Annrag Kumar Barnwal and Another vs State of U.P. and Others

B.L. Yadav, J.—The present petition Under Articles 226/227 of the Constitution of India has been filed by the Petitioners seeking a relief for a writ of Mandamus commanding the Respondents not to arrest the Petitioners or to initiate the proceedings Under Sections 82/83 of the Code of Criminal Procedure (hereinafter referred to as the Code) in connection with Crime No. 385 of 1985, P.S. Rohania, District Varanasi.

The facts of the case lie in a narrow compass. One Sanjay Kumar Verma, a student of B.A. Part II of the Banaras Hindu University, was missing since the night of 21/22nd December, 1985 and a report was lodged by his father Vijay Kumar Verma about his disappearance on 22.12.1985 at P.S. Deshaswamedh, Varanasi. On the same day the village Chowkidar Kallu Ram also lodged a report (Annexure-A to the Petition) stating that a dead body of an unknown person was lying near the Katie of village Karaka Adalpura, Varanasi. Anr. Report was lodged on 23.12.1985 by the father of the deceased Sanjay Kumar Verma at P.S. Deshaswamedh, Varanasi (Annexure-B to the petition). In that report it was stated that his son Sanjay Kumar Verma was missing from the meeting of the students held in the night of 21.12.1985 and he was last seen with Papua @ Sunil Dubai and one Gnash Dubai. The deceased had taken his tea at the tea shop of one Muunu and there he kept his cycle and thereafter disappeared with the aforesaid Pappu and Ganesh Dubey. It was prayed that legal proceedings may be initiated. On these reports the police started investigation and prepared an inquest report and sent the dead body for post-mortem examination. By that time the dead body could not be identified. A copy of the General Diary of 23-12-1985 has been filed as Annexure-C to the petition.

One Sunil Kumar Dubey Pappu was arrested on 25-12-1985 on the basis of the second report lodged by the father of the deceased. According to the allegations made in paragraph 7 onwards of the petition it was alleged that the Petitioners have no connection with the alleged crime, but the police wants to harass them and create some evidence against them and ultimately the Petitioners apprehend that they would be implicated as accused and proceedings Under Sections 82/83 of the Code could be initiated against them and they would be sent to Jail. The present petition was accordingly filed for issuing a writ of Mandamus commanding the Respondents not to arrest the Petitioners or to initiate proceedings Under Sections 82/83 of the Code.

At the admission stage a counter affidavit was filed by Sri Surendra Pandey, Station Officer who was deputed to investigate the present case and in para 3 (b) of the counter affidavit it was alleged that on 15-12-1985 a quarrel has taken place between the deceased and Anurag Kumar Barnwal, Petitioner No. 1 in the compound of the Vishwanath Temple situate in the campus of the Banaras Hindu University. In that quarrel it was alleged that the deceased had given four slaps to Anurag Kumar Barnwal, Petitioner No. 1 and the latter had given a threat of dire consequences. In para 3 (g) of the counter affidavit it has been stated that the deceased was taken on a scooter later on by Sunil Kumar Dubey @ Pappu assuring a compromise to be arrived at in the quarrel that had taken place on 15-12-1985 and after some time the deceased and Pappu @ Sunil Kumar Dubey boarded a jeep where four persons were already sitting. The deceased and Pappu @ Sunil Kumar Dubey also occupied their seats in the same jeep which proceeded at a little distance. It was further stated that the jeep came to the tea shop as the accused persons knew that the deceased was sitting there. In para 9 of the counter affidavit replying para 7 of the writ petition it has been stated that there was cogent and clear evidence to connect the Petitioners with the crime and there was no question of any pressure. The investigation was still in progress before the interim stay was obtained from this Court on 30-12-1985, whereby the arrest of the Petitioners was stayed and the same order was extended till the disposal of the writ petition.

This petition came up for admission before us. The counter and rejoinder affidavits have been exchanged between parties.

Sri V.C. Misra appearing for the Petitioners urged that there was no material disclosing the offence on the basis of which the Petitioners could be arrested. Even on the basis of material collected so far no reasonable suspicion arises nor could the Petitioners be connected with the aforesaid crime. It was accordingly urged that the proceedings for investigation may be quashed and the Respondents may be directed not to arrest the Petitioners in the aforesaid crime. It was further urged that any police officer may without an order from a Magistrate and without a warrant arrest any person in view of the circumstances specified in Section 41 of the Code only when some credible information has been received or a reasonable suspicion exists of the accused having been concerned in any cognizable offence. He urged that in view of Section 50 of the Code, grounds of arrest have to be communicated with particulars of the offence for which the person is arrested without warrant. Section 157 of the Code was also referred which provides procedure for investigation. Learned Counsel for the Petitioners strongly placed reliance on State of West Bengal and Others Vs. Swapan Kumar Guha and Others, , S.N. Sharma Vs. Bipen Kumar Tiwari and Others, and In re Appasawamy Mudali AIR 1984 Mad 555.

