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Judgment
Immaneni Panduranga Rao, J.—This is a petition filed for writ of Mandamus alleging that the petitioner is the owner of the lorry bearing No. ATR 4237 having a National permit; that the said lorry was hired by the 3rd respondent who is a transport contractor for Brooke Bond India Limited; that while booking a consignment of Tea from Gauhati to Bangalore on 28-9-90, the 3rd respondent has not taken insurance policy though his firm has collected the Insurance premium from Brooke bond India Limited; that when the lorry reached Rajanagaram, it had accidentally caught fire destroying the lorry as well as the goods; that the 3rd respondent won over the Police machinery at Rajanagaram and got a false case foisted against him u/s 407 read with 120B of Indian Penal Code which is pending before the III Additional Judicial First Class Magistrate, Rajahmundry as CC. No. 52 of 1990; that the 3rd respondent came to Vijayawada along with the police and began coercing the petitioner to pay Rs. 2,85,000/- towards the cost of the Tea lost in the accident; that thereupon the brother of the petitioner obtained anticipatory bail from the High Court and frustrated the efforts of the 3rd respondent to extract money from the petitioner; that bearing grudge, the 3rd respondent has set up the 2nd respondent and got another false case registered against him as Crime No. 13 of 1991 in the Court of the Chief Judicial Magistrate at Bhiwani, making false allegations; that his brother who was shown as the principal accused was at Gudiwada on 18-12-90 on which date the offence is alleged to have taken place; that the Police have arrested the brother of the petitioner on 24-1-91 at his house at Gudiwada and forcibly sought to take him to Haryana at Gun-point; that with great difficulty his brother''s friends and the petitioner could ensure the production of his brother before the II Metropolitan Magistrate, Vijayawada, who has remanded the petitioner''s brother to judicial custody; that his brother filed a writ of habeas-corpus in W.P. No. 1686/91 challenging his detention in connection with Crime No. 13/91; that the proceedings in Crime No. 13/91 are initiated with male fides and are initiated only with a view to extract money from the petitioner and his brother and that there is every danger of the petitioner being hurt or done to death if he is permitted to be arrested by the 1st respondent in connection with Crime No. 13 of 1991.
The learned counsel for the petitioner advanced common arguments in this writ petition and in Writ Petition No. 1686/91 filed by the brother of the petitioner and argued that for the same reasons the petitioner is entitled for a writ of Mandamus directing the respondents herein not to arrest him within the territorial limits of the State of Andhra Pradesh in connection with Crime No. 13 of 1991 on the file of 1st respondent.
The facts referred to above only show that the petitioner apprehending arrest by the 1st respondent has filed this petition. While doing so he has made a deliberate attempt to narrate false and misleading facts with regard to the arrest of his brother by alleging in paragraph 5 of the affidavit filed in support of the petition that the 1st respondent on 24-1-91 forcibly sought to take his brother to Haryana at gun-point; that on coming to blow of this, when his brother''s friends at Vijayawada insisted on the production of petitioner''s brother before a local Magistrate, he was paraded with hand cuffs at Vijayawada; and that ultimately with great difficulty the friends of the petitioner''s brother and the petitioner could ensure the production of his brother before the learned II Metropolitan Magistrate, Vijayawada, who has remanded his brother to judicial custody on condition of his being produced at Bhiwani on 31-1-91. In the affidavit filed by the petitioner''s brother in support of W.P. No. 1686/91 the alleged threat of 1st respondent at gun-point and forcibly seeking to take the petitioner''s brother to Haryana are not pleaded. On the other hand, it is only pleaded that on 24-1-91 during early hours the 1st respondent and his staff came to his house at Gudiwada and forcibly took him by car to Vijayawada; that there he was paraded in the streets of Vijayawada by hand cuffing and that at Vijayawada he was produced before the learned II Metropolitan Magistrate. The allegations that the 1st respondent sought to take the petitioner''s brother to Haryana at gun-point and that on the insistence of the production of petitioner''s brother before a local Magistrate the petitioner''s brother was paraded with hand cuffs in the streets of Vijayawada and that with great difficulty the friends of the petitioner''s brother and the petitioner could ensure production of his brother before the II Metropolitan Magistrate, in our view, are deliberate inventions by the petitioner for the purpose of this petition and in order to obtain interim directions preventing the respondents from arresting the petitioner within the territorial limits of State of Andhra Pradesh.
The allegations in the petition do not show that there was any attempt on the part of the 1st respondent to illegally arrest the petitioner. Even assuming that the allegations in paragraph 5 of the affidavit are true, the very fact that the 1st respondentand his staff did not choose to arrest the petitioner at Vijayawada, on 24-1-91 when the petitioner is said to have intervened when they were trying to take the petitioner''s brother to Haryana, show that in spite of the fact that the 1st respondent and the staff came across the petitioner herein in 24-1-91, they did not choose to arrest him.
