Prasant Gaur vs State of U.P.

Both these cases have been referred to a Full Bench. In both the cases a first information report was lodged with the police against the applicant in which it was alleged that the applicant had committed a cognizable offence and the police was investigating the matter.

In both these cases the applicant has not yet been arrested and made application u/s 482 of the Criminal Procedure Code, 1973 (hereinafter to be referred to as '' the Code'') and prayed that the first information report be quashed. It is further prayed that the arrest of the Petitioner be stayed (obviously during the pendency of the application).

When these applications came up for hearing, on the basis of a Division Bench decision of this Court in the case of Puttan Singh v. State 1987 AWC 404 it was urged by the learned Counsel for the State that the application was not maintainable and arrest could not be stayed.

Mr. Justice S.I. Jafri before whom these cases came up, has referred the cases to a larger Bench under the proviso (b) to Sub-rule (ix) of Rule 2, Chapter V, of the Rules of Court, 1952. He directed that the papers be placed before the Hon''ble the Acting Chief Justice for constituting a Bench consisting of not less than five Judges for answering the questions:

(i) Whether u/s 482 Code of Criminal Procedure, the High Court has inherent powers to interfere with the investigation by the Police?

(ii) Whether the High Court has powers to stay arrest during investigation?

(iii) Whether the decision reported in 1987 AWC 404 lays down a correct proposition of Law?

In the case of Puttan Singh (supra), Mr. Justice B.N. Katju and Mr. Justice B.L. Yadav delivered separate but concurring judgments. The prayer made in the application u/s 482 of the Code for staying the arrest of the applicant during the pendency of the application u/s 482 of the Code was rejected.

Mr. Justice Katju relying upon the judgment of the Privy Council in the case of AIR 1945 18 (Privy Council) and a number of other decisions of the Supreme Court in which the decision of the Privy Council in Khawaja Nazir Ahmad''s case (supra) has; been approved of, and followed in, held that where a first information report disclosed, prima facie, the commission of a cognizable offence, the Court would not interfere with the investigation by the Police. It was held that the arrest was a step in the investigation of a crime by the Police and as such it could not be stayed.

Mr. Justice Yadav agreed with Mr. Justice Katju, but he observed that he wanted to add few words. Having quoted Section 482 of the Code (which is in identical term with Section 561-A of the Code of Criminal Procedure, 1898)(hereinafter to be referred to as ''the Code of 1898''), Mr. Justice Yadav held that the words" or otherwise to secure the ends of justice" to be found in the latter part of Section 482 of the Code had to be read Eijusdem Generis with the earlier part of the section. He, therefore, confined the powers of the High Court, u/s 482 of the Code, to cases where an order under the Code had been made or any process of Court had been issued.

When this reference came up for bearing before us, the learned Advocate General, who, at the request of the Court, has appeared in this case, very seriously attacked the referring order and contended that the reference was incompetent.

Normally, in this judgment, we would have first dealt with the objections raised by the learned Advocate General which were, in a sense, preliminary objections to maintainability of the reference, but we propose to deal with them at the end of this judgment because of certain unusual features in this case.

In the Code of 1898, as it was originally enacted, Section 561-A was not there. Section 561-A was introduced in the Code of 1898 by the Code of Criminal Procedure (Amendment) Act, 1923. Prior to the amendent, only the Presidency High Courts had, within the limits of the Presidency Towns, a power to issue writs including the writ of Habeas Corpus. The Amendment Act conferred on all High Courts in India the authority to issue writs in the nature of Habeas Corpus u/s 491 of the Code of 1898 and also introduced Section 561-A in the Code of 1898.

When the amendment Bill was on the anvil, the Bill did not include the words" or otherwise to secure the ends of justice". Before the Bill became the law, the Allahabad High Court in the case of C. Dunn v. King Emperor AIR 1922 All. 107 had held that it had no power under the Code to expunge remarks in a judgment delivered by a Magistrate against a person who was not a party or a witness to the proceedings. It was held that the High Court could not expunge remarks because an application to expunge a remark would not come either under the revisional or the appellate jurisdiction of the High Court. The Select Committee reported that--

Clause 152.--

We have slightly elaborated the provisions of this clause. We understand that a High Court has recently held that it had no power to direct the ex-punction of objectionable matter from a record. We think it desirable that it should be made clear that this clause is intended to meet such a case.

The Select Committee had given its reasons for adding these words to the Bill which eventually became Section 561-A of the Code of 1898.

It is significant that the Legislature did not say that the High Court would have power to expunge remarks in a judgment of a sub-ordinate Court u/s 561 -A, but granted powers to the High Court in much wider language, under which not only such remarks could be expunged, but many other things done. The Legislature was aware that all possible contingencies in which the High Court''s interference was required, could not be exhaustively enumerated.

The law declared by the Privy Council in Khwaja Nazir Ahmad''s case (supra) was binding on all Courts in India and continues to be binding. The learned Advocate General has rightly pointed out that u/s 212 of the Government of India Act, 1935, the law declared by the Federal Court and by any judgment of the Privy Council be recognised as binding and shall be followed by all Courts in British India. Similarly, Article 141 of the Constitution of India provides that the law declared by the Supreme Court of India shall be binding on all Courts within the territory of India. Thus, the decisions of the Privy Council unless overruled by the Supreme Court, and of the Supreme Court, are clearly binding on all the Courts.

At this stage it is necessary to clarify that the law declared in any judgment of the Privy Council is a law within the meaning of Article 372 of the Constitution of India and continues in force. This very question arose before the Supreme Court in the case of Builders Supply Corporation Vs. The Union of India (UOI) Represented by the Commissioner of Income Tax, West Bengal and Others, . It was observed as follows-

This question can no longer be in doubt because of the decision of this Court in the Director of Rationing and Distribution Vs. The Corporation of Calcutta and Others, . In that case, this Court was called upon to consider the question as to whether the decision of the Privy Council in Province of Bombay v. Municipal Corporation of the City of Bombay 73 Ind. App. 271 : AIR 1947 PC 34, which had laid down a certain rule of interpretation could be said to be law in force within the meaning of Article 372(1). The majority judgment indicates that the rule of interpretation of statutes enunciated by the Privy Council amounted to law in force and as such, it continued to be in force even after the Constitution was adopted, with the result that according to the majority opinion, the rule of interpretation of statutes that the State is not bound by a statute unless it is so provided in express terms or by necessary implication, is still good law.

