KM. HEMA MISHRAversusSTATE OF U.P. AND OTHERS

                    [2014] 1 S.C.R. 465


                     KM. HEMA MISHRA                                A
                               v.
              STATE OF U.P. AND OTHERS
             (Criminal Appeal No.146 of 2014)

                     JANUARY 16, 2014
                                                                    B
     [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

    Code of Criminal Procedure, 1973:

      ss.41(a), 41(b), 41A - Object of - Held: Is to check          c
arbitrary or unwarranted arrest and protect the right to personal
liberty guaranteed u!Article 21 of the Constitution of India.

       s.438 - State of U.P. - Pre arrest bail - Grant of - Writ
jurisdiction, if invokable - Held: s.438 has been specifically
 omitted and made inapplicable in the State of U.P. - Still, a 0
 party aggrieved against whom FIR is lodged and/or charge-
 sheet is filed in court can invoke the jurisdiction of High ·court
 u/Article 226 of the Constitution for quashing of proceedings
- The considerations, however which have to weigh with the
 High Court to decide as to whether such proceedings are to E
 be quashed or not are entirely different than that of granting
 interim protection against the arrest - Since the grounds on
 which such an FIR or charge sheet can be quashed are
 limited, once the writ petition challenging the validity of FIR
 or c;harge-sheet is dismissed, the grant of relief, incidental in F
 nature, against arrest would obviously not arise, even when a
justifiable case for grant of anticipatory bail is made out -
 Though the High Courts have very wide powers u!Art.226, the
 very vastness of the powers imposes on it the responsibility
 to use them with circumspection and in accordance with the G
judicial consideration and well established principles, so much
 so that while entertaining writ petitions for granting interim
 protection from arrest, the Court would not go on to the extent
 of including the provision of anticipatory bail as a blanket
                                465                                 H
    466      SUPREME COURT REPORTS                (2014] 1 S.C.R.

A provision - Thus, such a power has to be exercised vety
    cautiously keeping in view, at the same time, that the
    provisions of Article 226 are a device to advance justice and
    not to frustrate it - Constitution of India, 1950 - Article 226.

          s.438 - Anticipatoty bail - Purpose of - Discussed.
B
       An FIR was lodged against the appellant under
  sections 419/420 IPC. The appellant filed writ petition
  seeking quashing of FIR, deferment of arrest until
  collection of credible evidence sufficient for filing charge
C sheet by following amended proviso to Sections 41(1)(b)
  r/w Section 41A Cr.P.C. The High Court dismissed the writ
  petition. The instant appeal was filed challenging the
  order of the High Court.

0         Dismissing the appeal, the Court

          HELD:

    Per K.S. Radhakrishnan, J.

E      1. Since the provisions similar to Section 438 Cr.P.C.
  being absent in the State of Uttar Pradesh, the High Court
  is burdened with large number of writ petitions filed
  under Article 226 of the Constitution of India seeking pre-
  arrest bail. Section 438 was added to the Code of Criminal
F Procedure in the year 1973, in pursuance to the
  recommendation made by the 41st Law Commission, but
  in the State of Uttar Pradesh by Section 9 Criminal
  Procedure (Uttar Pradesh) Amendment Act, 1976, Section
  438 was specifically omitted, the legality of which came
  up for consideration before the Constitution Bench of
G this Court in *Kartar Singh case wherein the Court held
  that the deletion of the application of Section 438 in the
  State of Uttar Pradesh by Section 9 of the Amendment Act
  does not offend either Article 14, Article 19 or Article 21
  of the Constitution of India and the State Legislature is
H
        KM. HEMA MISHRA v. STATE OF U.P.                   467


competent to delete that section, which is one of the              A
matters enumerated in tire concurrent list, and such a
deletion is valid under Article 254(2) of the Constitution
of lridia. Therefore, as per the Constitution Bench, a claim
for pre-arrest protection is neither a statutory nor a right
guaranteed under Article 14, Article 19 or Article 21 of the       B
Constitution of India. Therefore, there is no concept of
"anticipatory bail" as understood in Section 438 of the
Code in the State of Uttar Pradesh. [Paras 13, 14 and 16]
[477-H; 478-A-E; 479-B-C]

       *Kartar Singh v. State of Punjab (1994) 3 SCC 569      =C
  1994 (2) SCR 375; Balchand Jain v. State of M.P. (1976) 4
          =
  SCC- 572 1977 (2) S.CR 52; Smt. Amarawati & Ors. v. State
. of U.P. (2005) Cri.L.J. 755; Lal Kamlendra Pratap Singh v.
  State of Uttar Pradesh & Ors. (2009) 4 SCC 437 = 2009 (4)
  SCR 'f.027; Som Mittal v. State of Kamataka (2008) 3 SCC         D
 753 & (2008) 3 sec 574 = 2008 (3) SCR 130- relied on.

      Satya Pal v. State of U.P. 2000 Cri.L.J. 569; Ajeet Singh
 v. State of U.P. 2007 Cri.L.J. 170; Lalji Yadav & Ors. v. State
 of U.P. & Anr. 1998 Cri.L.J. 2366; Kamlesh Singh v. State of      E
 U.P. & Anr. 1997 Cri.L.J. 2705 and Natho Mal v. State of U.P.
 1994 Cri.L.J. 1919 - approved.

      2. In this case, FIR was lodged for offences, under
 Sections 419 and 420 IPC which carry a sentence of
 maximum of three years and seven years respectively               F
 with or without fine. Benefit of Section 41(a) Cr.P.C .. must
 be available in a given case, which provides that an
 investigating officer shall not arrest the accused of such
 offences in a routine manner and the arrest be made, only
 after following the restrictions imposed under Section            G
 41(b). Amended provisions make it compulsory for the
 police to record the reasons for making arrest as well as
 for not making an arrest in respect of a cognizable
 offence for which the maximum sentence is upto seven
 years. Section 41 and 41A make it compulsory for the              H
    468     SUPREME COURT REPORTS                [2014] 1 S.C.R.


