JUDGMENT K. Narayan, J.
1. This petition under Article 226 of the Constitution of India has been brought for the relief of quashing the first information report in case crime No. 74 of 1991 under Section 3/7 of the Essential Commodities Act, P. S. Khairagarh District Agra and for a direction to the respondents not to arrest the petitioner in the matter of the alleged crime.
2. According to the petitioner, he holds a licence under the Essential Commodities Act and there was an F.I.R. against him under Section 3/7 of the said Act, on 26-7-1991 by one Arun Kumar Dixit, Magistrate, Khairagarh, District Agra. As the allegations are, the only discrepancy was that the rate board was not properly filled in and that there was shortgage of one bag of mustared oil seed. The investigation, according to the petitioner ended in a final report under Section 173, Cr.P.C. but the Senior Prosecuting Officer has recorded some disagreement and consequently there is likelihood of his arrest. It was also urged that the provisions relating to the maintenance of the rate board are not applicable to him in view of some Division Bench decision of this Court. For that matter, it may be mentioned that the Division Bench decision or for that matter any decision of the superior Court are to be followed by the Courts of law as and when the proceedings come before them.
5. Article 226 of the Constitution of India authorises every High Court, to issue, to any person or authority, including any Government appropriate cases within those territories, directions, orders or writs including writs in the nature (i) Habeas Corpus, (ii) mandamus, (iii) prohibition (iv)quo warranto and (v)certiorari or any of them "for the enforcement of the rights conferred by Part III and for any other purpose." The question is whether this Court can while observing that the petition has no force may also say that a particular method shall be adopted in dealing with an individual case or client. The authority given to Courts under the Article has to exercised with restraint and it is not supposed that the power would be exercised for any fanciful purpose according to the whims of any individual . may be that the limitations in this behalf cannot be defined but it is quite evident that the power should not be exercised arbitrarily, capriciously or indiscriminately. The limitation can to some extent be summarized with reference to the cases of Olga Tellis v. Bombay Corporation, and , Naresh v. State of Maharashtra and Janardhan Reddi v. State of Hyderabad (e) in the following form.
6. The jurisdiction of the Supreme Court under Article 32 or of a High Court under Article 226 to enforce a fundamental right arises where a fundamental right of the petitioner has been affected by an Act or order in one of the following cases:
a) Where the action has been taken under a ' Statute which is ultra vires of the Constitution.
b) Where the Statute is intra vires but the action taken is without jurisdiction.
7. Of course, there cannot be an exhaustive list where after an authority shall cease but one thing is certain that there should be a wrong or may be an expected wrong against the law and not a mere apprehension of an action which though not pleasant for an individual may not be illegal, and that above can give rise to a cause for issuance of a writ. A reference here to the law laid down in AIR 1985 SC 1289, State of Rajasthan v. Swaika Property, will be worthwhile and it can be summarized as though the powers of the High Court under Article 226 are far and wide and the Judges must ever be vigilent to protect the citizen, the Judges have a constructive role and, therefore, they must always use each extensive powers with due circumstances and self ordained restraint in the larger public interest. It may be added here that in all matters of offences, there is also another person, complainant informant or people (State) who is equally entitled to protection of his rights from the Court.