Sri P.C. Srivastava, learned standing Counsel appearing for the Respondents urged that the invention was still in Progress and the police was colleting evidence and material. In case no marital was found agingnst the Petitioners they would not be arrested and ultimately a final report can also be made against the Petitioners. He further urged that that there was no marital against the Section of the code and urged that even on reasonable suspicion any police officer can arrest any person without warrant. He similarly referred to Section 50 of code which enacts that that person arrested has to be informed of the grounds of arrest and also that he can be released on bail when a case for the ground of arrest and also that he can be released on bail when a case for the same was made out. He placed reliance on Eastern Spinning Mills Shri Virendara Kumar Sharda v. Sri Rajiv Podder AIR 1985 SC 1968.

Having heard the learned Counsel for the parties we are of the opinion that this petition is without substance. The point for consideration is as to whether at this stage when the invention is in progress can a writ of and not to ignition the u/s 3 of the code. Form the averments made in the countered P.S. Deshaswamedih distinct Variance we are satisfied that the not be indention till the post-mortem. It is a fact that the dead body could not in the General Diary as well. There appears to be some extra pappu @Sunil Dub has told the invention officer in the out of and accused Rajesh the cord which the dead body we have perused the pst-mortem examination and it appears that that blood was oozing form the nostrils of deceased and some drops of the blood might have reached the cord as well In this way the inventions is in progress and at this stage it cannot be said that there was no material or no suspicion against the Petitioners.

Section 41 of the code, as relied upon by both the sides, enacts the manner as to how the police may arrest without warrant. It has been provided warrant, arrest any person if he is concerned in the coined offence can arrest any provide there Exton some reasonable person of the code. once an FIR has been logged in view of Section 154 of the code the person officer shall enter the Sub-section of the information in a book to be kept by such officer as prescribed by the state Government and would refer the and when it is a non coined officer view of Section 156 0f the code any officer any order of the Magistration which enacts that on the respite of an information the police officer shall for with send a report to the Magistration empowered to take congnizance of such offence upon a police report and shall proceed in person or shall depute one of his subordinate officer 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.

State of West Bengal v. Swapan Kumar Guha (supra), was a case arising out of the provisions of the Prize Chits and Money Circulation (Banning) Act,1978. Some secret information�s were received that Sancbaita Investments of 5-6, Fancy Lane, Calcutta was carrying on business of promoting and or conducting prize chit in violation of the provisions of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 if or short the Prize Chits Act). An enquiry was held secretly to verify the correctness or otherwise of the said information and the enquiry revealed that the said Sanchaita Investments was a partnership firm and had been offering fabulous interest and it was alleged that the aforesaid Sanchaita Investment was carrying on business in violation of Section 3 of the Prize Chits Act which was punishable, u/s of the said Act. Necessary actions were accordingly demanded against the aforesaid offenders. On those facts whether the offence was disclosed u/s 4 of he Prize Chits Act, the Supreme Court held in para 64 as under:

If an offence is disclosed, the High Court Under Article 226 Constitution will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed; if, however, the materials do not disclose an offence, no investigation should normally be permitted. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the Court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of the principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed. But it cannot be said that an investigation must necessarily be permitted to continue and will not be prevented by the court at the stage of investigation".

Further in para 65 the Supreme Court held as follows i "Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence. If, on the other hand, the Court on a consideration of the relevant materials is satisfied that no offence is disclosed, it will be the duty of the Court to interfere with any investigation and to stop the same to prevent any kind of uncalled for and unnecessary harassment to an individual.

It was accordingly evident under the facts of that case that if the offence was disclosed the High Court would not interfere with the investigation into the case and will permit the investigation to be completed. Whether the offence has been disclosed or not must certainly depend on the facts and circumstances of each case. In the instant case in view of the extra judicial confession and other progress and the recovery of cord etc. we are satisfied that some facts have been disclosed and the police in all earnestness would complete the investigation at the earliest and would come to a positive conclusion. It is not thus proper at this stage to interfere Under Article 226 the Constitution.

