1. This petition under Section 482 Cr. P.C was initially filed by four persons, namely, Lalji Yadav, Shahabuddin, Ataur Rahman urf Babu and Imtiaz Ahmad, who were allegedly involved in case crime No. 19 of 1997 under Section 364-A/120-B/302/34 I.P.C police station Bhelupra, Varanasi, challenging the order dated 30th August, 1997 passed by the Chief Judicial Magistrate, Varanasi by which the bail application of the applicants was rejected on the ground that they were not in custody of that court. It may be mentioned here that the application of one Mukhtar Ansari was also considered along with the bail application of these persons and the accused were detained in Ghazipur Jail in connection with some other offence. On 8-9-97 an application was moved on behalf of Mukhtar Ansari son of Subhanullah Ansari for being him impleaded as petitioner No. 5 in Criminal Misc. Application No. 5537 of 1997. Sri P.P Srivastava, learned Senior Counsel assisted by Sri D.V Singh appeared on behalf of Mukhatar Ansari and Stated that the applicants Lalji Yadav and others have no objection if Mukhtar Ansari is impleaded as petitioner No. 3, with them and he was appearing on behalf of those applicants as well as on behalf of Mukhtar Ansari applicant also. In view of this development, the application was allowed and Mukhtar Ansari was permitted to be impleaded as petitioner No. 5.
2. Another application was filed on behalf of Mukhtar Ansari to the effect that he be treated to be in custody in the aforesaid case crime No. 19 of 1997 and the Chief Judicial Magistrate, Ghazipur be directed to grant the remand during the pendency of the investigation under Section 167 Cr. P.C It was orally prayed that the execution of ‘B’ warrant be stayed against him. This Court heard the matter and passed a detailed order on 9-9-1997 in which it was provided that if the accused applicant Mukhtar Ansari was required to be produced before the Chief Judicial Magistrate, Varanasi, adequate security arrangements should be provided to him and the applicant shall be sent by the Jail authorities under the protection of a force other than the local police in case the order was produced before the jail authorities by 10.00 A.M the next day. It was left open for the parties concerned to apprise the Chief Judicial Magistrate, Varanasi about the order passed by the Division Bench of this Court in writ petition No. 1932 of 1997 Shrimati Shanti Rungata v. State of U.P dated 3-9-1997 as well as the facts stated by the learned Standing Counsel for the C.B.I and if the court concerned considered that it was necessary to take the applicants into custody, it was free to pass appropriate orders.
3. It may be mentioned here that vide order dated 3-9-1997 a Division Bench of this Court ordered that the matter should be investigated by C.B.I and accordingly a direction was issued that the investigation in respect of the aforesaid case crime No. 19/97 under Section 364-A/366 I.P.C.P.S Bhelupura Varanasi shall be conducted by the C.B.I Thereafter two applications were moved by applicant Mukhtar Ansari. In one application he prayed for the modification of the order dated 9-9-1997 in his respect that his arrest may be stayed during the pendency of the investigation by the C.B.I till the submission of the charge-sheet by the C.B.I and in the other application he prayed to be permitted to amend the prayer made by him in the application filed by him on 8-9-1997 to the effect that his arrest may be stayed during the investigation by the C.B.I
4. The learned counsel for the applicants Sri P.P Srivastava, Senior Advocate, learned Standing Counsel for the C.B.I Sri Girdhar Nath and the learned counsel appearing for the informant Sri C.N Tripathi have been heard at quite length.
5. Sri P.P Srivastava, learned counsel for the applicants vehemently argued that the application for amendment in the original application be allowed and the order dated 9-9-1997 be modified to the extent that the arrest of the petitioner be stayed. In support of his contention he has submitted that the C.B.I has not been entrusted the investigation of the case by the Division Bench but has only been directed to enquire into the matter and there is difference between “enquiry” and investigation.
6. The above submission of the learned counsel for the applicants Sri P.P Srivastava necessitated the perusal of the order passed by the Division Bench dated 3-9-1997 passed in Writ Petition No. 1952 of 1997 as well as the learned Standing Counsel for the C.B.I Sri Girdhar Nath was also called upon to verify as to whether the C.B.I is making an enquiry or investigation.