8. In order to see the development of law from time to time. In the matter of fundamental rights and personal liberty, a simple reference to para 6 of the judgment of Bhagwati, J. in the case of Maneka Gandhi v. Union of India will serve the end. "The law must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving 'a person of 'personal liberty' and there is consequently no infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article." 9. Again in para 7 it was observed "in fact equality and arbitrariness are sworn enemies, one belongs to the rule of law in republic while other to the whim and caprice of an absolute monarch." The Courts are no exception to this princple and there can be no guarantee in respect of them over except an approach independent, unbiased and without prejudices; and even these are not for or against individuals but even a presumption against the State or acts of public servants could not be allowed to weigh while dispensing justice. The touchstone will be "if it would be right, just and fair." The applicability of the principles of natural justice even to the administrative law cannot be denied and any denial in this behalf will be the beginning of injustice but the law on ambit in the case of Menaka Gandhi was the Passports Act 1963 and not the Code of Criminal Procedure or Essential Commodities Act. The validity of the Cr.P.C. or E.C. Act has not even been challenged here on any ground. Though, it was once said that all this has resulted from the deletion of Section 438, Cr.P.C. It may be, but in this state Section 438 is not on the statute book and the validity of the amendment deleting it, is not challenged before us, and has already been decided much before. It, will be frustrating to substitute the deleted law by making some direction in individual cases. Even the Judge made law, may be, by way of judicial decisions, common law or directions or superintendence under Article 227 of the Constitution should not be individual in their application. Laying down ways or direction for individuals will be against the basic concept of equality before law as well as fair play in action which is the soul of natural justice. 10. Though the vires of the Cr.P.C. or any of its existing provisions have not been assailed before us, I will like to say a little about the scheme of this law in brief. In every wrong there is infringement of some right and with every right there is a corresponding duty for others which may generally be called towards society. The wrongs in this behalf are sometimes termed as offences and they have been made punishable in order to keep the respect for the rights of others. Some of these considered to be more valuable and important have been made cognizable offences and they have been made a burden of the State, as it is called in India possibly because of the history and succession of authority from the foreign rule in due course. We have placed State for crown and Rex in due course. The same authority in U.S.A. is named as 'People'. That is to say that the alleged infringement of right of another by an individual is an offence against all the remaining individual citizens of the nation. 11. The words "except according to procedure established by law" in Article 21 of the Constitution are not for mere luxary. They have a purpose. Of course, as observed the procedure has to stand the test of judicial scrutiny because the constitution has to be read as a whole and a law will not be a law merely because it has been given this term by legislation but has to be limited within the parameters fixed by the Constitution are within the competence of the legislature concerned, do not infringe the fundamental rights enshrined in the Constitution and may be in future, not against the principles of human rights."
12. The reasonableness of the laws of Preventive Detention are to be weighed in scales different from those for providing the justice and infringement of rights. The principles of natural justice are already taken note of by the legislature and the procedure is not one of whims of executive functionaries. The code as it is, proceeds in a gradual manner. It does provide for arrest by a police officer (Section 4!) but limits it by Sections 169, 170 and 171 in various ways. The law does provide that at the time of arrest the person concerned will be informed the reasons for the action and naturally it follows that he can say against it and explain. Not only that, the law proceeds gradually in the matter of time for detention. Police Officer is not authorised to detain the individual for more than 24 hours irrespective of the other limitations placed on his action by Sections 157, 169 and 170, Cr.P.C. He has to be produced before a Magistrate who again takes stock of the situation and has authority to authorise the detention for limited period subject to the condition that there is material against the indvidual. Then come to the provisions of bail and trial. To think that the police officers concoct a case or even to think in individual case that it has been concocted by the police cannot be justified. They are all public servants, they have been given authority by law enacted by the Parliament or Legislation of the Stato. Theres has to be a limit where the person are to relied upon and it will be too much to think that except the accused or his pairokar who has generally half-heartedly sworn an affidavit., the entire system is devoid of good faith. There has to be a risk in every action of State or People. Of course, there is presumption of innocence surely with every accused but it is a presumption for trial and weight of evidence and not of an immunity from State action. If it is to be taken to that extent, the law should provide that nobody shall be detained at all till he has been held guilty finally by the court of appeal also as the element of mistake cannot be denied till the decision has become final. Since the law is otherwise it has to be expected and different public servants invested with different authorities have to be allowed to function in their own legal, ways. Of course, action against the law procedure is not to be tolerated and it will be the duty of all courts, may it be by way of writs or damages in torts to decry it and and if justified, to compensate for it.
13. In Asstt. Collector Central Excise v. Dunlop India Ltd. it has been observed that the law presumes that public authorities function properly and bona fide with due regard to the public interest, a court must be circumspect in granting interim orders, causing administrative burdens and inconvenience. Prudence, discretion and circumpection are needed
14. The principle of self-restraint was relied upon as back as 1951, in the case Janardhan Reddy v. State of Hyderabad in the form "The power given to the Supreme Court under this provision is a large one, but it has to be exercised, in accordance with well established principles. The writs under the article must obviously be correlated to one or more of the fundamental rights conferred by Part III of the Constitution and can be made only for the enforcement of these rights. 'Similarly' such orders for any other purpose is also not be utilised except in exceptional cases (In the matter of Anandan ). This authority has to be exercised by the Supreme Court in the case of Janardan Reddy , .
