Holding

The Supreme Court held that the High Court’s order taking cognizance under the Karnataka Shops and Commercial Establishments Act was not infirm and that Section 482 CrPC cannot be used to quash the complaint, leading to dismissal of the appeal.

Summary

The appellant, a Managing Director of a company, was charged under Sections 25 and 30(3) of the Karnataka Shops and Commercial Establishments Act, 1961 after a woman employee was raped and killed while travelling to work. He filed a petition under Section 482 of the CrPC seeking quash of the complaint, claiming exemption under Section 3(1)(h) of the Act which excludes persons in management from its purview. The High Court rejected the petition and retained cognizance. The Supreme Court examined whether the Managing Director falls within the exemption and reiterated that the inherent power under Section 482 is extraordinary, to be used sparingly and not to pre‑empt a trial. It held that the High Court’s order was not infirm and that the appeal must fail. The Court also used the judgment to comment on the misuse of Section 482 in Uttar Pradesh and recommended restoring anticipatory bail there. The appeal was dismissed.

Issues considered

The applicability of Section 3(1)(h) of the Karnataka Shops and Commercial Establishments Act to a Managing Director.
Whether the High Court could quash the complaint and cognizance under Section 482 CrPC.
The proper scope and limits of the inherent power under Section 482 CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 155(2), s. 156(1), s. 2(c), s. 41, s. 438, s. 439, s. 482
Indian Penal Code, 1860s. 302
Karnataka Shops and Commercial Establishments Act, 1961s. 25, s. 2(h), s. 30(1), s. 30(3), s. 3(1)(h)

Subjects

Section 482 CrPCKarnataka Shops and Commercial Establishments ActManaging Director exemptionInherent jurisdictionQuashing of criminal proceedingsAnticipatory bailUttar PradeshJudicial discretionRarest of rare cases

Judgment

~
.....--·
[2008] 2 S.C.R. 323
_,. ..,..
SOM MITTAL A
v.
GOVT. OF KARNATAKA
(Criminal Appeal No. 206 of 2008)
JANUARY 29, 2008
B.
~
[H.K. SEMA AND MARKANDEY KAT JU, JJ.]
"I

Code of Criminal Procedure, 1973 - s. 482 - Woman
employee of company of which Appellant was the Managing
Director was raped and killed during her travel from house to c
workplace by driver of the vehicle in which she was travelling-
Complaint filed against Appellant alleging violation of ss. 25
and 30 of the Act-: Magistrate took cognizance of the offence
alleged - Petition under s. 482, CrPC for quashing of the
complaint and the cognizance on the ground lhat Managing
D
Director does not come within purview of the Act - Dismissal
of, by High Court-Justification of-Held: Justified- Per Serna,
-)'....
J, Power u/s. 482 is to be exercised sparingly with
circumspection and in the rarest of rare cases - Such power
is not intended to scuttle justice at the threshold - Per Katju,
J., While power under s.482 CrPC is to be exercised sparingly, E
it cannot be said that it should be exercised in the "rarest of
the rare cases" - Expression "rarest of the rare cases" was
used in connection with s.302 /PC to hold that death penalty
... ...._
should only be imposed in rarest of rare cases and cannot be
extended to a petition under s. 482 CrPC - Kamataka Shops F
and Commercial Establishments Act, 1961 - ss. 2(1 )(h),
25,30(1) and 30(3).
Code of Criminal Procedure, 1973 - s. 438 - State of
Uttar Pradesh - Deletion of provision for anticipatory bail under
~ -(
s.438 CrPC by s.9 of the U.P Act 16 of 1976 - Difficulties G
arising therefrom- Per Katju, J., Strong recommendation made
to U.P Government to immediately issue an Ordinance to
restore the provision for anticipatory bail by repealing Section
9 of UP Act 16of1976, and empowering the Allahabad High
323 H
324 SUPREME COURT REPORTS [2008] 2 S.C.R.

-r .....
A Court as well as the Sessions Courts in U. P to grant
anticipatory bail.
A woman employee of the company, of which
Appellant was the Managing Director, was raped and killed
during her travel from house to workplace, by driver of
8 the vehicle, in which she was travelling. On the allegation,
that adequate security was not provided to the said
woman employee during her travel from home to
workplace, a complaint was filed against the Appellant
alleging violation of ss.25 and 30(3) of the Karnataka
C Shops and Commercial Establishments Act, 1961. The
Magistrate took cognizance of the offence alleged. A
petition under s.482, CrPC for quashing of the complaint
and the cognizance was filed before the High Court. High
Court dismissed the petition, but. altered the offence in
D re~pect of which cognizance was taken· as one under s.
25 r/w ~.30(1) of t!'le Act.
The contention of the Appellant is that he is Managing
Director of the company concerned and, therefore, entitled
for exemption under s.3(1 )(h) of the Act and consequently
E not liable for prosecution under s.25 r.w. s.30(1) of the Act.
Dismissing the appeal, the Court
a
HELD (Per Serna J.): 1.1. In catena of decisions this
Court has deprecated the interference by the High Court
F i.n exercise of its inherent powers under s.482 of the Code
in a routine mariner. It has been consistently held that the
power under s.482. must be exercised sparingly, with
circumspection and in rarest of rare cases. Exercise of
inherent power under s.482 of the Code of Criminal
G Procedure is not the rule but it is an exception. The
exception is applied only when it is brought to the notice
of the Court that grave miscarriage of justice would be
committed if the trial is allowed to proceed where the
accused would be harassed unnecessarily if the trial is
H allowed to linger when prima facie it appears to Court that
SOM MITTAL v. GOVT. OF KARNATAKA 325