A police to issue a notice in all such cases where arrest is
  not required to be made under Clause (b) of sub-section
  (1) of the amended Section 41. But, all the same,
  unwillingness of a person who has not been arrested to
  identify himself and to whom a notice has been issued
B under Section 41A, could be a ground for his arrest.
  Legislation has laid down various parameters, warranting
  arrest of a person, which itself is a check on arbitrary or
  unwarranted arrest and the right to personal liberty
  guaranteed under Article 21 of the Constitution of India.
c There is unanimous view that in spite of the fact that
  Section 438 has been specifically omitted and made
  inapplicable in the State of Uttar Pradesh, still a party
  aggrieved can invoke the jurisdiction of the High Court
  under Article 226 of the Constitution of India, being
  extraordinary jurisdiction and the vastness of the powers
0
  naturally impose considerable responsibility in its
  application. All the same, the High Court has got the
  power and sometimes duty in appropriate cases to grant
  reliefs, though it is not possible to pin-point what are the
E appropriate cases, which have to be left to the wisdom
  of the Court exercising powers under Article 226 of the
  Constitution of India. [Paras 19, 20 21 and 22) [481-G-H;
  482-A; 483-D; 484-C-G]

       3. When the Court declined to decide on the rights of
F the parties and expressly held that they should be
  investigated more properly in a civil suit, it could not, for
  the purpose of facilitating the institution of such suit, issue
  directions in the nature of temporary injunctions, under
  Article 226 of the Constitution. The language of Article 226
G does not permit such an action and once the Court finds
  no merits in the challenge, writ petition will have to be
  dismissed and the question of granting further relief after
  dismissal of the writ, does not arise. Consequently, once
  a writ is dismissed, all the interim reliefs granted would
H also go. [Paras 23 and 24] [485-E-H]
       KM. HEMA MISHRA v. STATE OF U.P.                469


    State of Orissa v. Madan Gopal Rungta AIR 1952 SC 12     A
= 1952 SCR 28- relied on.
Per A.K. Sikri, J. ( Supplementing.l
     HELD: 1. In the absence of any provisions like
Section 438, Cr.P.C. applicable in the State of Uttar B
Pradesh, there is a tendency on the part of the accused
persons, against whom FIR is lodged and/or charge-
sheet is filed in the Court to file Writ Petition for quashing
of those proceedings so that they are able to get
protection against the arrest in the interregnum which is C
the primary motive for filing such petitions. It is for this
reason that invariably after the lodging of FIR, Writ Petition
under Article 226 is filed with main prayer to quash those
proceedings and to claim interim relief against pre-arrest
in the meantime or till the completion of the trial. However, D
the considerations which have to weigh with the High
Court to decide as to whether such proceedings are to
be quashed or not are entirely different than that of
granting interim protection against the arrest. Since the
 grounds on which such an FIR or charge sheet can be E
 quashed are limited, once the Writ Petition challenging
the validity of FIR or charge-sheet is dismissed, the grant
of relief, incidental in nature, against arrest would
 obviously not arise, even when a justifiable case for grant
 of anticipatory bail is made out. It is for this reason, in
                                                               F
 appropriate cases, the High Court is empowered to
 entertain the petition under Article 226 of the Constitution
 of India where the main relief itself is against arrest.
 Obviously, when provisions of Section 438 of Cr.P.C. are
 not available to the accused persons in the State of Uttar G
 Pradesh, under the normal circumstances such an
 accused persons would not be entitled to claim such a
 relief under Art. 226 of the Constitution. It cannot be
 converted into a second window for the relief which is
 consciously denied statutorily making it a case of casus
 omissus. At the same time, the High Court cannot be H
    4 70    SUPREME COURT REPORTS               [2014] 1 S.C.R.

A completely denuded of its powers under Article 226 of the
  Constitution, to grant such a relief in appropriate and
  deserving cases; albeit this power is to be exercised with
  extreme caution and sparingly in those cases where
  arrest of a person would lead to total miscarriage of
B justice. There may be cases where pre-arrest may be
  entirely unwarranted and lead to disastrous
  consequences. Whenever the High Court is convinced of
  such a situation, it would be appropriate to grant the relief
  against pre-arrest in such cases. What would be those
c cases will have to be left to the wisdom of the High Court.
  The High Court is not bereft of its powers to grant this
  relief under Art. 226 of the Constitution. [Paras 3, 4) [487-
  C-H; .488-A-D]

       2. There may be imminent need to grant protection
D against pre-arrest. The object of this provision is to relieve
  a person from being disgraced by trumped up charges
  so that liberty of the subject is not put in jeopardy on
  frivolous grounds at the instance of the unscrupulous or
  irresponsible persons who may be in charge of the
E prosecution. An order of anticipatory bail does not in any
  way, directly or indirectly; take away from the police their
  right to investigate into charges made or to be made
  against the person released on bail. [Para 6) [489-C-D]

F        Joginder Kumar v. State of UP. & Ors. 1994 Cr L.J. 1981
    - relied on.
       3. The purposes for which the provisions of
  anticipatory bail are made are quite obvious. One of the
  purposes of the arrest is that the accused should be
G available to the investigating machinery for further
  investigation and questioning whenever he is required.
  Another purpose is that the trial should not be
  jeopardized and for this purpose the restrictions on the
  movements of the accused are necessary. The
H genuineness of the alleged need for police custody has
        KM. HEMA MISHRA v. STATE OF U.P.              471


to...be examined and it must be balanced against the duty    A
of courts to uphold the dignity of every man and to
vigilantly guard the right to liberty without jeopardizing
the state objective of maintenance of law and order. [Para
7] [489-E-G]
                                                             B
   Kartar Singh and Ors. V. State of Punjab (1994) 3 SCC
    =
569 1994 (2) SCR 375- relied on.

     4. The High Court would not be incorrect or acting
out of jurisdiction if it exercises its power under Art.226
to issue appropriate writ or direction or order in C
exceptional cases at the behest of a person accused of
an offence triable under the Act or offence jointly triable
with the offences under the Act. Though the High Courts
have very wide powers under Art.226, the very vastness
of the powers imposes on it the responsibility to use them D
with circumspection and in accordance with the judicial
consideration and well established principles, so much
so that while entertaining writ petitions for granting
interim protection from arrest, the Court would not go on
to the extent of including the provision of anticipatory bail E
as a blanket provision. Thus, such a power has to be
exercised very cautiously keeping in view,. at the same
time, that the provisions of Article 226 are a devise to
advance justice and not to frustrate it. The powers are,
therefore, to be exercised to prevent miscarriage of F
justice and to prevent abuse of process of law by
authorities indiscriminately making pre-arrest of the
 accused persons. In entertaining such a petition under
 Art.226, the High Court is supposed to balance the two
 interests. On the one hand, the Court is to ensure that G
 such a power under Art.226 is not to be exercised liberally
 so as to convert it into Section 438, Cr.P.C. proceedings,
 keeping in mind that when this provision is specifically
 omitted in the State of Uttar Pradesh, it cannot be resorted
 to as to back door entry via Art.226. On the other hand,
                                                              H
    472      SUPREME COURT REPORTS                (2014] 1 S.C.R.