14A. The same principle was recognised in the case Malab Haji Husain v. Madhukar Purshottam Mandkar, in its words 'Inherent power conferred on High Courts under Section 561-A, Cr.P.C. has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself.
15. In the case of Dr. Raghubir Saran v. State of Bihar, , the Supreme Court after referring to a number of decisions of various courts and High Court concluded : 'High Court as the highest court exercising criminal jurisdiction in a state has inherent power to make any order for the purpose of securing the ends of justice. Being an extraordinary power it will, however, not be pressed in except for remedying a flagrant abuse by a subordinate court of its powers. The principle also seems to have been recognised in Pampapathy v. State of Mysore, , Madhu Limaye v. State of Maharashtra, , Kaushi Ram v. Hashim, AIR 1959 SC 542 : (1959 Cri LJ 658) and State of Orissa v. Ram Chandra Agarwal, :
"The distinction must always be drawn between absence of legal evidence and absence of reliable evidence. If it could be said with justification that there was no legal evidence at all in support of the prosecution case, it may lead to the inference that, the commitment was bad in that it was not based on any legal evidence at all. But on the other hand, where circumstances are relied upon to show that the evidence may perhaps not be delivered, they do not lead to the inference that there is no legal evidence on the record."
16. The Supreme Court after referring to the above laws has observed in para 137 of the judgment in the case of Janta Dal v. H.S. Chowdhary, (1993 SCC (Cri) 36 : (1993 Cri LJ 600 at p 631) (Para 135).
"This inherent power conferred by Section 432, Cr.P.C. should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete, and hazy, more so when the evidence has not been collected and produced before the Court and the issue involved whether actual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast, rule can be laid down in regard to the cases in which High Court will exercise its extraordinary jurisdiction of causing the proceedings at any Stage."
17. The principles have equal application to petitions under Article 226 of the Constitution and officers however, low or high they may in whatever law they ae enforcing should not a be reduced in their size by premature interference from High Court.
18. A reference to the case of Bhajan Lal will also be required here as certain aspects have been left by their Lordships since they had already been taken up in this case of State of Haryana v. Bhajan Lal 1992 SCC(Cri) 426 : (1992 Cri LJ 527). A reference to the Bhajan Lal's case also be required to meet a situation of law laid down during hearing of a criminal appeal and effect upon the decision in writ jurisdiction and, miscellaneous matters but Bhajan Lal's case seems to be an appeal in the writ jurisdiction. The fact of the matter is that whatever law has been laid down by the Supreme Court in any jurisdiction, has to be respected by courts in India in view of Article 141 of the Constitution. The difference in the jurisdiction also has no effect on the binding nature of decisions even if it is within two benches of the same High Court as indicated in the case of Ramjiavan v. Smt. Phoola, AIR 1976 SC 844.
19. That apart, the Hon'ble Supreme Court in Bhajan Lal case (1992 Cri LJ 527) has laid down, though not exhaustively, the parameters wherein the first information report can be quashed as under:- (1) Where the allegations made in the first information report are in 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) Whether the allegations in the first information report and other materials, if any accompanying the FIR 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 dislose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR 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 proceedings and/ or where there is a specific provision in 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."
20. I am not referring to above to finish the list as an exhaustive one, as in the, present case, the issue is about the direction, restraining arrest. The arrest in such cases generally is a part of the investigation and it becomes an affair concerned with the court only when the accused is brought before the court under arrest or appears and in both events till the submissions of the charge-sheet (Report under Section 173, Cr.P.C.), the matter is only of investigation. The judicial system comes into operation only after the receipt of report under Section 173, Cr.P.C. whereafter it has either to (sic) the offence with a charge-sheet or enquire into the desirability of further action of police on a final report, where the evidence is not found sufficient after a notice to the information etc. What I wish to indicate is that till that stage the arrest is an incident of investigation and though it is limited, an addition to the good faith of the police officer the judicial review of the judicial authority, it cannot be said to be a judicial Act of the police so as to be subject to the law relating to writ of certiorari, or any action as a preventive measure.
21. It will be worthwhile to refer in this behalf to the law laid down by the Surpeme Court in the case of Eastern Spinning Mills Sri Virendra Kumar Sharda v. Rajiv Poddar , where interference by High Court in the matter of investigation has been observed to be permissible only if non interference would result in miscarriage of justice. I will better quote a part of the judgment (Para 4):
"We consider it absolutely unnecessary to make reference to the decision of this Court and they are legion which have laid down that save in exceptional case where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation."
