Ram Ratan and Others vs State of U.P. and Another

A.B. Srivastava, J.—By means of this application u/s 482 of the Code of Criminal Procedure the Applicants have prayed for quashing the FIR dated 13-10-1991, registered as Crime No, 319 of 1991, u/s 307 IPC at Police Station Shasni district Aligarh, staying their arrest, and for directing the criminal courts at Aligarh to consider and dispose of their bail application on the same day as they surrender before the said courts.

Admittedly, investigation in respect of the aforesaid First Information Report is being carried on by the concerned Police Station and no charge-sheet has yet been submitted.

The question arising, therefore, is whether the application for the reliefs mentioned above is maintainable at this stage u/s 482 of the Code of Criminal Procedure.

The learned Counsel for the Applicants who has been heard at length at the admission stage, has contended that the application u/s 482 Code of Criminal Procedure is maintainable, on the allegations made by the Applicants, for all the reliefs claimed. Alternatively, it is contended that the petition is maintainable at least for the relief of a direction to the courts concerned to hear and dispose of the bail plea of the Applicants the same day as they surrender before the said Court.

As far as the maintainability of the application u/s 482 Code of Criminal Procedure for quashing the First Information Report and staying the arrest during investigation is concerned, the said question stands concluded by the decision of a Full Bench of this Court in Ram Lal Yadav and Others Vs. State of U.P. and Others, . The Full Bench after considering the entire gamut of case law on the subject, has laid down that the High Court has no inherent power u/s 482 Code of Criminal Procedure to interfere with the investigation by the police and to stay the arrest of an accused during investigation. It further laid down that if the power of investigation is exercised by the Police Officer rnalafide or in- contravention of law, the High Court cannot quash the investigation in exercise of its inherent powers, but can do so Under Article 226 of the Constitution. On the averments made by the Applicants, as well as the admitted fact of the investigation being pending, the application u/s 482 Code of Criminal Procedure is not maintainable at this stage.

It may also be noteworthy in this connection that as per the constitution of Benches made by Hon''ble the Chief Justice in exercise of bis powers under Chapter v. of the Rules of Court, there has been constituted a Bench comprising of two Hon''ble Judges for entertaining writs of criminal nature, Including petitions under Article 226 of the Constitution, for quashing Investigation and other incidental or ancillary reliefs. The contention of the learned Counsel for the Applicants that despite the application having been made u/s 482 Code of Criminal Procedure this Bench can exercise Jurisdiction under Article 226 of the Constitution of India for entertaining/granting, the prayers contained in this application, is also not tenable therefore.

On behalf of the Applicants the decision of the Supreme Court in State of Haryana v. Chaudhary Bhajan Lal XXVIII (1991) ACC 111 , has been cited in support of the plea regarding maintainability of the application u/s 482 Code of Criminal Procedure at this stage. A perusal of the same would go to indicate that in the said proceedings also the petition for quashing the First Information Report and the investigation was made before the High Court, under Articles 226 and 227 of the Constitution of India, and not u/s 482 of the Code of Criminal Procedure. The Supreme Court in the said decision did not depart from the law laid down by the Privy Council in AIR 1945 18 (Privy Council) , rather approved the samelas well as its own earlier decisions following the dictum in Khwaja Najeer Ahmed''s case.

In view of the above stated legal position, on the facts of the case as they stand at present, this application u/s 482 Code of Criminal Procedure is not maintainable, although it will be open to the Applicants to approach this Court under Article 226 of the Constitution of India.

Coming to the next submission of the Applicants that despite the prayer, for quashing the First Information Report and the investigation, not being maintainable u/s 482 Code of Criminal Procedure the relief regarding a direction for disposal of the bail application of the Applicants the same day, by the courts below, may be entertained and granted, certain instances of such a direction/ observation having been made in the past have been cited, Having given anxious consideration to this aspect of the matter, however it is found that the plea of the Applicants is not tenable. Under law what cannot be done directly, cannot be allowed to be done indirectly. Once it is found that the Applicants have a remedy at the given stage under Article 226 of the Cons-tution, they will be required to approach the Court for any consequential relief also under the same provision. Jurisdiction can also not be conferred by truncating the relief.

In none of the cases cited on behalf of tbe Applicants the question whether a prayer for direction in the nature sought for is maintainable u/s 482 Code of Criminal Procedure appears to have been considered or decided.

In Sipti v. State of U.P. XXVIII (1991) ACC 178, Hon''ble N. L. Ganguly, while making an observation and direction for disposal of a bail plea by the courts below the same day did not decide the question of maintainability of an application u/s 482 Code of Criminal Procedure for such relief at the Investigation stage. Similar was the position in Rajendra v. State of U.P. XXVI (1989) ACC 57 andBabu Ram v. State of U.P. XXV (1988) ACC 318. decided by Hon''ble Girdhar Malviya, J. AndShamim Ahmad v. State of U.P. XXVII (1990) ACC 262, decided by Hon''ble S. I. Jafri, J.

In Lateef v. State of U.P. XXVI (1990) ACC 440, petition u/s 482 Code of Criminal Procedure was filed after the submission of charge sheet by the police.

In view of the above stated position, therefore, this application u/s 482 Code of Criminal Procedure is not maintainable at this stage and is, accordingly rejected, without prejudice to the right of the Applicants to seek remedy under Article 226 of the Constitution, or u/s 482 Code of Criminal Procedure at the appropriate stage.