7. Vide order dated 3-9-1997 the Division Bench has observed in its order as under:
“Considering the facts and circumstances of the case, as has been detailed in our earlier order, we deem it desirable that this case should be investigated by C.B.I Accordingly we direct that investigation in respect of Criminal Case No. 1997 under Section 364-A/366 I.P.C.P.S Bhelupur, Varanasi, shall be conducted by C.B.I…………”
Shri Girdhar Nath has also slated that earlier before passing the order by the Division Bench the State Government had already referred the matter for investigation to the C.B.I In view of the above quoted order of the Division Bench of this Court as well as the statement of Sri Girdhar Nath, it is clear that the matter is being investigated by the C.B.I
8. Although the prayer for allowing the amendment in the main petition has been made but the Court consideres it fit and the whole case be decided instead of deciding the application separately. It may be mentioned here that the applicant Mukhtar Ansari's prayer with regard to the stay of his arrest is also being considered along with the main application and is being decided although this additional prayer through subsequent application is with regard to the only one of the applicants i.e Mukhtar Ansari.
9. The brief facts of the case are that one Mahabir Prasad Rungta had lodged a first information report at police station Bhelupur, Varanasi stating therein that on 22-1-1997 at 5.45 P.M when his brother Nand Kishor Rungta was silling in his office at Ravindrapuri, a white Maruti Esteem car appeared and one person alighting from the car came to the Guard and telling his name as Vijai Singh expressed his desire to meet him. The guard informed his brother Nand Kishor Rungta about this. On this his brother called him in and after talking for 3-4 minutes they came out upto the outside standing Maruti car. The persons sitting in the Maruti talked about 5-6 minutes standing by the side of the car and then the car proceeded towards north and reaching the road the earlier person again came out of the car and told the driver to take Nand Kishor Rungta to his Kothi. In the night at 10 P.M a telephone call was received from which the fact of Kidnapping came into light. The telephone was immediately disconnected. The F.I.R was lodged on 23rd January, 1997 at 14.50 O'clock. The F.I.R was registered as case crime No. 19 of 1997 under Section 364-A and 365, I.P.C Thereafter the investigation was referred to C.B.C.I.D but the State Government thought it proper to refer the matter to C.B.I The C.B.C.I.D prima facie found the involvement of the applicants in the matter. They were in jail in connection with some other offence and hence ‘B’ warrant was issued by the C.I.M Varanasi for taking the custody of the applicants. The wife of aforesaid Nand Kishor Rungta namely Shrimati Shanti Rungta filed a writ petition in this Court which was registered as Criminal Misc. Writ Petition No. 1932 of 1997 Shrimati Shanti Rungta v. State of U.P which was heard and decided on 3-9-1997 by the Division Bench, which directed the investigation of the case crime by the C.B.I as mentioned above.
10. The learned counsel for the C.B.I has raised a preliminary objection to the effect that no prayer for quashing of the F.I.R has been made and the petition under Section 482, Cr. P.C is not maintainable. It has also been contended that the petition has been filed at a premature stage. A counter-affidavit has been filed by the C.B.I by one Rajeev Chandola Inspector, C.B.I.S.I.C IV New Delhi in which only this much has been stated that the investigation by the C.B.I in the matter in question is at the initial stage and it will not be proper to express any definite opinion regarding the involvement of the applicant. It has also been stated that the applicant Mukhtar Ansari has already been released on bail in case crime No. 44 of 1991 under Section 302 I.P.C Police Station Kotwali Ghazipur from the Court of District and Sessions Judge, Ghazipur on 19-9-1997 and this fact has resulted in making the application of Mukhtar Ansari infructuous.
11. Vide supplementary counter-affidavit, the C.B.I Inspector Rajeev Chandola has stated that the matter is still at the initial stage of investigation and any intervention or interference by this Court will hamper the investigation and defeat the purpose and power of investigating agency which has been provided under the Code of Criminal Procedure.
12. Learned counsel for the applicant Mukhtar Ansari Sri P.P Srivastava, Senior Advocate has vehemently argued that if the investigation of the C.B.I is at the initial stage and if it cannot be said whether the C.B.I will involve the petitioner or not, atleast he should be permitted to move on the street fearlessly and his rights may not be curtailed because if the arrest is not stayed, he will always apprehend in his mind that he may be arrested at any time as the C.B.C.I.D has already involved him in the matter. Shri P.P Srivastava has placed reliance on the case law laid down by the Hon'ble Supreme Court in the case of Joginder Kumar v. State, (1994) 4 SCC 260 : (AIR 1994 SC 1349) where it has been held that 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. A person is not liable to be arrested merely on the suspicion of complicity in an offence.