A wherever the High Court finds that in a given case if the
  protection against pre-arrest is not given, it would amount
  to gross miscarriage of justice and no case, at all, is made
  for arrest pending trial, the High Court would be free to
  grant the relief in the nature of anticipatory bail in exercise
B of its power under Art. 226 of the Constitution. It is again
  clarified that this power has to be exercised sparingly in
  those cases where it is absolutely warranted and justified.
  [Paras 10, 11 and 12] [494-G-H; 495-A-C]

C Per K.S. Radhakrishnan, J.
                          Case Law Reference:
          1994 (2) SCR 375         Relied on           Para 13
          2000 Cri.L.J. 569        Approved            Para 15
D
          2007 Cri.L.J. 170        Approved            Para 15
          1998 Cri.L.J. 2366       Approved            Para 15
          1997 Cri.L.J. 2705       Approved            Para 15
E         1994 Cri.L.J. 1919       Approved            Para 15
          1977 (2) SCR 52          Relied on           Para 16
          (2005) Cri.L.J. 755      Relied on           Para 16

F         2009 (4) SCR 1027        Relied on           Para 17
          2008 (3) SCR 130         Relied on           Para 18
          1952 SCR 28              Relied on           Para 23
          Per A.K. Sikri, J. { SUE!E!lementing}
G
                          Case Law Reference:
          1994 Cr L.J. 1981        relied on           Para 5
          1994 (2) SCR 375         relied on           Para 8
H
        KM. HEMA MISHRA v. STATE OF U.P.                       473


    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                    A
No.146 of 2014

     From the Judgment and Order dated 09.01.2012 of the
High Court of Judicature at Allahabad Lucknow Bench Lucknow
in writ Pentition Misc. Bench No. 171 of 2012.                          B
    Aseem Chandra, Anurag Singh, Vivek Singh, for the
Appellant.

     Siddharth Luthra, ASG, Gaurav Bhatia, AAG, Binu Tamta,
B. Krishna Prasad, P.K. Dubey, Gurmohan Singh Bedi, Pranay              C
Agarwala, Shiv Pande, Shiv Chopra, Pragati Neekhra, Gautam
Talukdar, for the Respondents.

    The Judgments of the Court were delivered by

    K.S. RADHAKRISHNAN, J. 1. Leave granted.                            D

     2. Appellant herein had invoked the extraordinary
jurisdiction of the High Court under Article 226 of the
Constitution of India seeking the following reliefs:

     (i)    Issue a writ, order or direction in the nature of           E
            Certiorari thereby quashing the impugned FIR
            dated 21.12.2011, contained in Annexure No. 1 to
            this writ petition, lodged at crime No. 797/11 under
            Sections 419/420 IPC, at Police Station Zaidpur,
            District Barabanki;                                         F

     (ii)   Issue a writ, order or direction in the nature of
            Mandamus thereby directing the Superintendant of
            Police, Barabanki, the opposite Party No. 2, and
            the Investigating Officer, Case Crime No. 797/11,           G
            under Sections 419/420 IPC, Police Station,
            Zaidpur, District Barabanki, the opposite party No.
            3, to defer the arrest of the petitioner until collection
            of the credible evidence sufficient for filing the
            charge-sheet by following the amended proviso to            H
    474       SUPREME COURT REPORTS                       [2014] 1 S.C.R.


A                  Sections 41(1)(b) read with Section 41A CrPC;

           (iii)   Issue a writ, order or direction in the nature of
                   Mandamus thereby directing the Superintendent of
                   Police, Barabanki, the opposite party No. 2, for
                   compliance of the provision of Sections 41 (1 )(b)
8
                   and 41A CrPC in the investigation of the impugned
                   FIR dated 21.12.2011 contained in Annexure No.
                   1 to this writ petition, lodged in crime No. 797/11,
                   under Sections 419/420 IPC, Zaidpur, District
                   Barabanki; and
c
           (iv)    Allow this writ petition with costs.

         3. The High Court, after hearing the parties as well as the
    State, dismissed the writ petition on 9.1.2012 and passed the
o   following order:

                "Heard learned counsel for the petitioner and learned
          Additional Government Advocate. Under challenge in the
          instant writ petition is FIR relating to Case Crime No. 797
          of 2011, under Sections 419 & 420 IPC, police station
E         Zaidpur, district Barabanki. We have gone through the FIR,
          which discloses commission of cognizable offence, as
          such, the same cannot be quashed. The writ petition lacks
          merit and is accordingly dismissed.

F                However, the petitioner being lady, it is provided that
          if she surrenders and moves application for bail the same
          shall be considered and decided by the courts below
          expeditiously."

       4. The appellant, complaining that she was falsely
G implicated in the case, has approached this Court contending
  that the High Court had failed to exercise its certiorari
  jurisdiction under Article 226 of the Constitution of India in not
  quashing the FIR dated 21.12.2011 and in refusing to grant
  anticipatory bail to the appellant. Appellant submitted that the
H
        KM. HEMA MISHRA v. STATE OF U.P.                       475
            [K.S. RADHAKRISHNAN, J.]
High Court ought to have issued a writ of mandamus directing           A
the Superintendent of Police, Barabanki to defer the arrest of
the appellant until the collection of credible evidence sufficient
for filing the charge-sheet, following the amended proviso to
Section 41(1)(b) read with Section 41A Cr.P.C.
                                                                       B
     5. The Secretary, U.P. Secondary Education Board,
Allahabad and the District School Inspector vide their letter
dated 8.12.2011 registered a complaint alleging that the
appellant had committed fraud and forgery in the matter of
preparation of documents of Government Office regarding
selection for the post of Assistant Teacher and, consequently, C
got appointment as the Assistant Teacher in Janpad Inter-
College at Harakh, District Barabanki, with payment of salary
amounting to Rs.1, 10,000/- from the Government exchequer.
On the basis of the FIR, Case Crime No. 797 of 2011 was
registered under Sections 419/420 IPC before the Police D
Station, Jaizpur, District Barabanki. After having come to know
of the registration of the crime, the appellant filed a
representation on 27 .12.2011 before the Superintendent of
Police, District. Barabanki and the Investigating Officer making
the following prayer:                                            E

     "As such through this application/representation the
     applicant prays that keeping in view the willingness of the
     applicant for cooperating in investigation and to appear
     before the investigating officer upon being called in case        F
     crime no. 797/11 u/Ss 419/420 IPC, PS Jaipdur, District
     Barabanki, .order for staying the arrest of applicant be
     passed so that compliance to the provision 41(1)(B)
     Section 41 (A) amended to CrPC 1973 be made."

      6. Since the appellant did not get any reply· to the said        G
 representation, she invoked the extraordinary jurisdiction of the
 High Court under Article 226 of the Constitution of India by filing
·Writ Petition Misc. Bench No. 171 of 2012 which .was
 dismissed, as already indicated, on 9.1.2012.
                                                                       H
     4 76       SUPREME COURT REPORTS                  [2014] 1 S.C.R.


A         7. When the matter came up for hearing before this Court,
     it passed an interim order on 1.3.2013, the operative portion
     of which reads as under:

            "Considering the facts and circumstances of the case, we
            are inclined to direct that in the event of arrest of the
B'
            petitioner, she shall be released on bail on furnishing
            personal bond of Rs.50,000/- (Fifty Thousand only) with two
            solvent sureties for the like amount to the satisfaction of
            the Trial Court, subject to the condition that she will join
            investigation as and when required and shall abide by the
c           provisions of Section 438(2) of the Code of Criminal
            Procedure."

