Jai Prakash Nr. Yadav vs State of Bihar

Mridula Mishra, J.—The petitioner has challenged the order dated 16.11.2005 passed in Cr. Rev. No. 76 of 2005 by Session Judge, Jamui affirming the order dated 24.10.2005, passed by the C.J.M., Jamui in Khaira P.S. Case No. 187 of 2005, whereby the applications filed by the Investigating Officer for inclusion of Section 409 of the Indian Penal Code as well as for issuance of warrant of arrest have been allowed. These orders have been challenged by the petitioner on the ground that the orders are without jurisdiction as Cr.P.C. vests no such power to the C.J.M. in exercise of which he can direct the investigating agency to include sections making out cognizable offence, without any material before him, warrant of arrest has been issued for production of accused before the police in aid of investigation, which is illegal and against the provisions of Section 73 of the Cr.P.C. Short facts of the case is that during election of Bihar Assembly 2005, three persons namely Ashok Ram, Batohi Yadav and Bijay Prakash were apprehended on 18.10.2005 as they were found moving with cash, arms and foreign liquor. In this connection Khaira P.S. Case No. 183 of 2005 was registered under sections 123, 132 of the Representation of People Act, 47, Excise Act, 25(1)(a), 26 and 35 of the Arms Act as well as Sections 353, 171 and 201 of the Indian Penal Code. The arrested persons were brought to the police station and kept in Hajat of Khaira police station. Investigation of the case was entrusted to S.I. Mukeshwar Prasad. One of the accused Vijay Prakash is the brother of present petitioner Jai Prakash Narayan Yadav, who was State Minister of Water Resources Department in the Union Cabinet, at the relevant time. Jai Prakash Narayan Yadav is alleged to have come with his supporters and pressurized the Officer-in-charge to release the arrested accused. In conspiracy with the officer-in-charge procured an order for release of accused persons in a case of non-bailable offence on bail bond. The Officer-in-charge, though not competent to release the accused in a non-bailable offence released the accused persons. In this connection Khaira P.S. Case No. 187 of 2005 was registered on 20.10.2005 for the offence under Sections 218, 225(A)(1) and 120B of the Indian Penal Code. On 21.10.2005 accused Vijay Prakash filed Complaint Case No. 880(c) of 2005 in the court of C.J.M. alleging assault and humiliation by the Superintendent of Police, Jamui. Three days thereafter on 24.10.2005 an application was filed before C.J.M., Jamui, by the Investigating Officer of Khaira P.S. Case No. 187 of 2005 with a prayer to add offence u/s 409 of the Indian Penal Code. This application was allowed by the C.J.M. on the same day. The Investigating Officer on 24.10.2005 itself filed a requisition with a prayer to issue warrant of arrest (non-bailable) against F.I.R. named accused persons as well as non F.I.R. named accused persons. This requisition was partially allowed as non-bailable warrant of arrest was issued against F.I.R. named accused persons but so far non F.I.R. named accused persons are concerned, it was rejected.

Petitioner has challenged both the orders dated 24.10.2005 i.e. inclusion of section 409 of the Indian Penal Code as well as issuance of warrant of arrest in Cr. Rev. No. 76 of 2005. This revision application was rejected by order dated 16.11.2005 with a finding that no impropriety or illegality has been committed while passing the impugned orders. It was also held that under the revisional jurisdiction the impugned order cannot be interfered with.

In these circumstances the petitioner has filed the present writ application challenging the impugned orders.

Counsel for the petitioner has submitted that the impugned orders are glaring example of jurisdictional error. Initially the case was instituted under sections 218, 225(A)(1) and 120B of the Indian Penal Code, which are bailable offences. Just after four days of the institution of the case an application was filed by the Investigating Officer for inclusion of Section 409 of the Indian Penal Code in order to bring the case in the category of cognizable offence. The Chief Judicial Magistrate, Jamui without there being any material on record has allowed the prayer of the Investigating Officer although there is no provision under Cr.P.C. for passing such order. Once cognizable offence was ordered to be included, on the same day the warrant of arrest was issued in aid of investigation and for compelling the F.I.R. named accused persons to appear which is not permissible under the provisions of law.

u/s 73 Cr.P.C. conditions have been mentioned for issuance of warrant of arrest i.e. for arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest.

Counsel for the petitioner submits that there was no material before the Chief Judicial Magistrate for his satisfaction that the accused persons named in the FIR are evading arrest. From the impugned order and on perusal of the case records the warrant of arrest has been issued against the named accused persons. The case record does not include the case diary as only on perusal of the case diary some material could have been brought before the court that the accused persons are evading arrest. It has also been submitted that while passing the impugned orders the Chief Judicial Magistrate has not assigned any reason showing his satisfaction for issuance of warrant of arrest or for inclusion of Section 409 of the Indian Penal Code.

