Smt. Amarawati and Another vs State of U.P.

M. Katju, J.—One of the points urged by the learned counsel for the applicants is that this Court should direct that the applicants, who are ladies, should not be arrested till the conclusion of the trial.

In the decision of a five Judge Full Bench of this Court in Dr. Vinod Narain v. State of U.P, in Writ Petition No. 3643 of 1992 (1996 Cri LJ) it has been held that this Court cannot direct consideration of bail on the same day and by a 3-2 majority it was also held that this Court cannot even direct grant of interim bail. It may be mentioned that the only 2 questions referred to the Full Bench were whether the High Court can direct consideration of the bail application on the same day it is moved, and whether this Court can direct grant of interim bail. No other question was referred. However while dealing with the questions referred Hon''ble PALOK BASU, J. (whose view has been followed by two other Hon''ble Judges) has also observed as follows:

"once disclosure of cognizable offence is made, arrest of the accused or suspect is a "must", for there is no other known method by which he may be brought before the Court for trial".

With great respect to the said observation, in my humble opinion it is in direct conflict with the view expressed by the Supreme Court in Joginder Kumar Vs. State of U.P. and others, and hence the matter needs to be reconsidered by a larger bench.

In Joginder Kumar Vs. State of U.P. and others, . The Supreme Court has observed "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 lockup 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 bonafides 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 a person to attend the Station House and not to leave the station without permission would do".

The Supreme Court in the aforesaid decision referred to the National Police Commission''s third report wherein it is stated that the arrest by the Police in India is one of the chief sources of corruption. The report suggested that, by and large, nearly 60%. of the arrests were either unnecessarily or unjustified.

The Supreme Court also quoted with approval the report of the National Police Commission which states:-

"An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:

(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 given to violent behaviour and is likely to abscond and evade the processes of law.

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

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

The Supreme Court has observed that the above guidelines are merely the incidents of personal liberty guaranteed under the Constitution.

I have carefully perused the learned judgment of Hon''ble Palok Basu, J. In the said judgment there is reference to Joginder Kumar''s case at only one place where His Lordship observes "An arrested person may get informed a friend or relative for his welfare on knowing that he is under arrest, and this right of the arrested person shall be conveyed to him by the police officer concerned regarding which an entry shall be made in the relevant diary, and when the arrested person is produced before the Magistrate'' for remand the Magistrate will have to satisfy himself that these requirements have been complied with".

Apart from the above observation pertaining to Joginder Kumar''s case there is no other reference in the said judgment of Hon''ble Palok Basu, J. to the other observations of the Supreme Court in Joginder Kumar''s case (supra) which clearly lay down that arrest is not a must in cognizable cases.

With profound respect to my learned brother I am constrained to observe that it is not open to a High Court Judge to pick out and follow only one part of a Supreme Court judgment and overlook the other parts. The entire judgment of the Supreme Court is binding on the High Court and it must be followed by High Court Judges faithfully and punctually.

It needs hardly to be mentioned that the decision of the Supreme Court are binding on all Courts in India under Article 141 of the Constitution of India. It may be mentioned that there is no provision similar to Article 141 regarding High Court''s judgments, though they are also binding by the doctrine of precedent. However, since a special provision viz. Article 141 was made for the Supreme Court judgments they are even more authoritative and binding than even High Court judgments. Even the obiterdicta of the Supreme Court is binding, though not of the High Court.

Hence the observations of the Supreme Court in Joginder Kumar''s case that arrest is not a must in every cognizable offence could not have been ignored by High Court.

There is no doubt that nowadays often false and frivolous first information reports are lodged against even respectable persons of society, and if such respectable persons have to be arrested it will certainly result in incalculable harm to their reputation and self respect.

In Joginder Kumar Vs. State of U.P. and others, the Supreme Court has observed "arrest and detention in police lockup of a person can cause incalculable harm to the reputation and self esteem of a person". In the Gita Lord Krishna said to Arjun"

which means:

"For a self respecting man, death is preferable, to dishonour" (See Gita 2 : 34)

The judgment of the Supreme Court in Joginder Kumar Vs. State of U.P. and others, is in my humble opinion conclusive of the matter, but I may further point out that Section 2(c) of the Cr. P. C. defines cognizable offence as an offence for which a police officer may arrest without warrant. The word used therein is ''may'' and not ''must''. This clearly indicates that arrest is not a must in every cognizable case. It is the discretion of the Police Officer to arrest or not to arrest, and the discretion cannot be an arbitrary one but must be guided by the principles laid down by the Supreme Court in Joginder Kumar''s case. Very often there is no necessity to arrest at all. Take for example a case under the Essential Commodities Act where the allegation is that the stock was not displayed on the board of the shop. Ordinarily there is no necessity to arrest in such cases. Neither the shop keeper nor his shop is likely to disappear. The shopkeeper can be interrogated by the police at the shop or at his residence.. What is the need to arrest him ? Arrest and detention cause a lot of humiliation. Similarly a litigant displeased with a High Court judgment may file a totally false First Information Report against the High Court Judge, or a criminal may file a false First Information Report against a Police Officer to whom he is inimical. In such cases is the arrest of a High Court Judge or Police Officer a must? The Supreme Court''s judgment in Joginder Kumar Vs. State of U.P. and others, is that it is not a must. Hence I am with profound respect to the judgment of the majority in Dr. Vinod Narain''s case constrained to say that the observation that arrest is a must whenever a cognizable offence is disclosed is contrary to the Supreme Court''s verdict.

In view of the above I am of the view that the above observation in the judgment of Hon''ble Palok Basu, J. in Dr. Vinod Narain''s case (supra) needs to be reconsidered by a larger bench.

Let the papers of this case be laid before Hon''ble The Chief Justice for constituting a larger bench to consider the correctness of the following observations in the judgment of Hon''ble Palok Basu, J. "Once disclosure of cognizable offence is made, arrest of the accused or suspect is a "must".