13. Learned counsel for the C.B.I Shri Girdhar nath in reply to this has submitted that the C.B.I is not relying on the investigation of the C.B.C.I.D with regard to the involvement of the petitioners. The C.B.I will satisfy itself by making independent investigation to find out the involvement of the petitioner Mukhtar Ansari or any of other applicants in the matter. He has further submitted that the arrest is a part of the investigation and in view of the decision of the Division Bench ordering investigation, the powers with regard to Section 173(2)(e) Cr. P.C cannot be taken away.
14. Mr. C.M Tripathi, learned counsel appearing for the informant has also submitted that the investigation has now admittedly been transferred to C.B.I and the Chief Judicial Magistrate, Varanasi has passed order dated 10th September, 1997 stating that the court of C.J.M Varanasi has now no jurisdiction in the present case and no warrant has been issued against Sri Mukhtar Ansari. It has been submitted that after the order dated 10 September, 1997 passed by the Chief Judicial Magistrate, Varanasi the present application under Section 482 Cr. P.C has become infructuous as the petitioners have not challenged any order of the Special Judge, C.B.I, Lucknow and have not approached the Court of Special Judge, C.B.I Lucknow for any relief, he has also cited the case law reported in Denesh Trivedi M.P v. Union of India, (1997) 4 SCC 306 in which it has been held that the matter needs to be addressed by a body which can function with the highest degree of independence, being completely free from every conceivable influence and pressure. Such a body must possess the necessary powers to be able to direct investigation of all charges thouroughly before it decides, if at all, to launch prosecution, he has further referred to the case law reported in State represented by the State Rep. By The C.B.I v. Anil Sharma, (1997) 7 SCC 187 : (AIR 1997 SC 3806) in which the Hon'ble Supreme Court has held that in a case like this efective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and isulated by a pre-arrest bail order during the time he is interogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.
15. Mr. Tripathi also placed reliance on a Division Bench decision of this Court reported in Mohammad Mustafa v. State of U.P, 1987 A.W.C 332 : (1987 All LJ 611) where it has been held that the power of the police to investigate the case registered on the basis of the first information report is unlettered and cannot be interfered with by High Court in the exercise of its inherent jurisdiction under Section 482. Cr. P.C The power of the police to arrest the applicant with respect to a cognizable offence is mentioned in Section 41(1)(a) Cr. P.C cannot also be interfered with by the High Court in the exercises of its inherent jurisdiction. Thus even though the applicant is not named in the above mentioned first information report the police has the power to arrest him in connection with the case registered on its basis under Section 41(1)(a), Cr. P.C without any interference by High Court in the exercise of its inherent powers.
16. With regard to the objection of the learned counsel for the C.B.I Shri Girdhar Nath that the arrest is a part of investigation as well as reference to Section 173(2)(e), Cr. P.C this Court is of the opinion that in Section 173(2)(e), Cr. P.C the only requirement is to furnish information to the Court concerned by the Officer Incharge of the Police Station whether the accused has been arrested. It does not mean that it is necessary to arrest the accused before submission of charge-sheet in every case. No doubt that the police has ample power to arrest a person against whom allegations regarding commission of a cognizable offence or to even to prevent a person from commission of any cognizable offence is there but the same should only be exercised when a prima facie case is made out against the person or his arrest is necessary or justified as has been held by Hon'ble Supreme Court in the case of Jogender Kumar (supra). In view of this, it cannot be said, that the court can not stay the arrest because it is a part of investigation.
17. The learned counsel for the C.B.I Shri Girdhar Nath then contended that the present petition under Section 482 Cr. P.C is not maintainable in view of seven Judges Full Bench decision in the case of Ramlal Yadav v. State of U.P, 1989 Cri LJ 1013 and the remedy of the petitioners lies else where. It has also been contended that since only a F.I.R has been lodged and investigation is going on, this Court should refrain itself from interfering under Section 482, Cr. P.C on the question of maintainability Mr. P.P Srivasiava, learned counsel cited certain rulings which are being discussed hereinbelow:
18. In Eastern spinning Mills Shri Virendra Kumar Sharda v. Shri Rajiv Podder, 1989 Supp (2) SCC 385 : AIR 1985 SC 1668 : (1985 Cri LJ 1858), the Hon'ble Supreme Court observed that we consider it absolutely un-necessary to make reference to the decision of this Court and they are legion which have laid down that save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation.