Counsel for the petitioner has submitted that since the petitioner was State Minister in the Union Cabinet, a man of reputation and status in the society, just in order to humiliate him and tarnish his image, the prosecution has made all these efforts. The impugned orders passed by the C.J.M. though not in accordance with law, the revisional court failed to exercise its jurisdiction by rejecting the prayer of the petitioner.

Counsel appearing for the State has challenged the maintainability of the writ application under the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, when an alternative remedy is available to the petitioner u/s 482 Cr.P.C. Reliance has been placed on the decision in the case of Mohd. Yunus Vs. Mohd. Mustaqim and Others, , and a Single Bench decision of this Court Ajay Kumar Rana and Others Vs. State of Bihar and Others . and also in the case of State of Bihar and Another Vs. P.P. Sharma, IAS and Another, . It has been submitted by the counsel appearing for the State that in Mohd. Yunus Vs. Mohd. Mustaqim and Others, it has been held by the Supreme Court that the supervisory jurisdiction conferred on the High Courts under Article 227 is limited to seeing that an inferior court or tribunal functions within the limits of its authority, and not to correct an error apparent on the face of the record, much less an error of law. A mere wrong decision without anything more is not enough to attract jurisdiction under this article. The Single Judge in the decision reported in 2002 (2) B.B.C.J. 208 has held that the remedy of writ application under Articles 226 and 227 of the Constitution of India is a remedy of last resort. Hence in a case where remedy under Articles 226 and 227 of the Constitution is available as also the remedy u/s 482 of the Code, a litigant has to necessarily invoke the jurisdiction of this Court u/s 482 of the Code and application under Article 226 and 227 of the Constitution would not be appropriate remedy. Only in a case where it is comprehended that a complete justice cannot be done in exercise of power u/s 482 of the Code, then in such contingency nothing shall prevent the court to exercise the power under Articles 226 and 227 as the power conferred under Articles 226 and 227 cannot be curtailed by any legislation. The question of maintainability raised by the counsel appearing for the State has been objected to and replied by the counsel appearing for the petitioner. It has been submitted that the nomenclature under which petition is filed is not relevant. This Court having jurisdiction of Superintendence over all interior courts can exercise jurisdiction under Article 227 of the Constitution of India in order to do proper justice. Reliance has been placed on the decision in the case of Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, in which it has been held that nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. It has also been submitted by the petitioner''s counsel that the Single Judge decision relied by the State counsel is in teeth of Special Bench judgment in the case of Surendra Singh and Others Vs. The State of Bihar and Others, wherein it has been held that Article 227(1) of the Constitution says that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. The expression "courts" in normal course shall include even the courts of Magistrate and courts of Sessions, unless it is found that by any other provision they have been excluded from the supervisory power of the High Court under Article 227 of the Constitution. So far Mohd. Yunus Vs. Mohd. Mustaqim and Others, is concerned, it has been submitted that this decision has no application in the facts of present case.

Considering the rival contention and the decision referred by the parties, I am of the opinion that this application cannot be dismissed on the point of maintainability and there is no reason for holding that this application is not maintainable.

Now the question arises whether the Chief Judicial Magistrate could have passed an order for inclusion of Section 409 of the Code on an application filed by the Investigating Officer. It is well known that an F.I.R. is not an encyclopedia. The principal object of the first information report is to set the law in motion with a view to setting the investigating process in motion and not for the purpose of bringing all materials and information on paper. If F.I.R. has been instituted initially only with regard to bailable offence and during investigation the Investigating Officer is of the view that the evidence collected prima facie makes out a case of cognizable nature, certainly he can investigate the case from that point of view and file a charge-sheet after completion of the investigation. In several such cases the Investigating Officer has filed requisition for inclusion of the sections making out other offence than mentioned in the F.I.R. The Code has demarcated the area of investigation exclusively to the police. The Police Officer has statutory power to investigate the cases. In this respect if the I.O. was of the view that besides the offence mentioned in the F.I.R. he has to proceed with the investigation in a case of cognizable offence. Certainly he is authorised to file such requisition before the Magistrate and in such case the satisfaction of the Magistrate is not of much relevance. Once the I.O. has filed such application, the Magistrate has no reason to refuse for inclusion of Section 409 or any other cognizable offence. The jurisdiction of the Magistrate for acceptance or rejection comes only after submission of charge-sheet u/s 173 Cr.P.C. and not before. Accordingly I do not find any reason for quashing the order dated 24.10.2005 whereby the application filed by the I.O. was allowed for the inclusion of Section 409 of the Code.

