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2002 DIGILAW 1795 (RAJ)

Radhey Shyam Sharma v. State of Rajasthan

2002-10-30

SHIV KUMAR SHARMA

body2002
JUDGMENT 1. 1. At the stage of admission of the instant writ petition the question arises as to whether the accused can file petition for quashing the FIR/Investigation under section 482 Criminal Procedure Code or Article 226 of the Constitution after furnishing undertaking pursuant to order under section 438 Criminal Procedure Code to make himself available for interrogation by a police officer as and when required ? 2. I have heard detailed submissions advanced before me at the Bar. 3. A close look at the provisions contained in section 438 Criminal Procedure Code demonstrates that while granting anticipatory bail, conditions can be imposed for securing the right of the investigating agency to proceed with the investigation fairly and properly. The High Court or the Court of Sessions under sub-section (2) of section 438 Criminal Procedure Code while making directions under sub-section (1) that in the event of the arrest of the accused he shall be released on bail may include such conditions in the light of the facts of the particular case as it may think fit including the following conditions : (i) a condition that the persons shall make himself available for interrogation by a police officer as and when required : (ii) a condition that the person shall not directly on indirectly make an inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police office (iii) a condition that the person shall not leave India without the previous permission of the Court : (iv) such other condition as may be imposed under sub-section (3) of section 437 as if the bail were granted under that section. 4. The intention of the Law maker in introducing section 438 Criminal Procedure Code is to relieve a person from unnecessary apprehension or disgrace of being detained in jail for some days before he can apply for bail in cases where he may have been implicated falsely by designing rivals, particularly so, in a case where the person concerned is not likely to abscond. This section postulates a stage where the court having jurisdiction over the offence has not taken cognizance of the offence. This section postulates a stage where the court having jurisdiction over the offence has not taken cognizance of the offence. At the stage of considering an application for anticipatory bail under section 438 Criminal Procedure Code , the court is concerned with the existence of the material against the accused and not as to whether such materials are credible or not, for the purpose of conviction. The court can consider whether there is any data available to the police for levelling accusations against the petitioner but the Court cannot consider the sufficiency of grounds for the accusation. 5. Vide section 482 Criminal Procedure Code the High Court possesses inherent powers to do real and substantial justice in three circumstances. Firstly, where the jurisdiction is invoked to give effect to an order of Court, secondly, if there is an abuse of the process of the Court and thirdly, in order to secure the ends of justice. Inherent powers can be exercised only for either of the three purposes specifically mentioned in the section. It cannot be invoked in respect of any matter covered by the specific provision of the Code. Under section 482 Criminal Procedure Code a party gets no vested right or inherent right to seek interference. In exercise of the jurisdiction the court itself steps in only to meet the contingencies therein catalogued. The inherent jurisdiction under section 482 Criminal Procedure Code is to be exercised sparingly and with circumspection and the court should not embark upon an enquiry whether the allegations in the complaint would be established by evidence or not. 6. Article 226 of the Constitution is couched in comprehensive phraseology and it ex facie confers wide powers on the High Court to reach injustice wherever it is found. But extraordinary powers have to be used sparingly. The jurisdiction under Article 226 is not appellate and it cannot be a substitute for the ordinary remedies in law. Article 226 enables an individual to approach the High Court directly for the issue of an appropriate writ or direction as a relief against the infringement of any fundamental right or for any other purpose. 7. The jurisdiction under Article 226 is not appellate and it cannot be a substitute for the ordinary remedies in law. Article 226 enables an individual to approach the High Court directly for the issue of an appropriate writ or direction as a relief against the infringement of any fundamental right or for any other purpose. 7. Constitution Bench of the Hon'ble Supreme Court in (1) Keshav Singh, Re AIR 1965 Supreme Court 745 expressed opinion on the issue of judicial power of the High Court under Article 226 as under : "The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court in that behalf, otherwise the power conferred on the High Courts and this Court would be rendered virtually meaningless. Let it not be forgotten that the judicial power conferred on the High Courts and this Court is meant for the protection of the citizen fundamental rights, and so, in the existence of the said judicial power itself is necessarily involved the right of citizen to appeal to the said power in a proper case." 8. Again in (2) L. Chandra Kumar's case (1997) 3 SCC 261 , Constitution Bench of the Hon'ble Supreme Court propounded thus : "We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this court under Article 32 of the Constitution is an integral and essential feature of the Constitution, consisting part of its basic structure ordinarily therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislation can never be ousted or excluded." 9. Having given my anxious consideration to the issue involved, I am of the opinion that right of an accused to move the court under section 482 Criminal Procedure Code or Article 226 of the Constitution cannot be curtailed. The accused who undertakes to make himself 'available for interrogation by a police officer, can still ask the court to quash the FIR. Principles of estoppel cannot be invoked in such a situation. However, it is for the court to exercise inherent jurisdiction/extraordinary powers sparingly.Admit. Issue Notice. Returnable within one week. Issue notice of stay application also. Let. the matter be placed before the regular Bench.Petition disposed of. *******