In the case of Kishan Chand v. Ram Babu 1964 AWR 191 : AIR 1965 All 55 (Full Bench), we find the following statement:

The decision of the Privy Council was a declaration of law within the meaning of Section 212 of the Government of India Act and was binding upon all courts in India as was pointed out by the Supreme Court in Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, . It was the law when the Constitution came into force with effect from 26-1-1950. Under Article 225 of the Constitution the law administered in any High Court on 25-1-1950 continued to be the law to be administered by it subject to other provisions of the Constitution and of any law of the appropriate legislature made by virtue of powers conferred upon It by the Constitution. Under Article 372(1) also, the law in force on 25-1-1950 continued in force until altered or repealed or amended by a competent legislature or authority. The result is that even after the Constitution the law declared by the Judicial Committee in the case of AIR 1949 319 (Privy Council) continues to be the law. In Radharani Das Vs. Sisir Kumar and Others, a decision of the Judicial Committee was held binding on High Courts until the Supreme Court ruled otherwise. In State of Bombay Vs. Chhaganlal Gangaram Lavar, Chagla, C.J. speaking for a Full Bench observed that a decision of the Privy Council continues to bind High Court even after 25-1-1950 so long as the Supreme Court does not lay down a different law. Nothing to the contrary was said by me in Shri Om Prakash Gupta Vs. The United Provinces, .

The Privy Council considered the scope of Section 561-A of the Code of 1898 in the case of Khwaja Nazir Ahmad (supra). In this case it was observed as follows:

In their Lordships'' opinion however, the more serious aspect of the case is to be found in the resultant interference by the Court with the duties of the police. 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 masters which are within their province and into which the law imposes upon them the duty of enquiry. 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 u/s 491, Code of Criminal Procedure, to give directions in the nature of habeas corpus. In such a case as the present, however, the Court''s functions begin when a charge is preferred before it and not until then. It has sometimes been thought that Section 561-A has given increased powers to the Court which it did not possess before that Section was enacted. 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 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 and for this reason Newsam, J. may well have decided rightly in M.S.S.T. Chiddambaram v. Shanmugam Pillai AIR 1938 Mad. 129. But that is not this case.

In the present case the police have under Sections 154 and 156, Code of Criminal Procedure, a statutory right to investigate a cognizable offence without requiring the sanction of the Court, and to that extent the case resembles Chhatrapat Singh Dugar v. Kharag Singh Lachmiram 44 Cal. 535 in which as the High Court has pointed out their Lordships Board expressed the view that to dismiss an application on the ground that it would be an abuse of the powers of the Court might be to act on treacherous grounds. Of course, in the present case as in the petition brought by Mr. Gauba no prosecution is possible unless the necessary sanction u/s 197, Code of Criminal Procedure, has first been obtained. But that stage like the stage at which the Court may legitimately intervene has not, in their Lordships'' opinion, yet been reached. The question so far is one of investigation, not prosecution. In accordance with their view, their Lordships will humbly advise His Majesty that the appeal would be allowed the decree and order of the High Court quashed and the investigation permitted to proceed.

The scope of Section 561-A of the Code of 1898 came up for consideration before the Supreme Court in the case of R.P. Kapur v. State of Punjab AIR 1960 SC 856. In paragraph 6 of the judgment, their Lordships of the Supreme Court observed as follows:

(6) Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent power of the High Court u/s 561-A of the Code. The said section saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. In the present case the magistrate before whom the police report has been filed u/s 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of Appellant that his request for the quashing of the proceeding is not at the present stage covered by any specific provisions of the Code. It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceedings in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appear that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may for instance furnish cases under this category. Cases may also where the allegations in the First Information Report or the complaint even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such case, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category, the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases, it is important to bear in mind the distinction between a case where there is no legal evidence where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction u/s 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court''s inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court u/s 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (vide: In Re: Shripad G. Chandavarkar, , Jagat Chandra Majumdar v. Queen Empress ILR Cal. 786 , Dr. Shankar Singh Ganda Singh Vs. State of Punjab, , Nripendra Bhusan Ray Vs. Gobinda Bandhu Majumdar, and Ramanathan Chettiar Vs. K. Sivarama Subramania Aiyar, .

We now come to another decision in the case of State of West Bengal Vs. S.N. Basak, in that case the High Court had quashed the investigation by the police on the basis of a First Information Report lodged with the police. The reasons for doing so were mentioned in the High Court''s judgment. The High Court had said-

In our view, the statutory power of investigation given to the police under Chapter XIV is not available in respect of an offence triable under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949, and that being so, the investigation concerned is without jurisdiction. In so saying, we are conscious of the observations of their Lordships of the Privy Council in AIR 1945 18 (Privy Council) .

Their Lordships of the Supreme Court allowed the appeal filed by the State of West Bengal and observed as follows in paragraphs 3:

(3) At the time the Respondent filed the petition in the High Court only a written report was made to the police by the Sub-Inspector of Police Enforcement Branch and on the basis of that report a First Information Report was recorded by the Officer-in-charge of the Police Station and investigation had started. There was no case pending at the time excepting that the Respondent had appeared before the Court, had surrendered and had been admitted to bail. The powers of investigation into cognizable offences are contained in Chapter XIV of the Code of Criminal Procedure. Section 154 which is in that Chapter deals with information in cognizable offences and Section 156 with investigation into such offences and under these sections the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by the exercise of power u/s 439 or under the inherent power of the Court u/s 561-A of the Criminal Procedure Code. As to the powers of the Judiciary in regard to statutory right of the police to investigate, the Privy Council in AIR 1945 18 (Privy Council) , observed as follows:

(the observations of the Privy Council has already been quoted in this judgment at pages 9 and 10)(page 832 of 1988 AWC-Editor) with this interpretation, which has been put on the statutory duties and powers of the police and of the powers of the Court, we are in accord. The High Court was in error therefore in interfering with the powers of the police in investigating into the offence which was alleged in the information sent to the Officer-in-charge of the police station.