22. I will now revert back to the Janta Dal case (1993 Cri LJ 600) (SC) and quote some more parts of it with respects (at pp 632 to 635 of Cri LJ):
"144. The inherent power of a High Court to stay proceedings has been respectively debated in many English Courts and a majority of the judgments stressed that the power of staying proceedings should be reserved only for exceptional cases. We are not inclined to refer to all those English decisions except a few.
147. Most of the decisions of the English cases laid down the dictum that only in cases where there is substantial amount of delay or potential abuse of process or vexatious prosecution or the proceedings are tainted with malice etc. alone the Court can step in by exercise of the inherent power. 148. The Privy Council in Emperor v. Khwaja Nazir Ahmad (AIR 1945 PC 18 : (1945) 46 Cri LJ 413) examined the question of the inherent power of the High Court in interfering with the Statutory investigation of the police and laid down the following dictum:
"Just as it is essential that every one accused of a crime should have free access to a. Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, 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, (emphasis supplied)."In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, 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 complementary, 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. Always, of course, subject to the right of the Court to intervene in an appropriate case when moved under Section 491, Criminal Procedure Code to give directions in the nature of habeas corpus in such a case as the present, however, the courts, functions being when a charge is preferred before it and not until then. It has some times been thought that Section 56A has given increased powers to the Court which it did not possess before that section was enactaed. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived by the passing of that Act. No doubt, if no cognizable offence is disclosed, and, still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation.
149. Lord Denning in R. v. Metropolitan Police Commissioner (1968 (1) All ER 763 at p. 769) has observed thus:
"Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of police or the chief constable, as the case may be, to decide in any particular case whether enquiries 'should be pursued, or whether an arrest should be made or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter."
150. This Court in Jehan Singh v. Delhi Administration held that when the first information report discloses the commission of a cognizable offence, the statutory power of the police to investigate the cognizable offence cannot be interfered with in exercise of the inherent power of the Court. 151. Chandrachud, J. (as he then was) in Kurukshetra University v. State of Haryana pointed out this: (AIR Headnote).
"Inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory powers has to be exercised sparingly with circumspection and in the arrest of rare cases. Thus, the High Court in exercise of inherent powers under Section 482, Criminal Procedure Code cannot quash a first information report more so when the police had not even commenced the investigation and no proceeding at all is pending in any court in pursuance of the said FIR".
152. Desai, J. articulating for the Bench in State of Bihar v. J.A.C. Saldanha has clearly well demarcated the sphere of activity in the field of crime detection in the following words (SCC page 572) : (at p 109 of Cri LJ) (para 25):
"Investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Govt."
153. In Eastern Spinning Mills and Virendra Kumar Sharda v. Rajiv Poddar (1989 Supp (2) SCC 385 : (1985 Cri LJ 1858) this Court has observed thus: (SCC p 386 para 4). "We consider it absolutely unnecessary to make reference to decisions of his Court and they are legion which have laid down that save in exceptional case where non-interference would result in miscarriage of justice, the court and the judicial process should not intefere at the stage of investigation." (Already referred to above in detail). 154. In State of Haryana v. Ch. Bhajan Lal (1992 Cri LJ 527) (SC) we had an occasion to examine the scope of the inherent power of the High Court in interfering with the investigation of an offence by the police and laid down the following (SCC pp 364-65 para 60, SCC (Cri) p 456) (at p 543 of Cri LJ para 62):
"Then sum and substance of the above deliberation result in a conclusion that the investigation of an offence is the field 'Delusively reserved for the police officers whose powers in that field are unfettered so long as the power to investigation 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 afore-, mentioned. 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 apppropriate 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."
159. Sawant, J. in his submission note in Kekoo J. Manech Ji v. Union of India has expressed his opinion thus: (1980 Cri LJ 258 Bombay) (para 21):
"This is admittedly a stage where the prosecuting agency is still investigating the offences and collecting evidence against the accused. The petitioner, who is the accused, has, therefore, no locus standi at this stage to question the manner in which the evidence should be collected. The law of this country does not give any right to the accused to control, or interfere with the collection of evidence."
