Hon'ble Arvind Kumar Tripathi (II),J.
Heard learned counsel for the parties.
The petitioners have approached this Court by means of the instant Writ Petition for quashing of an FIR giving rise to Case Crime No.527 of 2012, under Sections 419, 420, 467, 468, 471, 506 and 507 IPC registered at Police Station Madiaon, district Lucknow.
Having perused the record and having heard submissions raised, we do not find this to be a case for interference for quashing of an FIR.
However, learned counsel for the petitioners submitted that in the facts of the case in hand, as criminal forum is being misused and the petitioner would be arrested in a routine/mechanical manner, as such, as an interim measure, arrest of the petitioners may be stayed. He placed reliance on the decision of the coordinate Bench of this Court rendered in Criminal Misc. Writ Petition No. 15290 pf 2014 : Sahil @ Guddu and Ors vs. State of U.P. and others decided on 05.09.2014, and prayed that benefit of said judgment may also be made available to the petitioners.
We have gone through the Judgment and fully agree with the view expressed by the bench. However, we would like to add something more so as to apprise the subordinate courts with the directions issued by this Court and the apex Court from time to time to be followed while deciding bail applications.
The apex Court in the case of Hema Mishra v. State of U.P. & ors reported in 2014 (4) SCC 453 has held that once request for quashing of an FIR is turned down, the second prayer for interim order staying arrest should not be granted. In view of ratio of law laid down in the case of Hema Mishra (Supra) the request for staying arrest cannot be granted.
In the case of Pradeep Tyagi v. State of U.P. & ors reported in 2009(2) ACR 1371, a Division Bench of this Court has held as under:
"12. It is made clear that the order granting interim bail pending herein of a regular bail application may be passed in appropriate cases, but it ought not to be passed where:
(i) The case involves a grave offence like murder, dacoity, robber, rape etc., and it is necessary to arrest the accused and bring his movements under restrain to infuse confidence among the terror stricken victims and society at large and for protecting witnesses.
(ii) The case involves an offence under the U.P. Gangster Act and in similar statutory provisions.
(iii) The accused is likely to abscond and evade the processes of law.
(iv) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restrain.
(v) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.
(vi) The offence is in the nature of scam, or there is an apprehension that there may be interference with the investigation or for any other reason the Magistrate/Competent Court feels that it is not a fit case for releasing the Appellant on interim bail pending the hearing of the regular bail.
(vii) An order of interim bail can also not be passed by a Magistrate who is not empowered to grant regular bail in offences punishable with death or imprisonment for life or under the other circumstances enumerated in Section 437, Cr.P.C.
(viii) If the Public Prosecutor/Investigating Officer can satisfy the Magistrate/Court concerned that there is a bonafide need for custodial interrogation of the accused regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other person, if any, in the crime, or for obtaining information leading to discovery of material facts, it may constitute a valid ground for not granting interim bail, and the court in such circumstances may pass orders for custodial interrogation, or any other appropriate order".
In the case of Sheoraj Singh alias Chuttan v. State of U.P. & ors., reported in 2009(2)ACR 1762 also, a Division Bench of this Court has further clarified, and given certain specific guidelines in paragraph 15, which are reproduced as under:
15.Based on a long line of judicial precedents of the apex and this Court, some of the exceptional circumstances where the Courts below would be justified in refusing interim or regular bails could be:
(i) Where the Magistrate concerned is not empowered to grant regular bail as there are reasonable grounds for believing his complicity in offences punishable with death or imprisonment for life or under the other circumstances enumerated in section 437 Cr.P.C.
(ii) There is prima facie material to suggest the involvement of the accused in a grave offence like murder, dowry death, dacoity, robbery, rape, kidnapping for ransom, rape etc., unless it appears to the Sessions Court at the stage of initial appearance itself that the accused appears to have been been falsely implicated for some mala fide reasons.
(iii) The case involves an offence under the U.P. Gangsters Act and in similar statutory provisions, where there are restrictions on the Court's power to grant bail.
(iv) The accused is likely to abscond and evade the processes of law or where it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims and society at large and for protecting witnesses.
(v) The accused is given to violent behaviour, or is a habitual offender and is likely to commit further offences unless his movements are brought under restraint.
(vi) There is prima facie material showing the involvement of the accused in offences which are in the nature of a scam, or in grave crimes against society or the nation such as dealing in counterfeit currency, or in narcotic, psychotropic drugs or spurious medicines etc.
(vii) If the Public Prosecutor/ investigating officer can satisfy the Magistrate/ Court concerned that there is a bona fide need for custodial interrogation of the accused regarding various facets of the motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime, or for obtaining information leading to discovery of material facts, it may constitute a valid ground for not granting interim bail, and the Court in such circumstances may pass orders for custodial interrogation, or any other appropriate order.
(viii) If there is an apprehension that there may be interference with the investigation or for any other reason the competent Magistrate / Sessions Court feels that it is not a fit case for releasing the appellant on interim bail pending the hearing of the regular bail.
The clarification of these exceptions are necessary as the need to grant plenary powers to the police to investigate and unravel the circumstances of a crime are as important as the need to protect a respectable person from being unnecessarily sent to jail or for restraining the police from taking persons in custody for minor isolated non-habitual offences where it may strictly not be necessary for the police to arrest an accused at the stage of investigation".
The Apex Court in the case of Arnesh Kumar v. State of Bihar (2014 (86) ACC 568 (SC) has given certain directions to the police officers and the Magistrates, which are quoted as under:
"(1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
(2) All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);
(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
(6) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court."
In view of the discussions referred to above,, it is not a necessity to issue fresh guidelines in each and every case, inasmuch as, all the above quoted decisions are binding upon the subordinate courts and they have to decide the bail applications in the light of observations made from time to time by this Court and the apex Court.
In view of the above, observations/directions, the writ petition stands disposed of.
Date: 14.10.2014 anb/subodh