Another case that may be usefully referred to is a decision of the Supreme Court in the case of S.N. Sharma v. Bipen Kumar Tiwari AIR 1978 SC 786. In this case, the Supreme Court was concerned with the powers of a Magistrate u/s 159 of the Code of 1898. They held that the Section does not empower a Magistrate to stop a police investgation. They went on to observe-

The scheme of these sections, thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case. The power of the police to investigate has been made independent of any control by the Magistrate.

Immediately thereafter the Supreme Court observed-

The High Court of Lahore in Crown v. Mohammad Sadiq Niaz AIR 1949 Lah. 204 and the High Court of Patna in Pancham Singh Vs. The State, to the same effect as held by us above. The reasons given were different. Both the Courts based their decisions primarily on the view expressed by the Privy Council in AIR 1945 18 (Privy Council) . That case, however, was not quite to the point that has come up for decision before us. The Privy Council was concerned with the question whether the High Court had power u/s 561-A of the Code of Criminal Procedure to quash proceedings being taken by the police in pursuance of first information reports made to the police. However, the Privy Council made some remarks which have been relied upon by the High Courts and are to the following effect:

(Remarks of the Privy Council already quoted at page 9 of the judgment)(page 832 of 1988 AWC-Editor).

This interpretation, to some extent, supports the view that the scheme of the Criminal Procedure Code is that the power of the police to investigate a cognizable offence is not to be interfered with by the judiciary. Their Lordships of the Privy Council were, of course, concerned only with the powers of the High Court u/s 561-A, Code of Criminal Procedure, while we have to interpret Section 159 of the Code which defines the power of a Magistrate which he can exercise on receiving a report from the police of the cognizable offence u/s 157 of the Code. In our opinion, Section 159 was really intended to give a limited power to the Magistrate to ensure that the police investigate all cognizable offences and do not refuse to do so by abusing the right granted for certain limited cases of not proceeding with the investigation of the offence.

Another passage from the judgment is also relevant for our present purpose and for another purpose, which will appear a little lateron, is as under:

Counsel appearing on behalf of the Appellant urged that such an interpretation is likely to be very prejudicial particularly to Officers of the judiciary who have to deal with cases brought up by the police and frequently give decisions which the police dislike. In such cases, the police may engineer a false report of a cognizable offence against the Judicial Officer and may then harass him by carrying on a prolonged investigation of the offence made out by the report. It appears to us that, though the Code of Criminal Procedure 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 malafide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in Section 159 of the Code.

In the case of Hazari Lal Gupta Vs. Rameshwar Prasad and Another, etc., , the Supreme Court held that-

The inherent power of the High Court u/s 561-A of the Criminal Procedure Code has been considered by this Court in R.P. Kapur Vs. The State of Punjab, and State of West Bengal Vs. S.N. Basak, . In exercising jurisdiction u/s 561-A of the Criminal Procedure Code the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily enquire as to whether the evidence is ''reliable or not''. Where again, investigation into the circumstances of an alleged cognizable offence is carried on under the provisions of the Criminal Procedure Code the High Court does not interfere with such investigation because it would then be impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code.

When the Code came into force, the Legislature had before them the decision of the Privy Council in Khwaza Nazir Ahmad''s case (supra) as also the decisions of the Supreme Court, some of which had been noticed in this judgment on the interpretation of Section 561-A of the Code of 1898. They made no change in the language when Section 482 of the Code was enacted in identical language with the corresponding Section 561-A of the Code of 1898.

Mr. Advocate General has correctly pointed out that the Legislature must be deemed to be aware of the declaration of law made by the highest Court of the land and when it did not alter the law while enacting the Code, it must be deemed to have accepted that interpretation. In this connection he refers to a decision of the Supreme Court in the case of Sakal Deep Sahai Srivastava Vs. Union of India (UOI) and Another, , which was concerned with the question as to whether Article 102 or Article 120 of the Limitation Act, 1908, applied to a case where a claim for arrears of salary was made. In paragraph 7 of the judgment, their Lordships observed:

But, our difficulty is that the question appears to us to be no longer open for consideration afresh by us, or, at any rate, it is not advisable to review the authorities of this Court, after such a lapse of time when despite the view taken by this Court that Article 102 of the Limitation Act of 1908 was applicable to such cases, the Limitation Act of 1963 had been passed repeating the law, contained in Articles 102 and 120 of the Limitation Act of 1908, in identical terms without any modification. The Legislature must be presumed to be cognizant of the view of this Court that a claim of the nature before us, for arrears of salary falls within the purview of Article 102 of the Limitation Act of 1908. If Parliament, which is deemed to be aware of the declarations of law by this Court, did not alter the law, it must be deemed to have accepted the interpretation of this Court even though the correctness of it may be open to doubt. If doubt had arisen, it was for the Legislature to clear these doubts. When the Legislature has not done so, despite the repeal of the Limitation Act of 1908, and the enactment of the Limitation Act of 1963 after the decisions of this Court, embodying a possibly questionable view, we think it is expedient and proper to over-rule the submission made on behalf of the Appellant that the correctness of the view adopted by this Court in its decisions on the question so far should be re-examined by a larger Bench.

We may take it, therefore, that the decision of the Privy Council and the Supreme Court had, by the year 1973, become part of the law of the land and it was this law which was granted legislative approval when Section 482 of the Code came into force.

We may now refer to some later decisions of the Supreme Court to see as to whether any subsequent decision of the Supreme Court has made any change in the law. We may refer to a decision of the Supreme Court in the case of Jehan Singh Vs. Delhi Administration, . In that case the High Court had dismissed an application u/s 561-A of the Code of 1898 at the investigation stage on the ground that in exercise of its jurisdiction u/s 561-A of the Code of 1898, the High Court could not embark on an enquiry whether the evidence in the case was reliable or not. In paragraphs 15 and 16 of the judgment, the Supreme Court observed as follows:

A plain reading of the First Information Report would show that the answer to this question must be in the negative. It is alleged therein that the bus (DLP 3867) belonged to Indraj and Sukhlal of Chirag Delhi and was at the material time in their possession through their servants, Munshi Ram Driver, Mohinder Singh Conductor and Sher Singh Helper, and that it was removed in the teeth of opposition from them without their consent, from their custody or possession by four persons including Jahan Singh and R.K. Pathak, who all entered into the vehicle which was then driven by one of them who was of strong built, medium height, dark complexion etc., to Scindia House. In substance the allegation was that the wrongful removal of the bus was the concerted action of the Appellant Jahan Singh and R.K. Pathak and their un-named companions. Prima facie, the allegations in the First Information Report, if taken as correct, did disclose the commission of a cognizable offence by the Appellant and his companions. May be that further evidence to be collected by the police in the course of investigation including the hire-purchase agreement, partnership deed and the receipt etc. could confirm or falsify the allegations made in the First Information Report. But, the High Court, at this stage, as was pointed out by this Court in R.P. Kapur Vs. The State of Punjab, could not, in the exercise of its inherent jurisdiction, appraise that evidence or enquire as to whether it was reliable or not.