        8. Shri Aseem Chandra, learned counsel appearing for the
  appellant, submitted that the High Court has committed an error
D in not quashing the FIR, since the registration of the crime was
  with ma/a fide intention to harass the appellant and in clear
  violation of the fundamental rights guaranteed to the appellant
  under Articles 14, 19 and 21 of the Constitution of India. Learned
  counsel submitted that the appellant was falsely implicated and
E that the ingredients of the offence under Sections 419/420 IPC
  were not prima facie made out for registering the crime.
  Learned counsel also pointed out that the High Court has not
  properly appreciated the scope of Sections 41(1)(b) and 41A
  CrPC, 1973 and that no attempt has been made to follow those
F statutory provisions by the State and its officials.

        9. Shri Gaurav Bhatia, learned MG, appearing for the
  State, submitted that the investigation was properly conducted
  and the crime was registered. Further, it was also pointed out
  that the President has also withheld the assent of the Code of
G Criminal Procedure (Uttar Pradesh Amendment) Bill, 2010,
  since the provisions of the Bill were found to be in contravention
  to Section 438 of the Cr.P.C. and hence the High Court rightly
  declined the stay sought for under Article 226 of the Constitution
  of India.
H
        KM. HEMA MISHRA v. STATE OF U.P.                    477
            [K.S. RADHAKRISHNAN, J.]
     10. Shri Siddharth Luthra, Additional Solicitor General, who   A
appeared on our request, submitted that the High Court can in
only rarest of rare cases grant pre-arrest bail while exercising
powers under Article 226 of the Constitution of India, since the
provision for the grant of anticipatory bail under Section 438
Cr.P.C. was consciously omitted by the State Legislature. The       B
legislative intention is, therefore, not to seek or provide pre-
arrest bail when the FIR discloses a cognizable offence. Shri
Luthra submitted that since there is a conscious withdrawal/
deletion of Section 438 CrPC by the Legislature from the Code
of Criminal Procedure, by Section 9 of the Criminal Procedure       c
(Uttar Pradesh) Amendment Act, 1976; the relief which
otherwise the appellant could not have obtained under the Code,
is sought to be obtained indirectly by invoking the writ
jurisdiction of the High Court, which is impermissible in law.

      11. Shri Luthra also submitted that since the appellant has D
no legal right to move for anticipatory bail and that practice is
not an integral part of Article 21 of the Constitution of India, the
contention that the High Court has failed to examine the
charges levelled against the· appellant, was ma/a fide or
violative of Articles 14 and 21 of the Constitution of India, does E
not arise. Shri Luthra also submitted that the High Court was
not correct in granting further reliefs after having dismissed the
writ petition and that, only in extraordinary cases, the High Court
could exercise its jurisdiction under Article 226 of t~e
Con~titution of India and the case in hand does not fall in that· F
category.

     12. I may indicate that the legal issues raised in this case
are no more res integra. All the same, it calls for a relook on
certain aspects which I may deal with during the course of the      G
judgment.

      13. I am conscious of the fact that since the provisions
similar to Section 438 Cr.P.C. being absent in the State of Uttar
Pradesh, the High Court is burdened with large number of writ
petitions filed under Article 226 of the Constitution of India      H
    478      SUPREME COURT REPORTS                   [2014] 1 S.C.R.

A seeking pre-arrest bail. Section 438 was added to the Code
  of Criminal Procedure in the year 1973, in pursuance to the
  recommendation made by the 41 st Law Commission, but in the
  State of Uttar Pradesh by Section 9 Criminal Procedure (Uttar
  Pradesh) Amendment Act, 1976, Section 438 was specifically
B omitted, the legality of which came up for consideration before
  the Constitution Bench of this Court in Kartar Singh v. State of
  Punjab (1994) 3 SCC 569 and the Court held that the deletion
  of the application of Section 438 in the State of Uttar Pradesh
  by Section 9 of the above mentioned Amendment Act does not
c offend either Article 14, Article 19 or Article 21 of the
  Constitution of India and the State Legislature is competent to
  delete that section, which is one of the matters enumerated in
  the concurrent list, and such a deletion is valid under Article
  254(2) of the Constitution of India.
D      14. I notice, therefore, as per the Constitution Bench, a
  claim for pre-arrest protection is neither a statutory nor a right
  guaranteed under Article 14, Article 19 or Article 21 of the
  Constitution of India. All the same, in Karatar Singh's case
  (supra), this Court in sub-para (17) of Para 368, has also stated
E as follows:

          "368 xxx:                     xxx:              xxx:
                 (17) Though it cannot be said that the High Court has
          no jurisdiction to entertain an application for bail under
F         Article 226 of the Constitution and pass orders either way,
          relating to the cases under the Act 1987, that power should
          be exercised sparingly, that too only in rare and
          appropriate cases in extreme circumstances. But the
          judicial discipline and comity of courts require that the High
G         Courts should refrain from exercising the extraordinary
          jurisdiction in such matters;

                xxx:                    xxx:
          15. The High Court of Allahabad has also taken the same
H
         KM. HEMA MISHRA v. STATE OF U.P.                      479
             [K.S. RADHAKRISHNAN, J.]
view in several judgments. Reference may be made to the               A
judgments in Satya Pal v. State of U.P. (2000 Cri.L.J. 569),
Ajeet Singh v. State of U.P. (2007 Cri.L.J. 170), Lalji Yadav
& Others v. State of U.P. & Another (1998 Cri.L.J. 2366),
Kamlesh Singh v. State of U.P. & Another (1997 Cri.L.J.
2705) and Natho Mal v. State of UP. (1~94 Cri.L.J. 1919).             B

        16. We have, therefore, no concept of "anticipatory bail"
  as understood in Section 438 of. the Code in the State of     \
                                                                  Uttar ·
  Pradesh. :1n Balchand Jain v. State of M.P. (1976) 4 SCC 572,
 this Court observed that "anticipatory bail" is a misnomer. Bail, C
  by itself, cannot be claimed as a matter of right under the Code
  of Criminal Procedure, 1973, except for bailable offences
  (Section 436 Cr.P.C., 1973). For non-bailable offences,
  conditions are prescribed under Sections 437 and 439 Cr.P.C.
  The discretion to grant bail in non-bailable offences remains
  with the Court and hence, it cannot be claimed as a matter of D
· right, but the aggrieved party can only seek a remedy and it is
  on the discretion of the Court to grant it or not. In this connection
  reference may also be made to the Judgment of the seven-
  Judge Bench of the Allahabad High Court in Smt. Amarawati
  and Ors. V. State of U.P. (2005) Cri.L.J. 755, wherein the Court, E
  while interpreting the provisions of Sections 41,2(c) and 157(1)
  CrPC as well as the scope of Sections 437 and 439, held as
  follows:

      "47. In view of the above we answer the questions referred       F
      to the Full Bench as follows:

       (1)    Even if cognizable offence is disclosed, in the FIR
             or complaint the arrest of the accused is not a must,
             rather the police officer should be guided by the
             decision of the Supreme Court in Joginder Kumar          G
             v. State ofU.P., 1994 Cr LJ 1981 before deciding
             whether to make an arrest or not.

