot be quashed. Quashing of FIR because dispute is of civil nature :;