157. The Seven Judges Full Bench of the Allahabad High Court went into matter very exhaustively in Ram Lal Yadav v. State of U.P. 1989 Cri LJ 1013 and held that "the power of the police to investigate into a report which discloses the commission of cognizable offence is unfettered and cannot be interfered with by the High Court in exercise of its inherent powers under Section 482 Criminal Procedure Code." This decision has overruled the earlier decisions of that Court in Prashant Gaur v. State of U.P. (1988 All WC 829) (FB) and Puttan Singh v. State of U.P. (1987 All LJ 599).
158. After the proposition of law enunciated by this Court in a series of decisions relating to exercise of the extraordinary power under Article 226 of the Constitution of the inherent powers under Section 482 of the Code in Bhajan Lal's case (1992 Cri LJ 527) we Wave given certain category of cases by way of illustrations wherein the power of quashing could be exercised either for preventing abuse of process of any Court or otherwise to secure the ends of justice stating that it may not be possible to lay down any precise, clearly defined and sufficient channelised infrangible guidelines and rigid formula to give an exhaustive list of various kinds of cases wherein such power should be exercised. We do not like to prolong the discussion on this point any more. However, it has become necessary at least to deal with the first alleged illegality. We are constrained to do so because of the assertion of the High Court, that being "that the first information report on the face of it does not disclose any offence."
23. The maintainability of a writ petition is correlated to the existence of fundamental right AIR 1981 SC 344. The words 'on directions has to be read along with the various writs mentioned in the Article itself and not divorced from it. There has to be a distinction between letters of a person in authority to his subordinates and a direction from a Court which is not only a court of record but which has to function with utmost caution to maintain that it has acted in accordance with the principles of natural justice. Any direction deviation from the ordinary course of law or procedure will need at least a hearing of the other party and that other party is not a mere representative of State as Public Prosecutor but has to be a person well posted with the facts of each individual case, that is an Advocate properly instructed and not mere retainer.
24. A direction or order of this Court cannot be made against the specific laws of procedure and any such direction in individual cases may mean a fresh procedure for each ignoring the validly established law of procedure rendered by the Parliament. We are living in an atmosphere of justice, through enforcement of law and not that of a king Will, be the justice and the law is to subserve it. Any interference of this manner will be against equality before law enshrined in the Constitution and even the directions by the superior court may keep varying from case to case, individual to individual and person to person "where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are forbidden. (AIR 1936 PC 253 (2) Nazeer Ahmad v: King Emperor).
25. Taking the matter of remedy in various writ, as a general relief has also been desired separately, the first difficulty would be that none of them is available at this stage i.e. during the pendency of investigation only. In the matter of habeas corpus the first requirement is that the man is in illegal custody. I would not go into the question as to whether the validity of the law itself has to be gone into or not as it would be immaterial for the purpose of the proceedings of the present nature and it will be sufficient to say that it may be, that, where the Act of legislature directing the detention is hit by any provision or fetters in the Constitution the detention may be illegal but the mere thought that an arrest will lower the person in general esteem may not justify the striking of the provisions for arrest etc. in the Code of Criminal Procedure. However, since the vires of those provisions have not been assailed, this need not be gone into in detail. In the petitions of the present nature the man has not yet been taken into custody. Various decisions referred to at the bar specially in the case of Isha v. State are based on the concept that in the State of U.P. the provisions of anticioatory bail have been wrongly withdrawn. I am afraid it is not for the Courts to consider as to what the law should be, or is it for the Courts to say that because of particular type of law has been suspended or withdrawn in the State, the purpose should be achieved by making some commanding orders. If all Judges of all courts were to frame orders for achieving the end, which has been denied by the Legislation, it may very well give rise to a chaos. The High Court, of course, can strike down certain laws if they are not within the frame work of the Constitution but to think that a legislation indirectly can be made by way of judicial decisions to achieve what has already been denied by the legislation cannot be justified at least in so far as Article 226 of the Constitution is concerned. I will not dilate upon this aspect as the availability of this jurisdiction of the writ of habeas corpus stands itself barred by the factor that the petitioner is still to be taken into custody and is not in legal or illegal custody so far. A mere moral restraint is not sufficient as observed by Belli in his Book of Habeas Corpus in Volume I pages 15 and 16. There has to be some kind of restraint on the liberty of movement of a person in order that this writ may be perused. It may be that actual physical confinement may not be necessary but control and custody at least have to be there to make habeas corpus writ available to the person concerned. In the case , it was observed that a habeas corpus could not be granted when the finding was that the person was committed to Jail custody by the competent order of a competent court, which prima facie was neither without jurisdiction nor illegal. The observation that the petition does not disclose any occasion for interference presupposes that the action in furtherance of the first information report of investigation is not illegal and thereafter making the order for the same day bail or anything like that cannot be said to be justified as an order of habeas corpus or even a direction.
