Hon'ble Rajeev Misra,J.
1. Sri Anil Kumar Yadav, Advocate, holding brief of Sri Rajneesh Tripathi, learned counsel for petitioners and learned A.G.A. appearing for State are present.
2. This writ petition under Article 226 of Constitution has been filed seeking a writ of certiorari for quashing of First Information Report dated 22.04.2018, registered as Case Crime No. 212 of 2018, under Sections 147, 498A, 323, 504, 506, 313 I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Kishni, District Mainpuri.
3. From perusal of first information report it cannot be said that commission of a cognizable offence is not made out. There is no material on record to demonstrate that proceedings initiated by means of aforesaid report are vexatious, frivolous or otherwise illegal. In the circumstance, no interference is called for.
4. The learned counsel for the petitioners then submitted that respondents-authorities be directed not to arrest petitioners by observing the law laid down by Apex Court in Joginder Kumar Vs. State of U.P. 1994 Cri.L.J. 1981=1994(4) SCC 260, Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (4) SCC 437 and this Court in Smt. Amarawati and another Vs. State of U.P., 2005(1) AWC 416. He also said that similar orders have been passed by this Court in many matters and, therefore, following the principle of parity similar direction must be issued in this case also.
5. We propose to examine on this aspect of the matter with deeper scrutiny. It is not the case of petitioners that they have already surrendered or that though they have attempted to surrender but there is any illegal, unauthorised obstruction created by respondents in such endeavour of petitioners. It is also not the case that any authority of this Court or Apex Court though cited before court concerned but it has refused to consider the same or ignored. No such allegations have been made.
6. The law laid down by Apex Court by virtue of Article 141 of the Constitution of India, is binding on all courts and authorities across the nation and everybody is supposed to act in the aid and enforcement of such law laid down by Supreme Court. There is no presumption that the respondents shall not follow the law laid down by Supreme Court. There is also no presumption that a decision of Supreme Court laying down certain law, if cited, in support of arguments by a party, that would not be looked into and appreciated by anyone. To follow the law laid down by Supreme Court, no sanction or approval or direction of this Court is required. To ask for such direction, when there is no factual foundation in the writ petition, is nothing but doubting the capability, approach and efficiency of the respondents, which is not in the larger public interest. Moreover, in absence of any factual foundation, it is well established that no futile or uncalled for directions are to be issued by this Court. Its hand are already full of work and rather extremely loaded therewith, hence entertaining cases just for futile direction, which ex facie deserved to be dismissed, would be nothing but encouraging avoidable unnecessary burden upon this Court.
7. Even otherwise a direction to follow a decision of Apex Court without appreciating, whether it applies on the facts and circumstances of the case and would be cited by parties concerned, is like anticipating something, which is not existing in presenti and on the facts of the case, may not be applicable.
8. Moreover, in the entire writ petition there is no factual foundation laid down by petitioners that police authorities are trying to arrest them illegally disregarding the directions of Apex Court in Joginder Kumar (supra) and Lal Kamlendra Pratap Singh (supra) as well as this Court in Smt. Amarawati (supra). In absence of any factual foundation the direction sought from this Court are neither justified nor appropriate nor should be issued by presuming certain facts which are not part of record and petitioners themselves have not made any complaint in respect thereof.
9. It may also be pointed out that in none of the cases referred to above there is any complete embargo against arrest by police if it is otherwise justified.
10. In Joginder Kumar (supra), a habeas corpus writ petition under Article 32 of the Constitution was filed before Supreme Court alleging about unlawful detention of petitioner (a practising lawyer) by police authorities and seeking his release. The Senior Superintendent of Police, Ghaziabad appeared before Court and admitted to have detained petitioner for five days, not in detention but for taking his help in inquiry/investigation of an offence of abduction. Since the petitioner was already released by police, the Court found that relief in habeas corpus now cannot be granted. Yet it enquired as to how and in what circumstances, without informing the court concerned, an individual could be detained by police for five days. The Court found it a case of massive violation of human rights, besides the statutory legal provisions relating to arrest etc. The Court held that law of arrest is one of balancing individual rights, liberties and privileges, on the one hand; and, individual duties, obligations and responsibilities on the other hand. The Court said that an arrest cannot be made merely for the reason that a police officer is empowered under law to do so. The existence of power is one thing and justification for exercise thereof is another. Genuine, justified and satisfactory reasons must exist before a police officer should go to arrest a person so as to curtail his fundamental right of life and liberty. A person is not liable to arrest merely on suspicion of complicity of offence. Except in heinous offences, an arrest must be avoided unless there exists reason therefor. That was not a case where after inquiry or investigation by police, a charge sheet was filed and thereupon an incumbent was to surrender himself to the Court, and the power of Court either to release him on bail if so requested, or to sent him in judicial custody was under consideration.
11. This decision then was considered in D.K. Basu Versus State of West Bengal 1997 (1) SCC 416 which was a public interest litigation entertained by Supreme Court taking cognizance of a letter received from Executive Chairman, Legal Aid Services, West Bengal complaining about certain custodial deaths.
12. The decision in Joginder Kumar (supra) in similar circumstances has been referred and followed subsequently also in K.K. Jerath Vs. Union Territory, Chandigarh and others, JT 1998(2) SC 658 which was a case of anticipatory bail under Section 438 Cr.P.C. apprehending arrest during a C.B.I. inquiry. It was attempted to argue that there is presumption of innocence in favour of each individual until charge against him is established and, therefore, it would not be consistent with philosophy of Constitution that such a person should be subjected to interrogation by application of psychological or ambient pressures much less physical torture. It was stressed that Apex Court has a duty to protect a citizen against such inroads of these fundamental rights. The Apex Court while dismissing petition observed that in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation, it would be allowed otherwise there could be hurdles in investigation even resulting in tampering of evidence. In other words the Apex Court did not find any attraction in the arguments for the reason that a bail application has to be considered in the light of already established principle through various judicial precedents and not on mere asking.
