Amarawati and Anr. v. State of U.P. [2005 Cri.L.J. 755]

Case Background:

In this case, the bench was constituted to decide whether the case of Dr Vinod Narain v. State of U.P.[1] has been correctly decided by the Court or not.

Issues Raised

In the present case, the following issues were raised before the court –

• Whether the accused should be necessarily arrested if in the complaint or FIR it is revealed that the offence is a cognizable offence?
• Whether the decision of the court in the case of Dr. Vinod Narain v. State of U.P[2] is correct or not?

Rules Applicable

In this case, the following provisions are discussed:

1. Article 21 of the Constitution: It is the most progressive provision of the Constitution of India. It prohibits the violation of the right to life and personal liberty of an individual except in accordance with the procedure established by law.
2. Section 41 of Code of Criminal Procedure: According to section 41 of the Code of Criminal Procedure, a police officer may arrest any person without a warrant or any order from a magistrate in case of a cognizable offence.[3] Cognizable offence is defined under section 2(c) of Cr.P.C. as an offence for which a police officer may arrest a person without a warrant. From these sections, it is clear that a police officer may not must “arrest without warrant”. The term “shall” has not been used in any of these sections.

Analysis

In Dr Vinod Narain Case,[4] the court was of the opinion that the High Court in exercise of the power given to it under Article 226 of the Constitution, while issuing directions to subordinate courts, schedule of proceeding for deciding the application of bail cannot be fixed by the court.[5] As a result, the decision taken in the case of Dr Hidayat Hussain Khan v. State of U.P.[6] was overruled and the decision of Noor Mohommad case[7] was upheld. In Dr Vinod Narain Case, the court also opined that upon revelation of cognizable offence in complaint or FIR, the arrest of the accused becomes necessary as there is no other way in which he/she can be brought for the purpose of trial before the court. Under section 157 of Cr.P.C.,[8] the term “if necessary” gives discretion to Investigating Officer to not arrest the suspect in case of reasonable doubt about his/her identity.

Firstly, let’s analyse the issue of whether the accused should be necessarily arrested if in the complaint or FIR it is revealed that the offence is a cognizable offence.

As per Article 21 of the Constitution, “no person shall be deprived of his life and personal freedom except in accordance with the procedure established by law.”[9] It should be noted that in the case of A.K. Gopalan v. Union of India,[10] the court held that in order to deprive a person of his life and liberty, a procedure of law should be followed, for instance, provisions of IPC or Cr.P.C. or any other statute. According to the A.K. Gopalan case, article 21 is only a guarantee against executive order which is not supported by any statute.[11]

In the case of Maneka Gandhi v. Union of India,[12] it was held that any procedure of law which deprives an individual of his life and liberty should be just, fair and reasonable. It overruled the decision of the A.K. Gopalan Case.  Later the scope of article 21 was expanded in a series of cases including the Francis Coralie Mullin case,[13] Unnikrishnan case[14] and Sunil Batra case.[15] Hence, All the provisions of Cr.P.C. should be interpreted according to this meaning of Article 21.

According to Kelson’s Pure Theory of Law, in every legal system, a hierarchy of law is followed, if there arises a conflict between laws placed at different level, the higher law should prevail over lower law. In our Country, the following is the hierarchy :

1. Constitution of the country
2. Statutes made by Legislature
3. Delegated Legislation
4. Executive or Administrative Orders

So, whenever any provision of Cr.P.C. is in violation of the Constitution of India, the provisions of the Constitution shall prevail. In such a case, the statutory provisions are held void or interpreted in a way as it conforms with the provisions of the Constitution.

According to section 41 of the Code of Criminal Procedure, a police officer may arrest any person without a warrant or any order from the magistrate in case of a cognizable offence. Cognizable offence is defined under section 2(c) of Cr.P.C.[16] as an offence for which a police officer may arrest a person without a warrant. From these sections, it is clear that a police officer may not must “arrest without warrant”. The term “shall” has not been used in any of these sections.

