Jitin Prasad and Others vs State of U.P. and Others

Heard Sri Gopal Chaturvedi, learned senior advocate assisted by Sri Samit Gopal who appeared for the petitioners and Sri Prem Prakash Yadav, learned advocate who appeared for the respondent no.4 and Sri Lalvijay Singh, learned AGA who represents respondents no.1 to 3.

Prayer in this petition is for quashing the first information report dated 15.11.2011 (Annexure 1 ) to the writ petition.

Apart from main prayer in the writ petition, there is a prayer in the stay application that the respondents be directed not to arrest the petitioners pursuant to the impugned first information report during pendency of the writ petition.

This writ petition was filed on 17.11.2011 and was first taken up on 22.11.2011,Sri Prem Prakash Yadav, learned counsel appeared and took time to argue the matter from the side of the informant.

Sri Yadav, learned counsel for the respondent no.3, filed counter affidavit upon which, petitioners'' have also filed a rejoinder affidavit and thus after one day of first taking up of the matter, the matter was heard.

Sri Singh, learned AGA at the very beginning submitted that no time has been given to the government side to file any counter affidavit and to put its version as various statements have been made in counter affidavit by the informant against the police personnel also.

Thus grant of time to the learned government side to file counter affidavit in the writ petition as well as to the various facts as stated in the counter affidavit of the informant, before disposal of the writ petition is a must and in absence thereof, writ petition cannot be finally disposed of.

As learned counsel for the petitioners argued about threat of their arrest, in presence of whatever material was available after the arguments were advanced, matter was considered.

Submission of learned counsel for the petitioners is that all the petitioners are peace loving citizen rather they are elected representatives and there can be no criminal intention on their part in commission of the offence even if the facts stated in the first information is accepted to be correct.

It was then submitted that in fact, the informant according to the official version, succeeded in reaching the high security zone by breaking the security cordon, even before the Helicopter of VVIP who was to land and it is the security personnel and the police who succeeded in preventing the informant and others from carrying out their design and so far as petitioners are concerned, they were just present and they tried to avoid an untoward situation which might have happened with their leader.

It is further submitted that the fact as mentioned in the first information report is that the informant was going to submit memorandum to the National Secretary of the Congress Party and when private security guards and the security personnel arrested them, then the petitioners beat them by kicks and fists, is totally incorrect.

Submission is that there is a clear contradiction in the informant version so recorded by the local police on 14.11.2011 itself and in the first information report which was lodged by the informant on 15.11.2011 and now from the facts as stated in the counter affidavit (para 13), it is clear that the petitioner did not lodge the first information report and it was just got signed by the Station Officer by giving threat and it is after filing the writ petition on 17.11.2011 by improving the version and by covering various short comings on 19.11.2011, a detail letter is said to have been sent to the DIG of police and therefore, on these facts, there being serious material contradiction in the prosecution version( first information report version) and the version so recorded by local police on 14.11.2011 and the version sent by the informant to the DIG of police on 19.11.2011, petitioners are entitled to get interim protection.

Sri Yadav, learned counsel in response to the aforesaid, submits that submitting of memorandum, showing of black flag etc. is an expression of fundamental rights of the informant The action of the petitioners with the help of private Guards and the local police to detain them, to beat them and to cause injuries on the body of the informant and others in no way can be claimed to be justified and therefore, if the local police is to detain the petitioners, then no interim protection is required to be given.

It is submitted that the submission of not lodging the first information report on 15.11.2011 ( annexure 1) to the writ petition by the informant is not correct and in fact, that is on the basis of misreading of para-13 of the counter affidavit and rather para 12 and 13 of the counter affidavit are to be read together.

It is then submitted that on 19.11.2011 by giving more details, a representation was sent to the DIG of police and in fact, the informant is well within his rights in re-writing various improvements and bringing to the facts of the authorities various details of the incident which was left to be mentioned in the first information report and therefore, that factor is also to be taken into consideration while forming an opinion.

It is further submitted that it is a case where, three persons were injured namely Kartikay Yadav, Ashish Yadav and Sajid Ali and all were examined in the hospital and thus it is not a fit case where discretion is to be exercised by this Court.

In support of the submission that the informant can improve his version, reliance has been placed on the decision given by the Apex Court in the case of Babubhai Vs. State of Gujarat and Others,

So far as learned AGA is concerned, he fairly submits that he has not been given time so far to file counter affidavit and to bring any material and therefore, whatever has been placed on record from both sides, he is just to reiterate them.

In view of aforesaid submission, this Court is to consider the facts as are available today on record and is to take a decision.

Before forming opinion in the matter, we can divide our conclusion by giving the entire order into two parts-(i) dealing the factual aspects in prima facie manner (ii) dealing the legal aspects, in reference to certain decision of this Court and the Apex Court as are on the point.