26. A writ of mandamus is issued to do an act in accordance with the law. In order to have a cause of action for mandamus, there has to be some order or statutory duty which may be considered to be not in accordance with the law or demurable or pendency of an action before a public authority where he may not be disposing it of where an inaction or omission may be demurable. In the cases of the present nature, none of the two is available. Where first information report or even the material of investigation discloses an offence, the investigation has to go on and it will be too much to think that because the investigation is going on, the mandamus should be issued to stop it. A mandamus presupposes orders which are illegal, void or wholly without jurisdiction and unless some public authority has jumped over the law, there can be no occasion to approach the court. The court may have to correct the public servants in the case of breach of law or constitutional rights but by no sense has to dictate and advise any public servant muchless a subordinate court. A mandamus cannot be issued where there is a dispute about facts, the informant making certain allegations and the petitioner denying them here. There is forum for every thing and it has to be done with proper stages and by proper authority. There is no presumption in law that whatever has been said in the first information. report must be a white lie. If there has been a wrong, it is the authority and business of the investigating agency to investigate the same and bring proper material before the courts authorised to take cognizance thereof. The accused in those cases are to be dealt with according to the provisions if law contained in the Code of Criminal Proceure and other analogus special laws. The entire Administration is not to be run by the High Courts on the basis of affidavits much less the affidavit of petitioner only. Above all, the mandamus, if it may issue in the cases of the present nature will be assuming a shape or direction to a public servant to do and discharge his function in a particular fashion according to the direction of the High Court while he has not yet exercised his discretion. That will amount to correction of wrongs which have yet to occur or may not occur at all. Certainly they cannot be for laying down principles of procedure to be adopted in individual cases, that may be looked upon only as an unhealthy encroachment upon the authority of lower courts.
27. In the cases Tukaram v. R.N. Shukla , it has been held that there can be no mandamus to control exercise of discretion. Whether to arrest or not in the authority of the police Officer under the Code of Criminal Procedure and it cannot be exercised through the High Court by way of direction under of each court. The Presiding Judge of each court is supposed to be holding in view the entire work for the day, and that should not in my opinion be controlled by this Court by making a preference to one over the other. As to how a person who has surrendered, is to be dealt with till his bail matter is disposed of is also discretion of that court and not that of this Court. This Court can lay down and in my opinion rightly, as a piece of law for general that the court concerned has jurisdiction to admit him to a temporary bail on personal bond only but there cannot be direction from this Court as that will be controlling the discretion of the authority or the court concerned.
28. The principles of procedure to be adopted are laid down in legislative Acts. They may be interpreted by the courts and may even in certain cases be struck down for being violative of the provisions of the Constitution but certainly cannot be enacted by the Courts. "The High Court cannot do so, for the court can merely interpret the section; it cannot re-write, re-cast or re-design the section. In interpreting the provisions, the exercise undertaken by the Courts is to make explicit the intention of the Legislature which enacted the legislation. It is not for the court to reframe the legislation for very good reason that the powers to legislate have not, been conferred on the Court." 29. It was so laid down in the case of State of Kerala v. Mathai Verghese, . 29A. Even where the court finds that some thing ought to have been provided in the law but has not been so provided, it cannot supply the provsions by interpreting the law. "There is no scope for importing into the statute words which are not there. Such importation would be not to construe, but to amend the statute, even if there be casus omissus, the defect can be remedied only by legislation and not by judicial interpretation. [Tarulata Syam v. Income-tax Commissioner ].
30. The writ of certiorari issues out of a superior court and is directed to the Judge or other officer or an inferior court of record. It may be extended in certain cases to the functions of other Tribunals but in no case can it cover the investigation and actions of a police officer. An error of jurisdiction in at least in quasi-judicial function is the first requirement and, therefore, it may not be available in the matter or investigation by the police. Even if there has been some unauthorised action on the part of the police and arrest thereon, it may give rise to habeas corpus and not certiorari. The police never acts in quasi-judicial manner.