Might be, after collecting all the evidence, the police would itself submit a charge sheet as laid before the Magistrate u/s 173, Criminal Procedure Code then all these matters will have to be considered by the Magistrate after taking cognizance of the case. We cannot, at this stage, possibly indicate what should be done in purely hypothetical situations which may or may not arise in this case.

The matter was again examined in the case of Kurukshetra University and Another Vs. State of Haryana and Another, . In paragraph 2 of the judgment, the Supreme Court observed as follows:

It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers u/s 482 of the Code of Criminal Procedure, it could quash a First Information Report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realized that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.

We now come to the decision of the Supreme Court in the case of State of Bihar and Another Vs. J.A.C. Saldanha and Others, . The relative field of the functions and duties of the police and the Criminal Court was spelt out in paragraph 25 of the judgment, which is reproduced below:

There is a clear cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department, the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence u/s 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provisions contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. This has been recognised way back in King Emperor v. Khwaja Nazir Ahmad (1944) 71 Ind App 203 at p. 213, where the Privy Council observed as under:

(Quotation has already been reproduced at page 9 of this judgment). (page 832 of 1988 AWC -Editor)

In paragraph 26 of the judgment, the Supreme Court observed as under:

This view of the Judicial Committee clearly demarcates the functions of the executive and the judiciary in the field of detection of crime and its subsequent trial and it would appear that the power of the police to investigate into a cognizable offence is ordinarily not to be interfered with by the judiciary.

In State of West Bengal and Others Vs. Swapan Kumar Guha and Others, , the High Court had, in proceedings under Article 226 of the Constitution of India, issued a mandamus directing the State Government and its concerned officers to forthwith recall, cancel and withdraw the First Information Report and all proceedings taken on the basis of these since the searches, seizures and arrests made in pursuance of the said First Information Report are, according to the High Court, illegal and without jurisdiction. The Hon''ble Mr. Justice Y.V. Chandrachud, C.J., in paragraph 20 of the judgment after quoting an extract from the decision of the Khwaja Nazir Ahmad case (supra), said that-

If anything, therefore, the judgment shows that an investigation can be quashed if no cognizable offence is disclosed by the FIR. It shall also have been noticed, which is sometimes overlooked, that the Privy Council took care to qualify its statement of the law by saying that the judiciary should not interfere with the police in matters which are within their province. It is surely not within the province of the police to investigate into a Report which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases.

Then in paragraph 21 of the judgment, it was observed that-

The position which emerges from these decisions and the other decisions which are discussed by Brother A.N. Sen is that the condition precedent to the commencement of investigation u/s 157 of the Code is that the FIR must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation u/s 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the FIR prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on and the rule in Khwaja Nazir Ahmad will apply. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. On the other hand, if the FIR does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received.

In paragraph 22 of the judgment, it was observed as follows:

There is no such thing like unfettered discretion in the realm of powers defined by statutes and indeed, unlimited discretion in that sphere can become a ruthless destroyer of personal freedom. The power to investigate into cognizable offences must, therefore, be exercised strictly on the condition on which it is granted by the Code. I may, in this behalf, usefully draw attention to the warning uttered by Mathew, J. in his majority judgment in Prabhu Dayal Deorah Vs. The District Magistrate, Kamrup and Others, to the following effect:

We say, and we think it is necessary to repeat that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. Observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law.

In paragraph 23 of the judgment, it was observed that-

For these reasons, which frankly, are no different from those given by my learned Brother A.N. Sen, I am of the opinion that the investigation which has been commenced upon the first information report is without jurisdiction and must, therefore, be quashed. I do accordingly and direct that no further investigation shall take place in pursuance or on the basis of the FIR dated December 13, 1980 lodged by the Commercial Tax Officer, Bureau of Investigation, with the Deputy Superintendent of Police, Bureau of Investigation, Madan Street, Calcutta.

In paragraph 64 Hon''ble A.N. Sen, J., observed as under:

In my opinion, the legal position is well settled. The legal position appears to be that if an offence is disclosed, the Court 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. The observations of the Judicial Committee and the observations of this Court in the various decisions which I have earlier quoted, make this position abundantly clear. The propositions enunciated by the Judicial Committee and this Court in the various decisions which I have earlier noted, are based on sound principles of justice. Once an offence is disclosed, an investigation into the offence must necessarily follow in the interest of justice. If, however, no offence is disclosed, an investigation cannot be permitted, as any investigation, in the absence of any offence being disclosed, will result in unnecessary harassment to a party, whose liberty and property may be put to jeopardy for nothing. The liberty and property of any individual are sacred and sacrosanct and the Court zealously guards them and protects them. An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed. When an offence is disclosed, a proper investigation in the interest of justice becomes necessary to collect materials for establishing the offence, and for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. 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 interferers 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 this principle that the Court normally does not interfere with the investigation of a case where an offence has been disclosed. The decisions on which Mr. Chatterjee has relied are based on this sound principle, and in all these cases, an offence had been disclosed. Relying on the well settled and sound principle that the Court should not interfere with an investigation into an offence at the stage of investigation and should allow the investigation to be completed, this Court bad made the observations in the said decisions which I have earlier quoted reiterating and reaffirming the sound principles of justice. The decisions relied on by Mr. Chatterjee, do not lay down, as it cannot possibly be laid down as a broad proposition of law that an investigation must necessarily be permitted to continue and will not be prevented by the Court at the stage of investigation, even if no offence is disclosed. While adverting to this specific question as to whether an investigation can go on even if no offence is disclosed, the Judicial Committee in the case of AIR 1945 18 (Privy Council) and this Court in R.P. Kapur Vs. The State of Punjab, , Jehan Singh Vs. Delhi Administration, , S.N. Sharma Vs. Bipen Kumar Tiwari and Others, have clearly laid down that no investigation can be permitted and have made the observations which I have earlier quoted and which were relied on by Mr. Sen. As I have earlier observed this proposition is not only based on sound logic but is also based on fundamental principles of justice, as a person against whom no offence is disclosed, cannot be put to any harassment by the process of investigation which is likely to put his personal liberty and also property which are considered sacred and sacrosanct into peril and jeopardy.