19. In the matter of Janta Dal v. H.S Chowdhary, (1992) 4 SCC 305 : AIR 1993 SC 892 : (1993 Cri LJ 600) the Hon'ble Supreme Court has held at page 926 (of AIR):
“After the proposition of law enunciate by this Court in a series of decisions relating to exercise of the extra-ordinary powers under Article 226 of the Constitution or the inherent powers under Section 482 of the Code in Bhajan Lal's case (1990 (3) Supp. S.C.R 259), we have given certain category of cases by way of illustrations wherein the power of quashing could be exercised either for preventing abuse of process of any court or otherwise to secure the ends of justice stating that it may not be possible to laydown any precise, clearly defined and sufficient channelised infrangible guidelines and rigid formula to give an exhaustive list of various kinds of cases wherein such power should be exercised.…………”
20. In the matter of State of H.P v. Pirthi Chand, (1996) 2 SCC 37 : (AIR 1996 SC 977) the Hon'ble Supreme Court has held at page 980 (of AIR):
“It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to Scrutinise the FIR/Charge-sheet/Complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR, is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted (sic concluded) and the charge-sheet is laid, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded.
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When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary powers under Art. 226 since efficacious remedy under Section 482 of the Code is available. When investigating officer spends considerable time to collect the evidence and places the charge-sheet before the Court, further action should not be short circuited by resulting to exercise inherent power to quash the charge-sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power.
21. In the matter of State Of Bihar v. Rajendra Agrawalla., JT 1996 (1) SC 601 : (1996 Cri LJ 1372). the Hon'ble Supreme Court has held at page 1373 (of Cri LJ):
“It has been held by this Court in several cases that the inherent power of the Court under Section 482 of the Code of Criminal Procedure should be very sparingly and cautiously used only when the court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court, if such power is not exercised. So far as the order of cognizance by a magistrate is concerned, the inherent power can be exercised when the allegations in the first information report or the complaint together with the other materials collected during investigation taken at their face value, do not constitute the offence alleged. At that stage it is not open for the court either to shift the evidence or appreciate the evidence and come to the conclusion that no prime facie case is made out.”
22. In the matter of State of Uttar Pradesh v. O.P Sharma, JT 1996 (2) SC 488 : 1996 All LJ 601) the Hon'ble Supreme Court has held that the High Court has committed grave error of law in quashing the F.I.R The High Court should be loathe to interfere at the threshold to thwart the prosecution exercising its inherent power under Section 482 Cr. P.C or under Article 226 and 227 of the Constitution, as the case may be and allow the law to take its own course. In that case the Investigating Officer was directed to complete the investigation within four weeks from the date of receipt of the order of Hon'ble Supreme Court.
23. In the matter of Rashmi Kumar (Smt) v. Mahesh Kumar Bhada, (1997) 2 SCC 397) the Hon'ble Supreme Court referring to its earlier views held that it is well settled legal proposition that the High Court should sparingly and cautiously exercise the power under Section 482 of the Code to prevent the mis-carriage of justice and the principles laid down in State Of U.P v. O.P Sharma. (supra) should always be kept in mind before embarking upon the exercise of inherent powers vested in the Court. In that case also the Hon'ble Supreme Court has held that the High Court was wholly wrong in quashing the complaint/proceedings under Section 482 of the Code.