31. One of the fundamental principles in regard to the issue of a writ of certiorari is that the writ, can be availed of only to remove or adjudicate on the validity of judicial act. In this behalf of the law laid down in the case of T.C. Basappa v. T. Nagappa, is clear.
32. Certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner for a writ of manda mus must show that he has a Segal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be inforced must have three qualities. It must be a duty cf a public nature created by the previsions of the Constitution or of a status or some rule of common law. The remedy of a writ of mandamus is not intended to supersede completely the modes of obtaining relief by an action is a civil court or to deny defence legitimately open in. such actions. The power to issue a writ of mandamus is a discretionary power. It is sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a Civil Court and to refuse to issue a writ of mandamus, A writ of mandamus is not a writ of course or a writ of right but is, as a rule a matter for the discretion of the court. In petitions for a writ of mandamus, the Supreme Court and High Courts do not act as a court of appeal and examine the facts for themselves. It is not the function of the court to substitute its wisdom and the discretion for that of the person to whom the judgment in the matter in question was entrusted by law. The Supreme Court does not issue a writ of mandamus except at the instance of a party whose fundamental rights are directly and substantially invaded or are in imminent danger of being so invaded. A writ of mandamus is not issued to settle private disputes or to enforce private rights. A writ of mandamus cannot be issued against the President of India or the Governor of State. In an application for a writ of mandamus, it must be mentioned that a demand for justice had already been made and refused. The petitioner must not be guilty of latches. A writ will not be issued unless the court is certain that its command will be carried out. The court must not issue a futile writ. This writ does not lie to a State Legislature restraining it from considering a bill which is alleged to be in violation of the Constitution.
33. Lastly though not the least important, is the question as to whether there is any accepted bundle of facts before the High Court in such cases? So far even the investigation has not ended and the version of defence can be available only at proper stage. There has to be difference between the two and in writ jurisdiction, the High Court will not sit to decide the disputed questions of fact to dispose of the matter. The rival allegations can be only thought of at the preliminary stage but are decried to be relied upon and weighed by the Supreme Court in the case of State of Haryanav. Bhajan Lal, . It is too well settled as a law that the disputed questions of fact are not to be gone into in writ petitions.
34. The impression that this relief should be given otherwise a wrong will occur to him is pre-supposition in the absence of an order of the concerned authority. The impression that the petition will become infructuous if remedy is not provided at the earliest stage would also not obtain as the nature of petition would not admit of it. It is a matter between the two balances. If the interim relief is granted, petition becomes exhausted and if it is not granted it becomes infructuous. Should it give rise to a situation that forgetting the principles of natural justice and the limitations of the law for issue of writs the relief should be granted without hearing the parties which I mean not only the representative in the form of Standing Counsel but the person who might be well posted with the facts as well. No law will apply in absence of the facts. In view of the law discussed in the case of State of Jammu and Kashmir v. Mohd. Yaqoob Khan , such an order may not be justified.
35. Lastly, I would also refer the law laid down by the Supreme Court in the case of Union of India v. Deoki Nandan Agarwal, AIR 1992 SC 96. The relevant portion may be better quoted (at p 101 of AIR):
"It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate, the power to legislate has not been conferred on the Courts. The Court cannot add words to a Statute or read words into it which are not there. Assuming there is a defect of an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities."
36. It is true that in view of the above discussions the authority of the Court to interfere under Article 226 of the Constitution of India should be applied in rare of the rarest cases only but in the present case there is one redeeming factor. There are allegations in the writ petition that there was bad blood between certain Officers of the Executive, resulting in their transfer on account of complaint by the petitioner. There has been doubt in the matter of investigation as well as there was a final report and subsequently the S.P.O. had given a different opinion and also that the breach of the provisions has been of a very minor nature. Considering these factors, we are inclined to grant him an interim relief.
37. Standing counsel is allowed 3 weeks' time to file a counter-affidavit. Rejoinder may be filed within two weeks next. Till disposal of the application for interim relief after due exchange of the above mentioned affidavits, the arrest of the petitioner in case crime No. 74 of 1991 under Section 3/7 of the Essential Commodities Act, police station Khairagarh, District Agra, shall remain stayed.
38. A certified copy of this order may be issued to the learned counsel for the petitioner within 24 hours on payment of usual copying charges.