In paragraph 20 of the judgment of the Chief Justice Chandrachud, there is reproduced an extract from the judgment of the Privy Council in Khwaja Nazir Ahmad''s case (supra). It should be remembered that Khwaja Nazir Ahmad''s case (supra) was decided by the Lahore High Court and arose out of an application u/s 561-A of the Code of 1898. The Privy Council''s remarks were in the context of the High Coust''s power to interfere with the investigation by the police into a cognizable offence. The limits of that power were circumscribed by their Lordships of the Privy Council, but there is an indication, as pointed out by Chief Justice Chandrachud that in certain very special circumstances, when the First Information Report not disclosing any cognizable offence, it was possible for the High Court to interfere on the ground that the police had no jurisdiction to investigate into the offence. If the powers of the High Court would have been totally excluded in proceedings u/s 561-A of the Code of 1898, their Lordships of the Privy Council could have easily said so.

A case from the West Bengal went upto the Supreme Court reported in State of West Bengal and Others Vs. Sampat Lal and Others, . In this case the High Court had, on a complaint made to it in as matter which was being investigated by the police, directed that the police investigation be taken over by the Deputy Inspector General, Central Investigation Bureau. This order was questioned by the State of West Bengal before the Supreme Court. The appeal was allowed. After quoting the decisions of the Supreme Court in the case of Bhopat Singh Kishan Singh Vs. State of Maharashtra, , S.N. Sharma Vs. Bipen Kumar Tiwari and Others, and State of Bihar and Another Vs. J.A.C. Saldanha and Others, the Court observed that:-

It is sufficient to indicate that there is residuary jurisdiction left in the Court to give directions to the investigating agency when it is satisfied that the requirements of the law are not being complied with and investigation is not being conducted properly or with due haste and promptitude. The Court has to be alive to the fact that the Scheme of the law is that the investigation has been entrusted to the police and it is ordinarily not subject to the normal supervisory power of the Court. We are inclined, on the facts of the case as placed before us, to take the view that the materials placed before the Court did not justify an exception to be made to the rule indicated by this Court and the appointment of the Special Officer was not called for at this stage.

It must be remembered that the case had been decided by the High Court under Article 226 of the Constitution of India and not u/s 482 of the Code.

The learned Advocate General has argued that Section 561-A of the Code of 1898, as inserted by the Act No. XVIII of 1923, which now corresponds to Section 482 of the Code, merely preserved the inherent powers of the Court. He submits that only the Presidency High Courts possessed inherent powers which they had inherited from the Supreme Court, and was not possessed by the other High Courts. He urges that Section 561-A of the Code of 1898 did not confer any new power on the High Court. He points out that the Allahabad High Court as well as the High Courts other than those in the Presidency Towns, had their Letters Patent issued under the Indian High Courts Act, 1861. The Letters Patent of the Allahabad High Court are dated 17/3/1866. It did not make any reference to inherent powers of the High Court in criminal matters.

In this connection, the learned Advocate General points out that under the United Provinces High Courts'' (Amalgamation) Order, 1948, (in short ''the order'') published in the Gazette of India, Extraordinary, dated 19/7/1948, a new High Court by the name of the High Court of Judicature at Allahabad was created by Clause 3 of the said Order.

Clause 3 of the Order provides as follows:

As from the appointed day, the High Court in Allahabad and the Chief Court in Oudh shall be amalgamated and shall constitute one High Court by the name of the High Court of Judicature at Allahabad (hereinafter referred to as "the new High Court").

From the fact that a new amalgamated High Court came into being, Mr. Shanti Swarup Bhatnagar, learned Advocate General, argues that even if it be held that the High Court of Judicature at Allahabad before amalgamation possessed inherent powers under the Letters Patent, 1866, the same came to an end when the Order came into force as by Clause 17 of the Order the Letters Patent dated 17/3/1966 establishing the High Court of Judicature for North Western Province, ceased to have effect.

He then points out that the Order did not confer any inherent power. In this connection, Clause 7 of the Order is relevant, which provides, under Sub-clause (2), that the new High Court shall have, in respect of the whole of the United Provinces, all such original, appellate and other jurisdiction as, under the law in force immediately before the appointed day, is exercisable in respect of any part of that Province by either of the existing High Courts. Sub-Clause (1) of Clause 7 of the Order, therefore, enables the new High Court to have all jurisdiction which any of the existing High Courts possessed. If at all there was an inherent power in the High Court, it was continued by virtue of Clause 7, Sub-clause (1), of the Order.

The question as to whether the High Courts in India could grant bail in a case in which after conviction leave to appeal to the Privy Council has been granted by the Privy Council pending the decision of the appeal, came up before the Privy Council in the case of AIR 1945 94 (Privy Council) . Their Lordships of the Privy Council pointed out that the Code of 1898 had not granted any new power to the High Court to grant bail in such circumstance. Then they went on to consider whether such powers can be spelt out under the inherent powers of the High Court. Their Lordships observed:

If such a power exists in a High Court it can only be as a power inherent in a High Court, because it is a power which is necessary to secure the ends of justice. It must be observed that, as decided by Hallett, J., after a careful and exhaustive review of the authorities, that no such inherent power exists in the High Court of Justice in this country : (1944) 1 KB 532 Ex-parte Biyth. In a case (reported only in the "Weekly Notes") Branson, J. appears to have made an order granting bail to a prisoner (in this; country) who had been sentenced to six months'' imprisonment in Cyprus but had been given leave by His Majesty in Council to Appeal: (1932) W.N. 272 Sutton v. Reg. The order, however, seems to have been made with the consent of the Secretaries of State for Home Affairs and for the Colonies and cannot be relied upon as any authority for the view that a Judge of the High Court has any inherent power to grant bail in the circumstances indicated. When such power exists it is statutory. It is perhaps conceivable that such an inherent power might exist in the High Courts in India, but historically it would seem unlikely in view of the provision found in the early Charters, which confer powers on the Judges in India by reference to the powers of the Justices of the King''s Bench in England in terms such as the following:

and to have such jurisdiction and authority as Our Justices of Our Court of King''s Bench have and may lawfully exercise within that part of Great Britain called England, as far as circumstances will admit.