24. In the matter of Girja Shanker Srivastava v. State of U.P (Criminal Misc. Application No. 5811 of 1997 decided on 29-9-1997), learned brother S.K Phaujdar J. discussed the various case laws right from The Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 : (1945 All LJ 47) while considering the question whether there is conflict between Full Bench decision of this Court in the case of Ram Lal Yadav (supra) and a decision of the Supreme Court in the case of Bhajan Lal, held that the law laid down by the Hon'ble Supreme Court is law of land under Article 141 of the Constitution and is binding within the territory of India, and it is not necessary to make any reference for a further decision by a larger bench and in obedience to the decision of the Supreme Court as required under Art. 141 of the Constitution of India, it must be held that the Court does not lack jurisdiction in interfering in a criminal proceeding in exercise of its powers under Section 482, Cr. P.C but it should be limited only to the rarest of the rare case in terms of the guideline given by the Supreme Court and, in fact, this was the view of the Court at least since 1944 when the privy Council pronounced its judgment in Khwaja Nazir Ahamad's case (supra). It was observed in that case that the police had a statutory right under the Code of Criminal Procedure to investigate into the offence and the High Court should not interfere in exercise of its inherent power but, in this very judgment it was also held that if any cognizable offence was not disclosed or if no offence at all was indicated, the police would have no authority to initiate an investigation and if it is done the High Court could interfere under its inherent power.
25. A resume of what has been discussed above, it is held that the inherent power of this Court to pass orders to secure the ends of justice or to prevent the abuse of the process of Court is always there and a petition under Section 482 Cr. P.C is maintainable but the Court should exercise its powers very sparingly and cautiously in rarest of the rare case. If the individual case comes within the purview of the guidelines given by the Hon'ble Supreme Court in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604 (1992 Cri LJ 527).
26. Now coming to the merits of the instant case, the first information report lodged undisputedly constitutes a cognizable offence and is registered as case crime No. 19 of 1997 under Section 365/120-B, I.P Code. It is a matter of investigation as to who is involved in the commission of offence and it is the subject-matter of investigation. As indicated in the counter-affidavit, the investigation by the C.B.I is at the initial stage and at this stage it cannot be said whether the applicant Mukhtar Ansari is involved in the matter on the basis of the investigation done by the C.B.I till the date of hearing of the case. The earlier investigation done by the U.P Police and the C.B.C.I.D has not been ordered to be continued by the C.B.I and the C.B.I was required to investigate the matter independently de novo and hence the apprehension of the applicant that since he has been involved by the C.B.C.I.D would also be involved by the C.B.I is misconceived.
27. Further, the applicants have not been named in the first information report. In view of the order of the Chief Judicial Magistrate, Varanasi dated 10 September, 1997 the present application under Section 482, Cr. P.C has become infructuous. Further, in view of the fact that the C.B.I is investigating into the matter de novo the prayer made by the petitioners for stay of arrest, in my opinion, is pre-mature. Furthermore, in my opinion, this is not a fit ease for exercise of inherent jurisdiction under the Code as this case does not fall within the category of rarest of rare cases and on the facts and circumstances of the present case it is quite distinguishable from the facts of the case of Joginder Kumar (supra).
28. In the result, the petition fails and is dismissed. There shall be no order as to costs.
29. Today this case was listed for delivery of judgment. Learned counsel for the petitioner, Sri D.V Singh has moved this application today and Sri P.P Srivastava, learned senior Advocate has put in appearance to argue and press this application. Sri Girdhar Nalh is also present.
30. Sri P.P Srivastava, learned counsel has submitted that a telephonic message has been received by his clerk, who has filed affidavit in support of this application that a large number of P.A.C alongwith certain officers of C.B.I have surrounded the house of the applicant, Mukhtar Ansari at Ghazipur and have restricted the movement of the entire family including children in order to arrest the applicant, and the law laid down by the Hon'ble Supreme Court in the case D.K Basu v. State of West Bengal, JT 1997 (1) SC 1 : ((1997) 1 SCC 416 : AIR 1997 SC 610), the C.B.I has not followed the norms laid down by the Hon'ble Supreme Court in that case.
31. At this stage it can not be said whether the intention of the C.B.I, is to arrest the applicant or for some other purpose the action is being taken and the learned Standing Counsel for the C.B.I, is also not in a position to say anything.
32. Considering the facts and circumstances of the case, it is directed that the directions issued in D.K Basu's case (supra) specially in paragraph 36 shall be followed by the C.B.I which are as under:—
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by atleast one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in Custody in police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the Police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of him arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next firend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a trained Doctor every 48 hours of his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation though not throughout the interrogation.
(11) “A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer cuasing the arrest within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicous notice board.”
33. With the above observations, this application stands disposed of. Copy of this order shall be supplied to the learned counsel for the petitioner on payment of usual charges within 24 hours.
34. Order accordingly.