       (2)   The High Court should ordinarily not direct any
             Subordinate Court to decide the bail application the      H
    480       SUPREME COURT REPORTS                  [2014] 1 S.C.R.


A                same day, as that would be interfering with the
                 judicial discretion of the Court hearing the bail
                 application. However, as stated above, when the
                 bail application is under Section 437 Cr.P.C.
                 ordinarily the Magistrate should himself decide the
B                bail application the same day, and if he decides in
                 a rare and exceptional case not to decide it on the
                 same day, he must record his reasons in writing.
                 As regards the application under Section 439
                  Cr.P.C. it is in the discretion of the learned
c                 Sessions Judge considering the facts and
                 circumstances whether to decide the bail
                 application the same day or not, and it is also in
                 his discretion to grant interim bail the same day
                 subject to the final decision on the bail application
                 later.
D
           (3)   The decision in Dr. Vinod Narain v. State of UP is
                 incorrect and is substituted accordingly by this
                 judgment."

E        17. This Court in Lal Kamlendra Pratap Singh v. State of
    Uttar Pradesh and Others (2009) 4 SCC 437, while affirming
    the judgment in Amarawati (supra), held as follows:

          "6. Learned counsel for the appellant apprehends that the
          appellant will be arrested as there is no provision for
F         anticipatory bail in the State of U.P. He placed reliance on
          a decision of the Allahabad High Court in Amarawati v.
          State of UP. in which a seven-Judge Full Bench of the
          Allahabad High Court held that the court, if it deems fit in
          the facts and circumstances of the case, may grant interim
G         bail pending final disposal of the bail application. The Full
          Bench also observed that arrest is not a must whenever
          an FIR of a cognizable offence is lodged. The Full Bench
          placed reliance on the decision of this Court in Joginder
          Kumar v. State of U.P. (1994) 4 SCC 260.
H
        KM. HEMA. MISHRA v. STATE OF U.P.                       481
             [K.S. RADHAKRISHNAN, J.]

    7. We fully agree with the view of the High Court in                A
    Amarawati case and we direct that the said decision be
    followed by all courts in U.P. in letter and spirit, particularly
    since the provision for anticipatory bail does not exist in
    U.P.
                                                                        B
    8. In appropriate cases interim bail should be granted
    pending disposal of the final bail application, since arrest
    and detention of a person can cause irreparable loss to a
    person's reputation, as held by this Court in Joginder
    Kumar case. Also, arrest is not a must in all cases of              C
    cognizable offences, and in deciding whether to arrest or
    not the police officer must be guided and act according
    to the principles laid down in Joginder Kumar case."

      18. Later, a two-Judge Bench of this Court in Som Mittal
v. State of Kamataka (2008) 3 SCC 753, while dealing with               D
an .order of the Karnataka High Court under Section 482 CrPC,
one qt the Judges made some strong observations as well as
recommendations to restore Section 438 in the State of U.P.
Learned Judges constituting the Bench also expressed
contrary views on certain legal issues, hence, the .matter was          E
later placed before a three-Judge Bench, the judgment of whic;h
is reported in same caption (2008) 3 sec 574, wherein this
Court opined that insofar as the observations,
recommendations and directions in paras 17 to 39 of the
concurrent judgment is concerned, they did not relate to the            F
subject matter of the criminal appeal and the directions given
were held to be obiter and were set aside.

      19. I notice in this case FIR was lodged ·for offences, under
Sections 419 and 420 IPC which carry a sentence of maximum
of three years and seven years respectively with or without fine.       G
Benefit of Section 41(a) Cr.P.C. must be available in a given
case, which provides that an investigating officer shall not arrest
the accused of such offences in a routine manrier and the arrest
be made, only after following the restrictions imposed under
                                                                        H
      482      SUPREME COURT REPORTS                    [2~14] 1 S.C.R.


 A Section 41 (b). The relevant provisions, as it stands now reads
   as follow:

            "41. When police may arrest without warrant.- (1) Any
            police officer may without an order from a Magistrate and
. B   .     without a warrant, arrest any person-

             (a)   who commits, in the presence of a police officer, a
                   cognizable offence;

             (b)   against whom a reasonable complaint has been
 c                 made, or credible information has been received,
                   or a reasonable suspicion exists that he has
                   committed a cognizable offence punishable with
                   imprisonment for a term which may be less than
                   seven years or which may extend to seven years
 D                 whether with or without fine, if the following
                   conditions are satisfied, namely:-

                   (i)     the police officer has reason to believe on
                          the basis of such complaint, information, or
                          suspicion that such person has committed
 E                        the said offence;

                   (ii)    the police officer is satisfied that such arrest
                          is necessary -

                   (a)    to prevent such person from committing any
  F
                          further offence; or

                    (b)   for proper investigation of the offence; or

                    (c)   to prevent such person from causing the
  G                       evidence of the offence to disappear or
                          tampering with such evidence in any manner,
                          or

                    (d)   to prevent such person from making any
                          inducement, threat or promise to any person
  H
       KM. HEMA MISHRA v. STATE OF U.P.                     483
           [K.S. RADHAKRISHNAN, J.]
                  acquainted with the facts of the case so as       A
                  to dissuade him from disclosing such facts
                  to the Court or to the police officer; or

            (e)   as unless such person is arrested, his
                  presence in the Court whenever required
                                                                    B
                  cannot be ensured,

    and the police officer shall record while making such arrest,
    his reasons in writing:

    Provided that a police officer shall, in all cases where the    c
    arrest of a person is not required under the provisions of
    this sub-section; record the reasons in writing for not
    making the arrest."

     20. Amended provisions make it compulsory for the police
                                                                    0
to record the reasons for making arrest as well as for not
making an arrest in respect of a cognizable offence for which
the maximum sentence is upto seven years. Reference in this
connection may also be made to Section 41 A inserted vide Act
5 of 2009 w.e.f. 01.11.2010, which reads as follows:
                                                                    E
    "41A. Notice of appearance before police officer - (1)
     The police officer shall, in all cases where the arrest of a
     person is not required under the provisions of sub-section
     (1) of section 41, issue a notice directing the person
     against whom a reasonable complaint has been made, or          F
     credible information has been received, or a reasonable
     suspicion exists that he has committed a cognizable
     offence, to appear before him or at such other place as
    -may be specified in the notice.

    (2) Where such a notice is issued to any person, it shall       G
    be the duty of that person to comply with the terms of the
    notice.

    (3) Where such person complies and continues to comply
    with the notice, he shall not be arrested in respect of the . H
    484       SUPREME COURT REPORTS                  [2014] 1 S.C.R.


A         offence referred to in the notice unless, for reasons to be
          recorded, the police officer is of the opinion that he ought
          to be arrested.