So far as the first part is concerned, we are first to observe that on record, official version of the police ( Annexure 2) to the writ petition is there. This clearly indicates that informant and other persons who were arrested and detained/challaned u/s 151, 107, 116 Cr.P.C were not having in possession any kind of papers or memorandum and they were just wearing clothes. It is further stated that they tried to break the security cordon prepared for the VVIP and in spite of vehement efforts, they effectively tried to proceed to the prohibited area upon which, required force was used and they were detained in order to maintain peace and law and order situation. It is also mentioned that if strong steps might not have been taken then any kind of serious untoward incident would have happened.

All the detained persons were released after some time.

In the aforesaid sequence, now first information report dated 15.11.2011 gains its importance. In the first information report, it is mentioned that the informant was going to submit memorandum for restoration of students union in the University. This material gets its contradiction from the official version noted above wherein it has been clearly stated that from the clothes of the persons so detained, no papers etc. were found. In the first information report, it is mentioned that the informant was got detained by the private guards and the local police and it is thereafter, they were beaten. The official version states that the force posted there arrested /detained them by use of required force.

In para 13 of the counter affidavit, even that is to be read in continuation of para 12 of the counter affidavit states that the Station Officer (respondent no.3) himself got a report prepared on his own. He asked the deponent to put his signature and even gave threat that if the deponent fails to do so, no one would be sent for medical aid/check up during that night. Relevant averment in this respect as stated in the para 13 can be quoted here for our purpose;

Para-13: That the Station Officer (respondent no.3) himself got a report prepared on his own. He asked the deponent to put his signature and even vilified and threatened that if the deponent fails to do so, no one would be sent for medical aid during that night...

Although during course of argument Sri Yadav, learned advocate submits that first information report was got dictated and written at the behest of the informant and he was not in position to write but the language in para 13 of the counter affidavit in this respect appears to be slightly not happy.

Be as it may, representation sent by the informant on 19.11.2011( annexure 7) to the counter affidavit also clearly states, in the bottom of the first page, that in spite of vehement opposition of the informant, police just got an application/complaint written and forced the informant to sign on it and it is thereafter, they were ready to send injured for medical aid in the hospital.

So far medical examination of three persons noted above is concerned from the report, it is clear that Kartikay Yadav, Ashish Yadav and Sajid Ali, were brought by Yogesh Yadav. Certainly so far two persons namely Anil Yadav and one more were brought by one constable and on the body of those two persons, there were just abrasion and contusion (page 13 and 14) of the counter affidavit.

There may not be any dispute about the fact that the petitioners claim themselves to be elected representatives and having position in the government. As rightly argued by Sri Yadav, learned advocate, it is matter of every day that in any rally of political parties or at the visit of VVIP slogans are raised and black flags are displayed.

This being so, prima facie, it may not be a case of any kind of criminal intention on the part of petitioners to do such things which may not be warranted in law as they may be facing this kind of situation more or less on various occasions.

On the facts which are clear from the first information report in question, about which there is a serious issue as to its genuineness and from the facts so stated in the representation dated 19.11.2011 which is after about 5 days of the incident, from the facts so stated in the official version dated 14.11.2011 in which certain persons were detained including the informant/applicant and were released thereafter, it can be very well observed by the Court that criminal intention of any kind or motive might not be there for commission of the offence for which, petitioners are charged.

Certainly aforesaid observations which are in brief can only be our prima facie satisfaction.

So far the legal aspect in respect to threat of arrest during investigation is concerned, it is to be observed that apart from Section 7 of Criminal Law Amendment Act, so far other sections i.e. 147, 149, 323, 504 IPC are concerned, punishment is otherwise well within seven year.

Recently, there happens to be an amendment in the Cr.P.C. by Act No. 5 of 2009 which has been notified on 01.11.2010 and now in view of Section 41(1)(b) CR.P.C., there is protection from arrest of an accused in the offence punishable upto the imprisonment of seven year and strict compliance of the procedure, to be complied with by the local police has also been issued. The relevant aspect in this respect is hereby mentioned;

However, by the amendment vide Act No. 5 of 2009, which has been notified on 01.11.2010, it has been provided in Section 41(1)(b) Cr.P.C. that a person against whom credible information of being involved in a cognizable offence punishable with imprisonment of 7 years or less is reported to the police officer, the accused can only be arrested if the police officer is satisfied that:

(a) there is probability of the accused committing another offence,

(b) for proper investigation of the offence,

(c) to prevent such person from causing the evidence of the offence to disappearor his tampering with the evidencein any manner,

(d) to prevent such person from making any inducement, threat or promise to the witnesses to disclose such facts to the court or to the police,

(e) unless the person is arrested, his presence in court could not be ensured and the police officer has to record the reasons in writing before making such arrest.

The present case is one punishable with imprisonment up to 7 years. The petitioner should, therefore have no apprehension that he would be arrested unless there are conditions justifying his arrest as mentioned above and provided u/s 41(1)(b) Cr.P.C.

Also under the newly introduced provision, section 41A Cr.P.C. (which has also been added by Act No. 5 of 2009, effective from 1.11.2010), in all cases where the arrest of such an accused is not needed in view of the provisions of section 41(1) Cr.P.C., the police officer concerned is required to issue a notice directing the accused to appear before him at a specified place and time. However if at any time the accused fails to comply with the terms of the notice, or fails to identify himself, or the police officer is of the opinion that the arrest is required, he may arrest the said accused after recording his reasons for the same. The police powers of arrest will be subject to any orders that may have been passed by the Competent Court.