Now the next question is whether the Magistrate could have passed an order for issuance of warrant of arrest against the F.I.R. named accused persons including the petitioner on a requisition filed by the I.O. The counsel appearing for the petitioner has submitted that there was nothing before the Magistrate for his satisfaction that the present case comes within any of the categories in which the jurisdiction u/s 73(1) Cr.P.C. can be exercised. Admittedly the petitioner is not a convict or a proclaimed offender. Simultaneously there was nothing before the Magistrate to show that being an accused of non-bailable offence the petitioner was evading arrest. The impugned order only indicates that the Chief Judicial Magistrate perused the case records and the requisition filed by the I.O. The case record do not include the case diary. The counsel for the petitioner has placed reliance on several decisions in this respect. It has also been submitted that once Section 409 was added by the C.J.M. the nature of the case became cognizable and in case of cognizable offence u/s 41 Cr.P.C. the police has authority to arrest a person without issuance of warrant of arrest from the court. Even if warrant is not issued by the court the police could have arrested the petitioner. The order only indicates that the requisition was filed by the I.O just to humiliate the petitioner who was the Slate Minister in the Union Cabinet and also for issuance of further process under Sections 82 and 83 Cr.P.C. The order of the Magis-trate also does not show his satisfaction as no reason has been assigned which is necessary for passing any judicial order. Reliance has been placed on a decision in the case of State of Orissa Vs. Dhaniram Luhar, wherein it has been held that "Reason introduces clarity in an order. Reason is the heartbeat of every conclusion, and without the same it becomes lifeless. Reason substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in'' adjudging the validity of the decision." Counsel for the petitioner has also placed reliance in the case of M.C. Abraham and Another, A.K. Dhote and J.F. Salve and Another Vs. State of Maharashtra and Others, .

In reply to the submissions made by the petitioner''s counsel, the counsel for the State has submitted that while issuing warrant of arrest, though in the order it has not been mentioned in so many words regarding the case diary but the word perusal of case record is mentioned, certainly the case diary was produced before the Magistrate which indicated that in order to arrest the petitioner several places were raided but the police was not in a position to arrest him. The petitioner was holding a high post. He had full knowledge that his name is included as an accused in a case, but instead of co-operating with the investigation he was evading his arrest. Under the circumstances, the case of the petitioner is fully covered within the category of an accused of a cognizable offence evading arrest, as provided u/s 73 Cr.P.C. The Magistrate has rightly passed an order for issuance of warrant of arrest against the petitioner. It has also been submitted that it cannot be disputed that Section 41 gives ample power to the I.O. to arrest an accused of cognizable offence even without a warrant, but in a given circumstance considering the high profile of the petitioner it become essential to get the warrant of arrest issued against the petitioner for his arrest.

Considering the submission of the parties I find that Section 41 gives an ample power to an I.O. for arresting the accused of cognizable offence and so far Section 73 Cr.P.C. is concerned, the warrant can be issued by the Magistrate, if an accused of cognizable offence is evading arrest. In that respect the satisfaction of the Magistrate in seisin is supreme. He can exercise this jurisdiction on his satisfaction considering the material before him. So far the present case is concerned in the impugned order dated 24.10.2005, it is indicated that on perusal of the case record and the requisition filed by the I.O. the warrant of arrest is being issued against F.I.R. named accused persons, The materials placed before the Magistrate has not been disclosed in so many words, but it transpires that he was satisfied that the F.I.R. named accused who are accused of cognizable offence are evading arrest. It is the Magistrate who can pass an order for issuance of warrant of arrest on his satisfaction and in the circumstances when the F.I.R. named accused of cognizable offence is evading arrest, certainly he has got jurisdiction as provided u/s 73 Cr.P.C.

Counsel for the petitioner has placed reliance on decisions reported in M.C. Abraham and Another, A.K. Dhote and J.F. Salve and Another Vs. State of Maharashtra and Others, and Joginder Kumar Vs. State of U.P. and others, . In 1994(4) S.C.C. 260.. Third report of the National Police Commission, has been referred as guideline for arrest during investigation of cognizable offence.

Conditions mentioned in para 20 are:--

(i) The case involves a grave offence like murder, dacoity, robbery, rape etc. and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.

(ii) The accused is likely to abscond and evade the processes of law.

(iii) The accused is given to violent behaviour and is likely to commit further offence unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.

Substance of these two decisions is that existence of power to arrest is one thing and the satisfaction of the exercise of it is quite another.

Further it has been held in Joginder Kumar Vs. State of U.P. and others, that "The above guidelines are merely the incidents of personal liberty 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 right 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 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 so".

The case of the present petitioner can be decided on the same guidelines. The petitioner is a respectable person of the society. He was holding an important post in the Union Cabinet as such it is not expected of him that he will either abscond, repeat same offence or will not cooperate with the investigation, he cannot be categorised as a habitual offender or terror for the society. Even if he is an accused of cognizable offence it is not essential that just for the sake of arresting he should be arrested. Without quashing the orders, it is directed that it will be desirable that the l.O. will issue notice to the petitioner, fixing a date to attend the police station. The petitioner will co-operate with the investigation of the case. He will not leave the territory of the police station without the permission of the Investigating Officer tilt submission of charge-sheet. After conclusion of the investigation the police will submit charge-sheet and considering the charge-sheet the court will proceed in accordance with law. In case petttioner fails to co-operate in investigation, the warrant of arrest can be executed against him. Accordingly this application is disposed of with the aforesaid directions/observations.