          (4) Where such person, at any time, fails to comply with
          the terms of the notice or is unwilling to identify himself,
B
          the police officer may, subject to such orders as may have
          been passed by a competent Court in this behalf, arrest
          him for the offence mentioned in the notice."

       21. Above mentioned provisions make it compulsory for
C the police to issue a notice in all such cases where arrest is
  not required to be made under Clause (b) of sub-section (1) of
  the amended Section 41. But, all the same, unwillingness of a
  person who has not been arrested to identify himself and to
  whom a notice has been issued under Section 41A, could be
D a ground for his arrest. Legislation has laid down various
  parameters, warranting arrest of a person, which itself is a
  check on arbitrary or unwarranted arrest and the right to
  personal liberty guaranteed under Article 21 of the Constitution
  of India.
E
         22. I may, however, point out that there is unanimity in the
   view that in spite of the fact that Section 438 has been
 · specifically omitted and made inapplicable in the State of Uttar
   Pradesh, still a party aggrieved can invoke the jurisdiction of
   the High Court under Article 226 of the Constitution of India,
F being extraordinary jurisdiction and the vastness of the powers
   naturally impose considerable responsibility in its application.
   All the same, the High Court has got the power and sometimes
   duty in appropriate cases to grant reliefs, though it is not
   possible to pin-point what are the appropriate cases, which
G have to be left to the wfsdom of the Court exercising powers
   under Article 226 of the Constitution of India.

       23. I am also faced with the situation that on dismissal of
  the writ by the High Court under Article 226 of the Constitution
H of India, while examining the challenge for quashing the FIR or
         KM. HEMA MISHRA v. STATE OF U.P.                         485
             [K.S. RADHAKRISHNAN, J.]
a charge-sheet, whether the High Court could grant further relief         A
against arrest ·for a specific period or till the completion of the
trial. This Court in State of Orissa v. Madan Gopal Rungta
reported in AIR 1952 SC 12, while dealing with the scope of
Article 226 of the Constitution, held as follows :-
                                                                          B
     "Article 226 cannot be used for the purpose of giving
     interim relief as the only and final relief on the application.
     The directions had been given here only to circumvent the
     provisions of Section 80 of the Civil Procedure Code, and
     that was not within the scope of Article 226. An interim             C
     relief can be granted only in aid of and as ancillary to the
     main relief which may be available to the party on final
     determination of his rights in a suit or proceeding. If the
     Court was of opinion that there was no other convenient
     or adequate remedy open to the petitioners, it might have
     proceeded to investigate the case on its merits and come             D
     to a decision as to whether the petitioners succeeded in
     establishing that there was an infringement of any of their
     legal rights which entitled them to a writ of mandamus or
     any other directions of a like nature; and pending such
     determiriation it might have made a suitable interim order           E
     for maintaining the status quo ante. But when the Court
     declined to decide on the rights of the parties and
     expressly held that they should be investigated more
     properly in a civil suit, .it could not, for the purpose of
     facilitating the institution of such suit, issue directions in the   F
     nature of temporary injunctions, under Article 226 of the
     Constitution. The language of Article 226 does not permit
     such an action."        ·

        24. The language of Article 226 does not permit such an           G
· action and once the Court finds no merits in the challenge, writ
  petition will have to be dismissed and the question of granting
  further relief after dismissal of the writ, does not arise.
  Consequently, once a writ is dismissed, all the interim reliefs
  granted would also go.
                                                                          H
    486      SUPREME COURT REPORTS                    (2014] 1 S.C.R.


A      25. This Court has already passed an interim order on
  1.3.2013 granting bail to the appellant on certain conditions.
  The said order will continue till the completion of the trial.
  However, if the appellant is not co-operating with the
  investigation, the State can always move for vacating the order.
B The appeal is accordingly dismissed as above.

       A.K. SIKRI, J. 1. I have carefully gone through the judgment
  authored by my esteemed brother, Justice Radhakrishnan. I
  entirely agree with the conclusions arrived at by my learned
C brother in the said judgment. At the same time, I would also like
  to make some observations pertaining to the powers of High
  Court under Article 226 of the Constitution of India to grant relief
  against pre-arrest (commonly called as anticipatory bail), even
  when Section 438,Cr.P.C. authorizing the Court to grant such
  a relief is specifically omitted and made inapplicable in so far
D as State of Uttar Pradesh is concerned. I would like to start with
  reproducing the following observations in the opinion of my
  brother, on this aspect which are contained in paragraph 21 of
  the judgment. It reads as under:

E                "We may, however, point out that there is unanimity
          in the view that in spite of the fact that Section 438 has
          been specifically omitted and made inapplicable in the
          State of Uttar Pradesh, still a party aggrieved can invoke
          the jurisdiction of the High Court under Article 226 of the
          Constitution of India, being extraordinary jurisdiction and
F
          the vastness of the powers naturally impose considerable
          responsibility in its application. All the same, the High Court
          has got the power and sometimes duty in appropriate
          cases to grant reliefs, though it is not possible to pin-point
          what are the appropriate cases, which we have to leave
G
           to the wisdom of the Court exercising powers under Article
           226 of the Constitution of India."

       2. Another aspect which is highlighted in the judgment
  rendered by Justice Radhakrishnan is that many times in the
H Writ Petition filed under Article 226 of the Constitution of India
KM. HEMA MISHRA v. STATE OF U.P. [A.K. SIKRI, J.] 487


seeking quashing of the FIR or the charge-sheet, the petitioners          A
pray for interim relief against arrest. While entertaining the Writ
Petition the High Court invariably grants such an interim relief.
It is rightly pointed out that once the Writ Petition claiming main
relief for quashing of FIR or the charge-sheet itself is dismissed,
the question of granting further relief after dismissal of the Writ       B
Petition, does not arise. It is so explained in para 22 and 23 of
the judgment of my learned brother.

     3. I would like to remark that in the absence of any
provisions like Section 438 of Cr.P.C. applicable in the State            c
of Uttar Pradesh, there is a tendency on the part of the accused
persons, against whom FIR is lodged and/or charge-sheet is
filed in the Court to file Writ Petition for quashing of those
proceedings so that they are able to get protection against the
arrest in the interregnum which is the primary motive for filing          0
such petitions. It is for this reason that invariably after the lodging
of FIR, Writ Petition under Article 226 is filed with main prayer
to quash those proceedings and to claim interim relief against
pre-arrest in the meantime or till the completion of the trial.
However, the considerations which have to weigh with the High             E
Court to decide as to whether such proceedings are to be
quashed or not are entirely different than that of granting interim
protection against the arrest. Since the grounds on which such
an FIR or charge sheet can be quashed are limited, once the
Writ Petition challenging the validity of FIR or charge-sheet is
dismissed, the grant of relief, incidental in nature, against arrest      F
would obviously not arise, even when a justifiable case for grant
of anticipatory bail is made out .