After lodging the first information, in respect to the powers of the police to arrest an accused, the Apex Court in the judgment of the Joginder Kumar Vs. State of U.P. and others, has already made various observations from which it is clear that it is only in certain circumstances/contingency, the powers of arrest has to be resorted to. No arrest is to be made because it is lawful for the police to do so. Existence of power to arrest is one thing, justification for exercise of it is quite another.

The observation as made by the Apex Court in Joginder Kumar Case in para 23 is quoted hereunder:

In India, Third Report of the National Police Commission at page 32 also suggested:

...An arrest during the investigation of a cogniable 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 ad 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 offences 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.

It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines....

This Court in the case of Amrawati and others which is a decision by Larger Bench reported in 2004 (57) ALR 390 has made clear observation in this respect. The observation as contained in para 5 in the case of Amrawati (supra) is quoted hereunder;

In view of the above discussion and the observations made by the Apex Court in the case of Joginder Kumar (supra), the observations made by Hon''ble Palok Basu, J. in the case of Dr. Vinod Narain (supra) in paragraph 183 that once disclosure of cognizable offence is made, arrest of the accused or suspect is a ?must? are incorrect and the said decision has not laid down the correct law.

The judgment of this Court in the case of Amrawati has also been approved by the Apex Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. and Others, The observation as made in the case of Lal Kamlendra (supra) in para 8 is hereby quoted as under;

In appropriate cases interim bail should be granted pending disposal of the final bail application, since arrest and detention of a person can cause irreparable loss to a person''s reputation, as held by this Court in Joginder Kumar case. Also, arrest is not a must in all cases of cognizable offences, and in deciding whether to arrest or not the police officer must be guided and act according to the principles laid down in Joginder Kumar case.

In respect to a person if he has no bad antecedents to his credit or his reputation in the society is not bad, concession has been permitted to be given. There was a case before the Apex Court where viability of remission order of convict was challenged but the Apex Court by making following observation, approved the order of remission. The recent decision of the Apex Court is in the case of Epuru Sudhakar and others Vs. State of A.P. AIR 2006 (SC) 3385. The observation of the Apex Court certainly came after a decision on the facts but for small help to our conclusion that can be quoted hereunder;

...During enquiry it is revealed that there is no danger to the life of the convict from the villagers and also there is no danger to the villagers from the convict if the convict is released as stated by the President of the village Shri Shaik Ziauddin, Village Secretary Sri Sanjanna, village elders Shri Nagaswamy Reddy, Sri K. Venkata Rami Reddy, Shri Khajamoinuddin and Sri Pathan Moutali etc.

As seen from the past history of the convict he is not a naxalite, dacoit, and habitual offender. He was peacefully carrying out agricultural activities and a good Congress Worker. He use to provide employment to a number of persons through agriculture. It is also revealed that the villagers are having good opinion on the convict.

(Underlined for emphasis)

The decision given in the case of Babu Bhai (supra) on which, reliance has been placed by Sri Yadav, learned advocate is on the point that even after lodging the first information report, improvement to the facts can be made and that has to be taken into account and thus, at present to the controversy in issue, the decision so referred may not have any application.

Law is well settled that the improvement to the facts, counter version etc, all are permissible and it is even after submission of charge sheet with the permission of the Court or otherwise under the direction of the police official, the further investigation can always be directed. The bar is only for re-investigation and for lodging of second first information report in respect of the same incident.

Be that as it may, the aforesaid is not the situation here and thus we are not to write on this any more.

Having considered the matter at length, from both aspects as noted above, we are of prima facie of the view that it is not a case where during investigation, and at first hearing of the matter, specially when there is no version of the government side and the information stated in counter version/stand of the local police there is variance, the petitioners are not to be given interim protection.

The first information report reveals some charges against the petitioners which if found to be correct may not be in a decent taste but at the same time the other part of the issue is that in such a sensitive high security matter which is provided by the Government to a person (VVIP) trying to enter into the high security zone/prohibited area by anybody, keeping in mind the series of unpleasant incidents with the high dignatories cannot be also lightly ignored and thus a balance is to be struck.

Learned AGA has already prayed for reasonable time to file counter affidavit to meet the facts as stated in the writ petition and to meet the facts as stated in the counter affidavit filed by the informant.

In view of the aforesaid, let the matter be posted/listed in the week commencing 19.12.2011. Respondents no. 1 to 3 are to file counter affidavit to which rejoinder affidavit is to be there.

On the facts, this Court directs that investigation is to proceed in which cooperation of the petitioners is assured but during investigation, petitioners are not to be arrested pursuant to the impugned first information report dated 15.11.2011 registered at Case Crime No. 308 of 2011 under sections 147, 149, 323, 504 IPC and section 7 of Criminal Law Amendment Act, 1932, police station Jhusi district Allahabad.