In the case of Pramod Kumar v. Sadhna Ram,[17] the court analysed the difference between the use of the term “shall” and “may” in different sections and sub-sections of Cr.P.C. It holds that the legislative intention behind using the word “shall” is to make such provisions mandatory and the word “may” is to leave the use of such provisions to judicial discretion. Therefore, section 41 of Cr.P.C. should not be interpreted as “shall”.

In the case of Joginder Kumar v. State of U.P.,[18] it was held that the arrest made by the police officer should be reasonable and justified after proper investigation. No arrest should be made just because it is allowed to police officer to do so. Hence, on the same lines, it can be concluded that the decision taken by Court in Dr Vinod Narain case is not correct.

Now, let’s analyse whether High Court can issue directions to lower courts to resolve the bail application on the same day when it is filed or not.

Provisions relating to bail are provided under Chapter XXXIII of the Code of Criminal Procedure. Section 439 of Cr.P.C. deals with the provisions for granting bail by the Sessions Judge.[19] Section 437 of Cr.P.C. is usually applied to relatively minor offences for which the punishment is not a life sentence or death.[20] In my opinion, any bail application under section 437 should be generally solved by the court the same day except in some cases where it should record the reason for the delay in writing.

In Joginder Kumar’s case, the court opined that arrest by police does immeasurable harm to the reputation of the person in society.  In the holy book Gita, it has been emphasized that a  self-respecting person prefers death over dishonour.[21]

People often file a false case for which innocent people has to go to jail, this practice immensely affects the image of such people in the eyes of society. In the case of Kans Raj v. State of Punjab,[22] the court observed that nowadays all the relatives of the husband are roped into the cases of dowry death. All these factors should be considered by the court while deciding a case.

In the matter of Ramesh Chandra Kapil v. High Court of Judicature at Allahabad,[23] the court referred to the maxim “Cursus Curlaf Lex Curae” according to which every court is the keeper of its records and practice. In the case of A.R. Antulay, the court stated that the right of speedy justice is a fundamental right as enshrined under Article 21 of the Constitution. The same was upheld in the case of Raj Deo Sharma v. State of Bihar.[24]

Conclusion

It can be concluded that even if it is revealed in the complaint or FIR that the complained offence is a cognizable offence, the police should not necessarily make an arrest of the accused. It should be lead its way by the decision of Joginder Kumar’s case before deciding whether to arrest the accused or not. Ordinarily, any subordinate Court should not be directed to decide a bail application on the same day by the High Court because it would interfere with the judicial discretion of the court dealing with the application of bail. However, if a bail application is filed under section 437 of CrPC, then the court should.

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References:

[1] 1995 (32) ACC 375 (FB).

[2] Ibid.

[3] Code of Criminal Procedure, 1973, No. 2, Act of Parliament, § 41 (1973).

[4] Dr. Vinod Narain v. State of U.P, 1995 (32) ACC 375 (FB).

[5] Ibid.

[6] 1992 CRI LJ 3534.

[7] Noor Mohd. v. State of U.P., Writ Petition No. 919 of 1992.

[8] Code of Criminal Procedure, 1973, No. 2, Act of Parliament, § 157 (1973).

[9] Constitution of India, Art. 21 (1950).

[10] AIR 1950 SC 27.

[11] A.K. Gopalan v. Union of India, AIR 1950 SC 27.

[12] AIR 1978 SC 597.

[13] Francis Coralie Mullin v. Administrator, 1981 (1) SCC 608.

[14] Unnikrishnan v. State of A.P., JT 1993 (1) SC 474.

[15] Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.

[16] Code of Criminal Procedure, 1973, No. 2, Act of Parliament, § 2 (1973).

[17] 1989 (26) ACC 297.

[18] 1994 (31) ACC 431 (SC).

[19] Code of Criminal Procedure, 1973, No. 2, Act of Parliament, § 439 (1973).

[20] Code of Criminal Procedure, 1973, No. 2, Act of Parliament, § 437 (1973).

[21] Joginder Kumar v. State of U.P., 1994 (31) ACC 431 (SC).

[22] 2000 (41) ACC 3 (SC).

[23] 1984 (21) ACC 69 (Sum).

[24] 1998 (37) ACC 834 (SC).