Section 561-A of the Code confers no powers. It merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice. But other difficulties exist in the way of establishing that any such inherent power exists in a High Court.

In reply to this argument, the learned Counsel for the applicant has referred to a decision of the Supreme Court in the case of the The Newabganj Sugar Mills Co. Ltd. and Others Vs. The Union of India (UOI) and Others, in which the Supreme Court observed that-

The difficulty we face here cannot force us to abandon the inherent powers of the Court to do. The inherent power has its roots in necessity and its breadth is co-extensive with the necessity". (Theoretical Basis of Inherent Powers Doctrine-Text material prepared by Jim. R. Carrigan-Publication of National College of the State Judiciary, USA). Certain we cannot go against any statutory prescription Had India had a developed system of class actions or popular organisation taking up public interest litigation, we could have hoped for relief otherwise than by this Court''s order.

The Criminal Procedure Code (Amendment) Act, 1923, incorporated Section 561-A providing that nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or other vise to secure the ends of justice. It was assumed by the Indian Legislature that the High Court possessed inherent powers and they made it clear that the codification of law did not affect that power. The Privy Council in the case of Lala Jairam Das (supra) did not positively ruled out the existence of an inherent power though it did imply that possibly the High Court did not possess such powers. The Supreme Court has also not said anything in its numerous judgments that the High Court did not possess that power.

By Article 215 of the Constitution of India it was provided that the High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself,

We have a decision of the Supreme Court in the case of Ratilal Bhanji Mithani v. Asstt. Collector of Customs, Bombay AIR 1967 SC 1639 a direct decision on the question whether the High Court possessed inherent powers in criminal matters. A bail order had been cancelled by the High Court when the High Court cancelled the bail of the accused person under its inherent power. The question raised before the Supreme Court squarely was as to whether the High Court had inherent power to cancel the bail order. The Supreme Court in paragraphs 9 and 10 of the judgment observed as under:

(9) Now the question is whether the inherent power of the High Court is conferred by or has the sanction of enacted law. From its very inception, the High Court has possessed and enjoyed its inherent powers including the power to prevent the abuse of the process of any court within its jurisdiction and to secure the ends of justice. These powers inhere in the High Court and spring from its very nature and constitution as a court of superior jurisdiction. All the existing powers of the High Courts were preserved and continued by legislation from time to time.

(10) Section 561-A of the Criminal Procedure Code declared that "nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order passed under this Code, or to prevent the abuse of process of any Court or otherwise to secure the ends of justice." The section was inserted in the Code by Act XVIII of 1923 to obviate any doubt that these inherent powers have been taken away by the Code. In terms, the section did not confer any power, it only declared that nothing in the Code shall be deemed to limit or affect the existing inherent powers of the High Court, see AIR 1945 18 (Privy Council) . Then came other enactments which were framed differently. Section 223 of the Government of India Act, 1935, provided:

Subject to the provisions of this Part of this Act, to the provisions of any order in Council made under this or any other Act and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, the jurisdiction of and the Law administered, in any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the court, including any power to make rules of court and to regulate the sitting of the Court and of members thereof sitting alone or in division courts, shall be the same as immediately before the commencement of Part III of this Act.

The Section enacted that the jurisdiction of the existing High Courts and the powers of the Judges thereof in relation to the administration of justice "shall be" the same as immediately before the commencement of Part III of the Act. The Statute confirmed and revested in the High Court all its existing powers and jurisdiction including its inherent powers. Then came the Constitution. Article 225 of the Constitution provides:

Subject to the provisions of this Constitution and to the provisions of any law of the appropriate legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the court, including any power to make rules of Court and to regulate the sittings of the court and of members thereof sitting alone or in Division courts, shall be the same as immediately before the commencement of this Constitution.

The proviso to the Article is not material and need not be read. The Article enacts that the jurisdiction of the existing High Courts and the powers of the Judges thereof in relation to administration of justice "shall be" the same as immediately before the commencement of the Constitution. The Constitution confirmed and revested in the High Court all its existing powers and jurisdiction including its inherent powers, and its power to make rules. When the Constitution or any enacted law has embraced and confirmed the inherent powers and jurisdiction of the High Court which previously existed, that power and jurisdiction has the sanction of an enacted ''law'' within the meaning of Article 21 as explained in A.K. Gopalan Vs. The State of Madras, . The inherent powers of the High Court preserved by Section 561-A of the Code of Criminal Procedure are thus vested in it by ''law'' within the meaning of Article 21. The procedure for invoking the inherent powers is regulated by rules framed by the High Court. The power to make such rules is conferred on the High Court by the Constitution. The rules previously in force were continued in force by Article 372 of the Constitution. The order of the High Court cancelling the bail and depriving the Appellant of his personal liberty is according to procedure established by law and is not violative of Article 21.

In view of the decision in Ratilal Bhanji Mithani s case (supra) it cannot any longer be doubted that all the High Courts in India possessed inherent powers and that Section 561-A of the Code of 1898 which has now become Section 482 of the Code, had continued those powers.

The learned Counsel for the applicant drew our attention to a decision of a Full Bench of this Court in the case of Ashok Kumar Dixit Vs. State of U.P. and Another, . In paragraph 155 of their judgment, the Full Bench of three Judges observed:

Of course, the decisions cited above were in connection with Section 482, Code of Criminal Procedure, but the scope of interference under Article 226 of the Constitution is narrower.

This case was referred to in answer to the submission of the learned Advocate General that in appropriate cases when the matter is pending investigation with the police and the charge-sheet has not been submitted, the court could provide a remedy to a person which was being dealt with illegally or maliciously under Article 226 of the Constitution of India. To be fair to the learned Advocate General, it must be said that, from the beginning of his argument, he stressed that the remedy of an aggrieved person against police action during investigation into a cognizable crime, is under Article 226 of the Constitution of India. We have no doubt that such a person can approach to this Court under Article 226 of the Constitution of India, but is he precluded from seeking relief u/s 482 of the Code?