In re Appaswamy Mudali (supra), was a case on different facts. There an offence u/s 225, IPC was alleged to have been made out against the accused. But in that case also no attempt was made to justify the arrest and u/s 55 as held on page 557), it was held that the prosecution has proved that the constable has authority to arrest the man. This case, we are of the opinion, would not help the Petitioners.

In re S.N. Sharma (supra), was a case under the old Code and the provisions of Section 159 were considered by the Supreme Court and it was held that that was a section meant to give to the Magistrate power of directing investigation in a case where the police decide not to investigate the case under the proviso to Section 157(1) and in that event he was given power to proceed and to hold preliminary enquiry as the circumstances of the case may require. It was further held under para 7 page 789 that the Code (old) gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court Under Article 226 of the Constitution, under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer male fide, the High Court can always issue a writ of Mandamus restraining the police officer from misusing the legal power. In the instant case we are satisfied that it has not been proved that the power of investigation has been exercised by the police officer male fide. Further the police have got unfettered power of investigating all cases where they are satisfied that a cognizable offence has been committed. This case also would not be of any assistance to the Petitioners.

In Re: Eastern Spinning Mills v. Shri Virendra Kumar Sharda (supra), as relied upon by Sri P.C. Srivastava, learned Standing Counsel, it was held under para 4 that except in exceptional cases where non-interference would result in miscarriage of justice, the Court and judicial process should not interfere at the stage of investigation of an offence. In the instant case also it is clear that the investigation is still in progress and it is not such a case where non-interference would result in miscarriage of justice.

It would not be out of place to mention that the Code of Criminal Procedure, 1974 provides detailed machinery about investigation and consequent arrest of the offenders. It may be, that the material collected may not be of any convincing nature and that may be rejected later on by the courts seized with the matter. Even after arrest, it is needless to say, that the Petitioners would have an opportunity to file an application for bail. Even after the conclusion of sessions trial the Petitioners would have a right of appeal.

It appears that the present petition has been filed with a view to obtain an interim stay so that the arrest of the Petitioners may be stayed. In Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and Others, it was held that the remedy Under Article 226 of the Constitution is not meant to short circuit and circumvent the statutory provisions or procedures. It is only where the statutory remedies are entirely ill suited to meet the demands of the external situation, such as where the virus of a statute has been challenged; in that case recourse may be had to Article 226 of the Constitution. However, this remedy should not be availed of just for obtaining interim orders.

It is pertinent to mention the scope and circumstances in which a writ of Mandamus as prayed for by the Petitioners can be issued. By now it is well settled that a writ of Mandamus is issued to compel performance of a positive and plain duty. It is issued on the application of one who has a clear legal right to demand such performance and who has no other adequate remedy. In other words where any public authority or officer is entrusted with an absolute (not discretionary) duty to perform certain functions or duty or to refrain from performing the duty and on demand being duly made, he refuses to perform it, or forbears from performing the duty, any person who has got a legitimate and sufficient interest in the performance of it or for-balance from performance, may apply the High Court for a writ of Mandamus, provided he has no other remedy equally convenient, beneficial and effectual open to him (i.e. by way of appeal or representation or by some other mode). Seeking for-balance from duty requires more cogent and positive proof and allegations and only then the authority concerned can be directed to forebear from performing the duty or doing something against the Petitioners. In the instant case what the Petitioners are seeking is that the Respondents may be directed to forbear from performing their duty of making investigation, collecting evidence and proceeding against the Petitioners. In case the Petitioners would have prayed that the Respondents may be compelled to perform their particular duty which they were refusing to perform, the matter would have been different. The Petitioners, in fact, are seeking the negative aspect of the performance of duty for which we are of the opinion that no case has been made out.

In view of the discussions made above, we are of the opinion that no case for interference has been made out either to stay the investigation in the aforesaid crime or to stay the arrest of the Petitioners. It would not be out of place to mention even Under Article 21 of the Constitution it has been provided that no person shall be deprived of his life and personal liberty except according to the procedure established by law. In the instant case the Code of Criminal Procedure contains such procedure established by law. The investigation is proceeding under that Code and the Petitioners have got sufficient remedy provided therein to safeguard their interest. We are confident that the police would investigate the matter very sincerely and earnestly and would conclude the same at the earliest. In case no positive evidence is collected against the Petitioners, they would not be implicated or sent to jail.

In view of the discussions made herein above, we find no good reasons for interference Under Article 226 of the Constitution. The petition accordingly fails and it is dismissed summarily.