     4. It is for this reason, we are of the opinion that in
appropriate cases the High Court is empowered to entertain                G
the petition under Article 226 of the Constitution of India where
the main relief itself is against arrest. Obviously, when
provisions of Section 438 of Cr.P.C. are not available to the
accused persons in the State of Uttar Pradesh, under the
normal circumstances such an accused persons would not be                 H
    488      SUPREME COURT REPORTS                    [2014] 1 S.C.R.


A entitled to claim such a relief under Art. 226 of the Constitution.
  It cannot be converted into a second window for the relief which
  is consciously denied statutorily making it a case of casus
  omissus. At the same tfme, as rightly observed in para 21
  extracted above, the High Court cannot be completely denuded
B of its powers under Article 226 of the Constitution, to grant such
  a relief in appropr1ate and deserving cases; albeit this power
  is to be exercised with extreme caution and sparingly in those
  cases where arrest of a person would lead to total miscarriage
  of justice. There may be cases where pre-arrest may be entirely
C unwarranted and lead to disastrous consequences. Whenever
  the High Court is convinced of such a situation, it would be
   appropriate to grant the relief against pre-arrest in such cases.
   What would be those cases will have to be left to the wisdom
   of the High Court. What is emphasized is that the High Court
   is not bereft of its powers to grant this relief :.;nder Art. 226 of
0
   the Constitution.

          A Bench of this Court, headed by the then Chief Justice .
          Y.V.Chandrachud, laid down first principles of granting
          anticipatory bail in the Gurbaksh Singh v. State of Punjab
E         1980 Crl.L.J. 417 (P&H), reemphasizing that liberty... - 'A
          person who has yet to lose his freedom by being arrested
          asks for freedom in the event of arrest. That is the stage
          at which it is imperative to protect his freedom, in so far
          as one may, and to give full play to the presumption that
F         he is innocent.

        5. In Joginder Kumar v. State of UP. and Others, 1994
    Cr L.J. 1981, the Supreme Court observed:
                "No arrest can be made because it is lawful for the
G         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. Arrest and detention in
          police lock-up of a person can cause incalculable harm to
H         the reputation and self esteem of a person. No arrest can
KM. HEMA MISHRA v. STATE OF U.P. [A.K. SIKRI, J.] 489


     be made in a routine manner on a mere allegation of A
     commission of an offence made against a person. It would
     be prudent for a police officer in the ·interest of protection
     of the constitutional rights of a citizen and. perhaps in his
     own interest that no arrest should be made without a .
     reasonable satisfaction reached after some investigation B
     as to the genuineness of a complaint and a reasonable
     belief both as to the person's complicity and even so as
     to the need to effect arrest."

     6. It is pertinent to explain there may be imminent need to
grant protection against pre-arrest. The object of this provision      C
is to relieve a person from being disgraced by trumped up
charges so that liberty of the subject is not put in jeopardy on
frivolous grounds at the instance of the unscrupulous or
irresponsible persons who may be in charge of the prosecution.
An order of anticipatory bail does not in any way, directly or         D
indirectly; take away for the police their right to investigate into
charges made or to be made against the person released on
bail.

   . 7. The purposes for which the provisions of anticipatory          E
bail are made are quite obvious. One of the purposes of the
arrest is that the accused should be available to the investigating
machinery for further investigation and questioning whenever
he is required. Another purpose is that the trial should not be
jeopardized and for this purpose the restrictions on the               F
movements of the accused are necessary. The genuineness
of the alleged need for police custody has to be examined and
it must be balanced against the duty of courts to uphold the
dignity of every man and to vigilantly guard the right to liberty
without jeopardizing the state objective of maintenance of law         G
and order.

     8. I· would also like to reproduce certain paragraphs from
Kartar Singh and Ors. V. State of Punjab (1994) 3 SCC 569,
wherein Justice K.Ramaswamy, speaking for the Court,
                                                                       H
    490      SUPREME COURT REPORTS                    [2014] 1 S.C.R.

A discussed the importance of life and liberty in the following
  words.

                 "The foundation of Indian political and social
          democracy, as envisioned in the preamble of the
B         Constitution, rests on justice, equality, liberty and fraternity
          in secular and socialist republic in which every individual
          has equal opportunity to strive towards excellence and of
          his dignity of person in an integrated egalitarian Bharat.
          Right to justice and equality and stated liberties which
          include freedom of expression, belief and movement are
c         the means for excellence. The right to life with human dignity
          of person is a fundamental right of every citizen for pursuit
          of happiness and excellence. Personal freedom is a basic
          condition for full development of human personality. Art.21
          of the Constitution protects right to life which is the most
D         precious right in a civilized society. The trinity i.e. liberty,
          equality and fraternity always blossoms and enlivens the
          flower of human dignity. One of the gifts of democracy to
          mankind is the right to personal liberty. Life and personal
          freedom are the prized jewels under Art.19 conjointly
E         assured by Art.20(3), 21 and 22 of the Constitution and
          Art.19 ensures freedom of movement. Liberty aims at
          freedom not only from arbitrary restraint but also to secure
          such conditions which are essential for the full development
          of human personality. Liberty is the essential concomitant
F          for other rights without which a man cannot be at his best.
           The essence of all civil liberties is to keep alive the
           freedom of the individual subject to the limitations of social
           control envisaged in diverse articles in the chapter of
           Fundamental Rights Part Ill in harmony with social good
G          envisaged in the Directive Principles in Part IV of the
           Constitution. Freedom cannot last long unless it is coupled
           with order. Freedom can never exist without order.
           Freedom and order may coexist. It is essential that
           freedom should be exercised under authority and order
H          should be enforced by authority which is vested solely in .
KM. HEMA MISHRA v. STATE OF U.P. [A.K. SIKRI, J.] 491


   the executive. Fundamental rights are the means and                 A
   directive principles are essential ends in a·welfare State.
   The evolution of the State from police State to a welfare
   State is the ultimate measure and accepted standard of
   democratic society which is an avowed constitutional
   mandate. Though one of the main functions of the                    B,
   democratic Government is to safeguard liberty of the
   individual, unless its exercise is subject to social control,
   it becomes anti-social or undermines the security of the
   State. The Indian democracy wedded to rule of law aims
   pot only to protect the fundamental rights of its citizens but      c
   also to establish an egalitarian social order. The individual
   has to grow within the social confines preventing his
   unsocial or unbridled growth which could be done by
   reconciling individual liberty with social control. Liberty
   must be controlled in the interest of .the society but the
                                                                       0
   social interest must never be overbearing to justify total
   deprivation of individual liberty. Liberty cannot stand alone
   but must be paired with a companion virtue; liberty and
   morality; liberty and law; liberty and justice; liberty and
   common good; liberty and responsibility which are
   concomitants for orderly progress and social stability. Man         E
    being a rational individual has to life in harmony with equal
    rights of others and more differently for th~ attainment of
   antithetic desires. This intertwined network is difficult to
   delineate within defined spheres of conduct within which
   freedom of action may be confined. Therefore, liberty               F
   would not always be an absolute license but must arm itself
   within the confines of law. In other words, here can be no
   liberty without social restraint. Liberty, therefore, as a social
   conception is a right to be assured to all members of a
   society. Unless restraint is enforced on and accepted by            G
   all members of the society, the liberty of some must involve
   the oppression of others. If liberty be regarded a social
   order .. the problem of establishing liberty must be a
    problem of organizing restraint which society controls over
   the individual. Therefore, liberty of each citizen is borne of      H
    492       SUPREME COURT REPORTS                    [2014] 1 S.C.R.