The scope of Writ of Mandamus is mentioned in Halsbury''s laws of England, Vol. 11, page 84, in the following terms:
"The order of mandamus is an order of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Jus rice, directed to any person, Corporation, of inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to supply defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right."
Bowen L.J., has described the origin of a Writ of Mandamus in In Re. Nathan (1884) 12 QBD 461 thus:
"A writ of Mandamus, as everybody knows, is a high prerogative writ, invented for the purpose of supplying defects of justice. By Magna Charta the Crown is bound neither to deny justice to anybody, nor to delay anybody in obtaining justice. If, therefore, there is no other means of obtaining justice, the writ of Mandamus is granted to enable justice to be done. However, the proceeding.... by mandamus, is most cumbrous and most expensive; and from time immemorial accordingly the Courts have never granted a writ of mandamus when there was another more convenient, or feasible remedy within the reach of the subject. It was not to his interest that it should be granted and the reason for asking for it had ceased."
The Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. In exercising its discretion, the court will refuse the writ, if there is an alternative remedy.
In this case the writ petitioner seeks to prevent the respondents in general and the 1st respondent in particular to refrain from invoking the machinary under the Criminal Procedure Code against the petitioner which cannot be granted by way of a writ of Mandamus.
In this case there is no material to hold that the proceedings pending before the Chief Judicial Magistrate, at Bhiwani, are illegal and are absolutely void, because the translated copy of the First Information Report furnished by the petitioner shows that the 2nd respondent to the knowledge of the petitioner has left a brief case containing jewellary, cash and the wearing apparel of the 2nd respondent stating that he would go to his house and bring his personal diary and that by the time he returned from his house with the diary the petitioner and others who were in the car left the place, with his brief case contained jewellery and cash worth Rs. 44,700/-. Whether those allegations are sufficient to convict the petitioner and his alleged associates is a matter for decision by the court. At this stage the above allegations prima facie establish entrustment of the brief case containing jewellery and cash to the petitioner and others and that they have escaped with that brief case during the absence of the 2nd respondent. We, therefore, hold that there is prima facie case for proceeding against the petitioner u/s 406 and 420 of I.P.C.
The learned counsel for the petitioner relying upon the allegations in paragraph 6 of the affidavit filed in support of the petition submitted that under the circumstances explained therein, it is not safe for the petitioner to appear before the learned Magistrate at Bhiwani who has taken cognizance of Crime No. 13 of 1991. The allegations in the affidavit do not show that after the alleged incident dt. 13-2-91 the advocate went to the Chief Judicial Magistrate, Bhiwani and reported to him either orally or in writing about what had transpired when he went to the court for purpose of filing a copy application.
Even otherwise it is not for this Court to set at naught the criminal proceedings which are properly instituted in a competent court of criminal jurisdiction by passing any order in this writ petition. It is for the petitioner to appear before the criminal court and to put forth his defence.
The Privy Council in Emperor v. Nazir Ahmed AIR 1945 P.C. 18 in a case arising under Criminal Procedure Code (1898) held as follows:-
"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 matters which are within their province and into which the law imposes upon them the duty of enquiry. In India there is a statutory right on the part of the police under Sections 154 and 156, to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would be an unforrunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court u/s 561A."
The Supreme Court has endorsed the same view in Kurukshetra University and Another Vs. State of Haryana and Another, holding that the inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice, that the statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases, and that the High Court in exercise of inherent powers u/s 482, Criminal Procedure Code cannot quash a First Information Report.
In the light of the above legal position it cannot be said that this court exercising jurisdiction under Article 226 can do what the High Court is not expected to do in exercise of power u/s 482 Crl.P.C.
By virtue of the orders granted by this Court the petitioner has successfully stalled the Criminal Proceedings for about 1 1/2 years. Even assuming that the allegation that the advocate of petitioner''s brother was tried to be manhandled when he appeared in court at Bhiwani can be believed, it is quite probable that because of the conditional bail granted to the petitioner''s brother directing that he should appear before the criminal court at Bhiwani on 11-2-91, that the 2nd respondent could keep a watch over the movements of the advocate of the petitioner''s brother. It cannot be said that the same situation will arise when the petitioner surrenders before the concerned Magistrate and obtains suitable directions for his appearance and necessary protection.
For these reasons, we do not find any grounds to issue a writ of mandamus. To issue a writ as prayed for will stall the criminal process which is validly initiated against the petitioner on a complaint given by the 2nd respondent. It is premature to hold that the criminal prosecution launched against the petitioner is illegal and void.
The writ petition is accordingly dismissed. The writ petitioner is, however, granted two months time for surrendering before the Chief Judicial Magistrate, Bhiwani, before whom Crime No. 13 of 1991 is said to be pending.