13. There are several subsequent cases also wherein the Apex Court has distinguished the cases where there was no allegation of misuse of power of arrest by police authorities and an incumbent was arrested having been found prima facie guilty of commission of a cognizable offence.
14. In Lal Kamlendra Pratap Singh (supra) the matter came to be considered before the Court for quashing of a first information report. Here also apprehended arrest due to mere registration of a first information report. The matter was brought before this Court seeking quashing of first information report. The High Court dismissed the application and thereagainst the matter was taken to Apex Court. A complaint was made that during investigation or inquiry, petitioners apprehend their arrest by police authorities in an arbitrary manner. It is in this context the Court reminded police authorities to follow the dictum and direction laid down in Joginder Kumar (supra). When the matter was pending before Supreme Court, the police completed investigation and submitted a charge sheet. The Court then declined to interfere since the charge sheet was submitted and permitted petitioner to approach the court concerned by filing a bail application. The Court approved and reminded a seven Judges decision of this Court in Smt. Amarawati (supra) wherein an observation was made that the absence of power of anticipatory bail in State of U.P. would not debar the concerned Court/Magistrate to grant an interim bail if there is any likelihood of delay in disposal of bail application finally.
15. Here also in Lal Kamlendra Pratap Singh (supra), there is no direction by Apex Court that even if there is no factual foundation or that there is some justification for the police still a blanket direction can be issued to police which may, in a given case, influence or interfere with the smooth investigation. It is also well settled that no uncalled for observations or directions should be issued by this Court unless they are necessary for giving due justice to the parties before Court, founded on pleadings and facts of the case.
16. So far as various orders cited at Bar, we find that in none of those case all these aspects have, as discussed above, have been raised, argued and decided and those judgements do not lay down any binding precedent. The ultimate direction or action of the Court do not constitute a binding precedent. What is binding precedent is the ratio, i.e., the law laid down by this Court. The law is laid down when an issue is raised, argued and decided. That is not so in respect to orders cited at Bar.
17. It is lastly contended that till charge-sheet is submitted, as a matter of interim protection, arrest of petitioners may be stayed and at least to this extent, an interim order may be passed.
18. The submission, in our view, lacks substance being contrary to law that when a petitioner is not granted final relief and writ petition is to be dismissed, no interim order in such matter can be passed.
19. Once the writ petition has to be dismissed, this Court has no power to pass any order in the nature of interim or interlocutory order. The Apex Court has deprecated such practice and has held, if final relief has been declined, no interim relief/interim order should be granted to petitioners. The first such case is State of Orissa Vs. Madan Gopal Rungta AIR 1952 SC 12. Therein High Court declined to grant final relief on the ground that there was an alternative remedy available to petitioner and, therefore, dismissed the writ petition relegating petitioner to avail alternative remedy, but then observing that before filing suit, 60 days' notice under Section 80 C.P.C. will have to be given, which will take some time, an interim relief was granted. Deprecating this, Apex Court said that grant of relief under Article 226 is founded only on its decision that a right of the aggrieved party has been infringed. Therefore, existence of right is foundation of exercise of jurisdiction under Article 226. When the Court has decided nothing at all in respect to rights of parties, it would not be justified to grant any relief, final or interim, as the case may be, since Article 226 does not confer such jurisdiction. In para 6 of the judgment, the Court said:
"In our opinion, article 226 cannot be used for the purpose of giving interim relief as the only and final relief on the application as the High Court has purported to do. The directions have been given here only to circumvent the provisions of section 80 of the Civil Procedure Code, and in our opinion that is not within the scope of article 226. An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. If the Court was of opinion that there was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution of such suit, issue directions in the nature of temporary injunctions, under article 226 of the Constitution. In our opinion, the language of article 226 does not permit such an action. On that short ground the judgment of the Orissa High Court under appeal cannot be upheld."
20. The aforesaid dictum has been followed in Amarsarjit Singh Vs. State of Punjab AIR 1962 SC 1305 (para 22), Cotton Corporation of India Limited Vs. United Industrial Bank Limited and others AIR 1983 SC 1272 (para 10) and recently in Km. Hema Mishra Vs. State of U.P. and others (2014) 4 SCC 453 (para 22).
21. In view thereof, we have no hesitation in observing that the prayer for quashing the F.I.R. if is declined on the ground that allegations contained therein discloses cognizable offence, therefore, no interference is called for at this stage, this Court would not be justified in granting any relief as an interim order by staying arrest since it will amount to grant a relief to the petitioners without deciding their right in any manner and this would be against the exposition of law settled by Apex Court in the aforesaid decisions.
22. Even otherwise, at this stage, this Court is not examining legality or otherwise of arrest made by Police, since neither any one has been arrested nor this writ petition as such has been filed with a complaint that Police or Investigating Officer has committed violation of any provision pertaining to arrest of any person or the petitioners themselves. The main relief in the writ petition is for quashing of first information report which, admittedly having disclosed commission of cognizable offence is not liable to be interfered with at this stage.
23. In view of above, no interference is called for.
24. The writ petition is dismissed.
Order Date :- 26.11.2019 PS