In the case of P.N. Kumar and Another Vs. Municipal Corporation of Delhi, , the Supreme Court has held that-

The scope of the powers of the High Courts under Article 226 of the Constitution of India is wider than the scope of the powers of this Court under Article 32 of the Constitution.

The powers of the High Court under Article 226 of the Constitution of India are extensive and, as the Supreme Court has said, they are wider than the powers of the Supreme Court when the Supreme Court is acting under Article 32 of the Constitution of India. We do not agree with the learned Judges who decided the case of Ashok Kumar Dixit (supra) that the powers of the High Court under Article 226 of the Constitution of India are narrower than the powers u/s 482 of the Code.

Can a person aggrieved by police acting during investigation have two remedies--one u/s 482 of the Code and other under Article 226 of the Constitution of India? This question arises because both the remedies u/s 482 of the Code and under Article 226 of the Constitution of India are available in the High Court. We see no difficulty in this matter. The remedy u/s 482 of the Code is statutory and was available: even prior to the Constitution of India u/s 561-A of the Code of 1898. The remedy under Article 226 of the Constitution of India is an extraordinary remedy provided by the Constitution. There is no difficulty in the two remedies coexisting. Ordinarily, if a person seeks one of the alternative remedies, he will be precluded from seeking the other remedy.

We have now to deal with the question as to whether the powers of the High Courts u/s 561-A of the Code of 1898 are restricted to matters which have come up before the Courts or can be exercised even when the matter is under investigation by the Police.

In Puttan Singh''s case Mr. Justice B.N. Katju has not expressed any opinion on this question while Mr. Justice B.L. Yadav is firm in his view that the powers of the High Court u/s 561-A of the Code of 1898 cannot be invoked when the matter is pending investigation and has not yet come before the Court, and no charge-sheet has been submitted by the police. He has held that the words ''or otherwise to secure the ends of justice'' in Section 482 of the Code take their colour from the earlier clauses of the Section and has accordingly applied the doctrine of Ejusdem Generis.

In the case of Lilavati Bai Vs. The State of Bombay, , the Supreme Court was considering the meaning of expression "or otherwise" in Explanation (a) to Section 6 of the Bombay Land Requisition Act, 1948. It was contended on behalf of the Petitioner that Explanation (a) to section quoted above contemplates a vacancy when a tenant "ceases to be in occupation upon termination of his tenancy, eviction or assignment or transfer in any other manner of his interest in the premises or otherwise". It was urged before the Court that the words "or otherwise" must be considered Ejusdem Generis with the words immediately preceding. The Court observed that-

In the first place, as already indicated, we cannot go behind the declaration made by the Government that there was a vacancy. In the second place, the rule of Ejusdem Generis sought to be pressed in aid of the Petitioner can possibly have no application. The Legislature has been cautious and thorough-going enough to bar all avenues of escape by using the words "or otherwise". Those words are not words of limitation but of extension so as to cover all possible ways in which a vacancy may occur. Generally speaking, a tenant''s occupation of his premises ceased when his tenancy is terminated by acts of parties or by operation of law or by eviction by the landlord or by assignment or transfer of the tenant''s interest. But the Legislature when it used the words "or otherwise", apparently intended to cover other cases which may not come within the meaning of the preceding clauses, for example, a case where the tenant''s occupation has ceased as a result of trespass by a third party. The Legislature, in our opinion intended to cover all possible cases of vacancy occurring due to any reasons whatsoever. Hence, far from using those words ejusdem generis with the preceding clauses of the Explanation, the Legislature used those words in an ail inclusive sense.

Their Lordships of the Supreme Court quoted with approval the following passage from the decision of the Court of Appeal in the case of Skinner & Co. v. Shew and Co. (1893) 1 Ch. 413 (K). In that case the Court of Appeal bad to consider the words of Section 32 of the Patents, Designs and Trade Marks Act, 1883 (46 and 47 Vict. c. 57), to the following effect:

Where any person claiming to be the patentee of any invention, by circulars, advertisements or otherwise threatens any other person with any legal proceedings...

Their Lordships repelled the contention that the words ''or otherwise'' occurring in that section had to be read ejusdem generis with ''circulars'' and ''advertisements''. They observed that by so doing they will be cutting down the intendment of the provisions of the statute when clearly the words ''or otherwise'' had been used with a contrary intention. The rule of ejusdem generis is intended to be applied where general words have been used following particular and specific words of the same nature on the established rule of construction that the Legislature presumed to use the general words in a restricted sense, that is to say, as belonging to the same genus as the particular and specific words. Such a restricted meaning has to be given to words of general import only where the context of the whole scheme of legislation requires it. But where the context and the object and mischief of the enactment do not require such restricted meaonig to be attached to words of general import, it becomes the duty of the courts to give those words their plain and ordinary meaning. In our opinion, in the context of the object and the mischief of the enactment there is no room for the application of the rule of ejusdem generis. Hence it follows that the vacancy as declared by the order impugned in this case, even though it may not be covered by the specific words used, is certainly covered by the legal import of the words "or otherwise".

In our view the words "or otherwise to secure the ends of justice" occurring in Section 482 of the Code have to be read as words of widest amplitude covering many contingencies which are not covered by the preceding clauses of the section. The Legislature while incorporating Section 561-A in the Code of 1898 realised that the contingencies in which the exercise of the powers conferred may be required, could not be defined exhaustively and left the matter to judicial discretion and determination.

We now come to the argument of the learned Advocate General that the referring order is not sound for various reasons and the reference deserves to be returned unanswered. Before dealing with this aspect of the matter, it is necessary to mention that even after decisions of the Privy Council and the Supreme Court a very large number of cases in which application u/s 482 of the Code were pending and antes has been stayed or in which such a prayer was made, were listed before the Court for orders. It appears that these two cases were also listed. The learned Government Advocate relied on the decision of Puttan Singh''s case (supra) and prayed that the applications be dismissed or at least the application for arrest be rejected. It appears that on this objection being raised, the learned Judge made this reference without mentioning the facts in the cases.

As far as the facts of the two cases are concerned, we find that in both these cases the First Information Reports disclose the commission of a cognizable offence by the applicants and in view of Khwaja Nazir Ahmad''s case the Court should not have interfered as the matter was at the investigation stage. The reference was vague in the circumstances narrated above. In view of a large number of cases u/s 482 of the Code pending in this Court, we have thought it desirable to answer the question in so far as it in necessary.