A         and must be subordinated to the liberty of the greatest
          number, in other words common happiness as an end of
          the society, lest lawlessness and anarchy will tamper social
          weal and harmony and powerful courses or forces would
          be at work to undermine social welfare and order. Thus
B         the essence of civil liberty is to keep alive the freedom of
          the individual subject to the limitation of social control which
          could be adjusted according to the needs of the dynamic
          social evolution.

          The modem social evolution is the growing need to keep
c         individual to be as free as possible, consistent with his
          correlative obligation to the society. According to Dr.
          Ambedkar in his closing speech in the Constituent
          Assembly, the principles of liberty, equality and fraternity
          are not to be treated as separate entities but in a trinity.
D         They form the union or trinity in the sense that to divorce
          one from the other is to defeat the very purpose of
          democracy. Liberty cannot be divorced from equality.
          Equality cannot be divorced from liberty. Nor can equality
          and liberty be divorced from fraternity. Without equality,
E         liberty would produce supremacy of law. Equality without
          liberty would kill individual initiative. Without fraternity,
           liberty and equality would not become a natural course of
          things. Courts, as sentinel on the qui vive, therefore, must
          strike a balance between the changing needs of the society
F         for peaceful transformation with orders and protection of
          the rights of the citizen.(Para 374)

       9. It was also held in that judgment that the High Courts
  under Art.226 had the right to entertain writ petitions for
G quashing of FIR and granting of interim protection from arrest.
  This position, in the context of contours of Art.226, is stated as
  follows in the same judgment:

                "From this scenario, the question emerges whether
          the High Court under Art.226 would be right in entertaining
H         proceedings to quash the charge-sheet or to grant bail to
KM. HEMA MISHRA v. STATE OF U.P. [A.K. SIKRI, J.] 493


    a person accused of an offence under the Act or other A
    offences committed during the course of the same
   'transaction exclusively triable by the Designated Court.
    Nothing is more striking than the failure of law to evolve a
    consistent jurisdictional doctrine or even elementary
    principles, if it is subject to conflicting or inconceivable or B
    inconsistent result which lead to uncertainty, incongruity and
    disbelief in the efficacy of law. The jurisdiction and power
    of the High Court under Art.226 of the Constitution is
    undoubtedly constituent power and the High Court has
    untrammeled powers and jurisdiction to issue any writ or c
    order or direction to any person or authority within its
    territorial jurisdiction for enforcement of any of the
    fundamental rights or for any other purpose. The legislature
    has no power to divest the court of the constituent power
    engrafted under Art.226. A superior court is deemed to 0
    have general jurisdiction and the law presumes that the
    court has acted within its jurisdiction. This presumption is
    denied to the inferior courts. The judgment of a superior
    court unreservedly is conclusive as to all relevant matters
    thereby decided, while the judgment of the inferior court E
    involving a question of jurisdiction is not final. The superior
    court, therefore, has jurisdiction to determine its own
    jurisdiction, may be rightly or wrongly. Therefore, the court
    in an appropriate proceeding may erroneously exercise
    jurisdiction. It does not constitute want of jurisdiction, but
    it impinges upon its propriety in the exercise of the F
    jurisdiction. Want of jurisdiction can be established solely
    by a superior court and that in practice no decision can
    be impeached collaterally by an inferior court. However,
    acts done by a superior court are always deemed valid
    wherever they are relied upon. The exclusion thereof from G
    the rule of validity is indispensable in its finality. The
    superior courts, therefore, are the final arbiters of the
    validity of the acts done not only by other inferior courts or
    authorities, but also their own decisions. Though they are
     immune from collateral attack, but to avoid confusion the H
    494       SUPREME COURT REPORTS                    [2014] 1 S.C.R.


A         superior court's .decisions lay down the rules. of validity; are
          not governed by those rules. The valid decision is not only
          conclusive, it may affect, but it is also conclusive in
          proceedings where it is sought to be collaterally
          impeached. However, the term conclusiveness may
B         acquire other specific meanings. It may mean that the
          finding upon which the decision is founded as distinct or
          it 1s the operative part or has to be conclusive or these
          findings bind only parties on litigated disputes or that the
          organ which has made the decision is itself precluded from
c         revoking, rescinding or otherwise altering it."

       10. It would be pertinent to mention here that in light of
  above mentioned statements and cases, the High Court would
  not be incorrect or acting out of jurisdiction if it exercises its
  power under J\rt.226 to issue appropriate writ or direction or
D order in exceptional cases at the behest of a person accused
  of an offence triable under the Act or offence jointly triable with
  the offences under the Act.

        11. It is pertinent to mention that though the High Courts
E have very wide powers under Art.226, the very vastness of ttle
   powers imposes on it the responsibility to use them with
   circumspection and in accordance with the judicial
   consideration and well established principles, so much so that
   while entertaining writ petitions for granting interim protection
;: from arrest, the Court would not go on to the extent of including
   the provision of anticipatory bail as a blanket provision.

        12. Thus, such a power has to be exercised very cautiously
  keeping in view, at the same time, that the provisions of Article
  226 are a devise to advance justice and not to frustrate it. The
G powers are, therefore, tcf be exercised to prevent miscarriage
  of justice and to prevent abuse of process of law by authorities
  indiscriminately making pre;arrest of the accused persons. In
  entertaining such a petition under Art.226, the High Court is
  supposed to balance the two interests. On the one hand, the
H Court is to ensure that such a power under Art.226 is not to be
                         .,
KM. HEMA MISHRA v. STATE OF U.P. [A.K. S!KRI, J.] 495


exercised liberally so as to convert it into Section 438,Cr.P.C.       A
proceedings, keeping in mind that when this provision is
specifically omitted in the State of Uttar Pradesh, it cannot be
resorted to as to back door entry via Art.226. On the other hand,
wherever the High Court finds that in a given case if the
protection against pre-arrest is not given, it would amount to         B
gross miscarriage of justice and no case, at all, is made for
arrest pending trial, the High Court would be free to grant the
relief in the nature of. anticipatory bail in ·exercise of its power
under Art. 226 of the Constitution. It is again clarified that this
power has to be exercised sparingly in those cases where it            c
is absolutely warranted and justified.

D.G.                                          Appeal dismissed.