The first argument of the learned Advocate General is that the learned Single Judge was bound by the Division Bench decision in the case of Puttan Singh (supra) and has no authority to refer the case for constitution of a larger bench.

This argument cannot be accepted in view of the decision of the Supreme Court in the case of Shri Bhagwan and Another Vs. Ram Chand and Another, from which the following passage is extracted:

It is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a learned single Judge hearing the matter is inclined to take the view that the earlier decisions of the High Court, were of a Division Bench or of a single Judge, need to be re-considered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety.

In view of this passage the learned single Judge was fully justified in directing that the papers be laid before the Chief Justice which amounted to a request made that a Bench of more than two Judges be constituted to hear the matter. The learned Judge''s view that the case should be heard at least by a Bench of five Judges was only a recommendation to the Chief Justice.

The rules in force are the Allahabad High Court Rules, 1952. These rules were framed by the High Court of Judicature at Allahabad in exercise of the powers conferred under Article 225 of the Constitution of India and all other powers enabling it in that behalf. In this case, we are concerned with the provisions of Chapter V. Rule 6 thereof provides for a reference to a larger Bench. It provides that the Chief Justice may constitute a Bench of two or more Judges to decide a case or any question of law formulated by a Bench hearing a case. In the latter event the decision of such Bench on the question so formulated shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question and dispose of the case after deciding the remaining questions, if any, arising therein,

The Chief Justice has made a reference in the instant case under Rule 6. We have already held that a single Judge when he felt difficulty in following the decision in Puttan Singh''s case, requested the Chief Justice to constitute a larger Bench. He did so and the Chief Justice has constituted the present Bench.

A further argument of the learned Advocate General has now been dealt with. His argument is that the scope of the powers of the High Court u/s 482 of the Code had been explained both by the Privy Council and the Supreme Court and that the decisions of the said authorities were binding on the High Court. The law having been declared was binding law and no question of law survives.

In the case of Bhagwan Swarup Lai Bishan Lal v. State of Maharashtra AIR 1965 SC 682 after referring to its own judgment in the case of State of Jammu and Kashmir and Others Vs. Thakur Ganga Singh for self and on behalf of other shareholders of Jammu and Kashmir Mechanics and Transport Workers Co-operative Society Limited and Another, the Supreme Court held that a substantial question of interpretation of a provision of the Constitution cannot arise when the law on the subject has been finally and effectively decided by this Court.

In reply Sri Rakesh Dwivedi, urges that the question as to whether arrest can be stayed in proceedings u/s 482 of the Code, has never been considered either by the Privy Council or the Supreme Court and as such the question No. 2 had never been answered by such authority. This is correct. The question No. 2 obviously survives as a question of law.

Coming to question No. 1, whether the High Court has inherent power to interfere with the investigation by the police, suffice it to say that the limitation on the powers have been spelt out by the Privy Council and the Supreme Court and those limitations are binding on our High Court, but as we read the decisions which have been referred to in the body of this judgment, there is no total exclusion of the jurisdiction of the High Court while the matter is in investigation stage. Of course, the powers are extremely circumscribed, but not totally excluded. In some matters while the investigation was going on the accused persons have successfully approached the High Courts and the Supreme Court. These cases are also referred to in the judgment.

The learned Advocate General has contended that by referring the question of law arising in cases which are cognizable by a single Judge to a larger Bench the provisions of Article 21 of the Constitution are violated as the person concerned can be deprived of his liberty otherwise than in accordance with the procedure established by law.

This argument is negatived by the decision of the Supreme Court in the case of Ratilal Bhanji Mithani (supra). In that case in an order cancelling the bail under inherent powers of the High Court was upheld by the Supreme Court and it was held that when the bail was cancelled under the Rules of Court the applicant was not deprived of his liberty except in accordance with the procedure established by law, and there was no violation of Article 21 of the Constitution of India.

The learned Advocate General has urged that the Question No. (i) and (ii) are very widely worded. He submits that answers to these questions require an essay and it is not the function of the High Court to write an essay or a thesis. We agree that it is not the function of the High Court either to write an essay or a thesis. In deciding the cases, we decide the specific matter which arises in the case.

Our answer to Question No. (i) is as follows:

Investigation into an offence is a statutory function of the police and the superintendence thereof is vested in the State Government. It is only in the rarest of rare cases, and that too, when it is found by the Court that the First Information Report and the investigation over a reasonable length of time, do not disclose the commission of a cognizable offence, or any offence of any kind, that the High Court may, u/s 482 of the Code, interfere with the investigation.

Our answer to question No. (ii) is as follows:

Under Section 482 of the Code the High Court may not direct stay of arrest during investigation except for a limited period in a case of such exceptional nature as is referred to in the preceding paragraph.

In view of our answer to Questions No. (i) and (ii) the Question No. (iii) does not require to be answered, and hence returned unanswered.

We would like to add that normally practice of this Court is that when a learned Single Judge does not agree with a decision of a Division Bench, he may request the Chief Jurtice to constitute a larger Bench and the Chief Justice normally constitutes a Division Bench to consider the matter. It is also not the function of a learned Single Judge to direct:

Office is directed to place the papers before the Hon''ble the Acting Chief Justice for constitution of a Bench of not less than 5 Judges for answering the reference.

He could have made a request to the Chief Justice to constitute a larger Bench and may possibly have expressed his opinion that the case should be decided by a Bench of not less than five Judges, but he certainly could not word the referring order in the language that he has done. We have treated those words as mere recommendations to the Chief Justice.

Before parting with the cases we must place on record our appreciation of the very thorough and able presentation of the case of the Petitioners by Sri J.S. Senger and Sri Rakesh Dwivedi who have made a valuable contributions towards the decision of this case.

We wish to add that Sri Shanti Swarup Bhatnagar, the learned Advocate General, who appeared before us on our request, has made a very erudite argument and has been of great assistance to this Court.

Let the papers of this case be sent to the learned Single Judge who referred the case.

While recognising the fact that the questions referred to, and decided by, this Bench are of general public importance involving substantial questions of law, we find that we cannot grant the certificate under Article 134-A(a) of the Constitution of India as the cases yet remain to be disposed of.