the trial would likely to be ended in acquittal. In other A
words, the inherent power of the Court under s.482 of the
Code of Criminal Procedure can be invoked by the High
Court either to prevent abuse of process of any Court or
otherwise to secure the ends of justice. The High Court
will not be justified in embarking upon an inquiry as to B
the reliability or genuineness or otherwise of the
allegations made in the F.l.R. or the complaint and that
the extra-ordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to its
whims and caprice. The power under s.482 is not intended c
to scuttle justice at the threshold. [Paras 10, 11, 19]
(330-G; 331-A, 8, C, D, E; 335-A]
1.2. There is no infirmity in the order passed by the
High Court warranting interference in exercise of power
under Article 136 of the Constitution. The trial Court shall D
decide the matter expeditiously uninfluenced by any
observations made by this Court or the High Court. The
Trial Court shall decide the maintainability of the
complaint at ~he time of consideration of the charge.
[Paras 21, 22] (335-c,·o, E] E
East India Commercial Co. Ltd., Calcutta & Anr. v. The
Collector of Customs, Calcutta (1963) 3 SCR 338; T. Prem
Sagar v. The Standard Vacuum Oil Company Madras & Ors.
_ _i_ (1964) 5 SCR 1030; Boothalinga Agencies v. V. T. C.
Poriaswami Nadar (1969) 1 SCR 65; and S. M. S. F
Pharmaceuticals Ltd. v. Neeta Bhalla & Anr. (2005) 8 SCC
89- distinguished.
State of Bihar v. J.A. C. Sa/danha (1980) 1 SCC 554;
Hazari Lal Gupta v. Rameshwar Prasad (1972) 1 SCC 452; G
Jehan Singh v. Delhi Administration (197 4) 4 SCC 522;

- Kurukshetra University v. State of Haryana (1977) 4 SCC 451;
State of Bihar v. Murad Ali Khan (1988) 4 SCC 655 - referred
to.
HELD (Per Katju, J) (Concurring with the conclusion, H
326 SUPREME COURT REPORTS [2008] 2 S.C.R.

A but partly differing with the reasons):
1.1. The Managing Director is surely a person
occupying a position of management in the establishment ,...
and hence s.3(1)(h) of the Karnataka Shops and I
Commercial Establishments Act, 1961 is clearly attracted
8 to the facts of this case. [Para 9] [337-F, G]

1.2. There seems to be some apparent conflict
between s.30 and s.3(1 )(h) of the Act since while the latter
provision states that a person in a position of management
c is outside the purview of the Act, it is contended by the
respondent that the former provision includes a person
in management also since the word "whoever" in s.30(1)
is very wide and is broad enough to include the Managing
Director also. [Para 12] [338-C, D]
D 1.3. Since s.30 is also part of the Act, hence prima
facie it seems that a Managing Director does not come
within the purview of the Act in view of s.3(1)(h). It prima
facie seems that only persons not in a position of
management will come within the purview of the Act, and
E hence they alone can be penalized under s.30. If persons
in a position of management are also intended to be
penalized then that will require an amendment to the Act,
in particular s.3(1 )(h) thereof. The Court cannot amend an
Act of the legislature, and cannot fill up a casus omissus.
F However, no final opinion is being expressed on the
merits of the matter, and it is left open f9r the court
concerned to interpret the various provisions of the Act.
[Paras 13, 14] [338-D, E, F, G]
2.1. While the power under s.482 CrPC is to be
G exercised sparingly, it cannot be said that it should be
exercised in the "rarest of the rare cases. The expression
'rarest of the rare cases' was used in connection with
Section 302 IPC to hold that death penalty should only be
imposed in rarest of rare cases vide Constitution Bench
H decision of this Court in Bachan Singh's case. This
..
--(.-,

SOM MITTAL v. GOVT. OF KARNATAKA 327

~ . ..- expression cannot be extended to a petition under A
Section 482 Cr.P.C .. Though the power under Section 482
Cr.P.C. should be used sparingly, yet there may be
occasions where in the interest of justice the power
should be exercised. [Paras 15, 16] [338-G, H; 339-A, 8, CJ
2.2. In this connection, reference can be made to the
B

~
~ situation prevailing in the State of Uttar Pradesh where
due to deletion of the provision for anticipatory bail under
Section 438 Cr.P.C. by Section 9 of the U.P. Act 16of1976,
huge difficulties have been created both for the public a~
well as for the Allahabad High Court. The result is that c
. thousands of petitions under Section 482 are filed every
year in Allahabad High Court praying for stay of arrest or
for quashing the FIR, because in the absence of the,
provision of anticipatory bail many persons who are
innocent cannot get anticipatory bail even though the FIR D
filed against them may be frivolous and/or false. Often
---'- false FIRs are filed e.g. under s. 498A IPC, s.3/4 Dowry
Prohibition Act etc. Often aged grandmothers, uncles,
aunts, unmarried sisters etc. are implicated in such cases,
even though they may have nothing to do with the offence .. E
Even if such persons get regular bail under Section 439,
before that they will have to go to jail, and thus their
reputation in society may be irreparably tarnished.
Sometimes unmarried girls have to go to jail, and this may
..,, ....... affect their chances of marriage. This is in violation of the F
decision of this Court in Joginder Kumar's case, and the
difficulty can be overcome by restoring the provision
for anticipatory bail. [Paras 17, 18, 33] [339-C, D, E, F]
[343-D, E, F]
2.3. The Allahabad High Court had on several G
. , i'
occasions requested the State Government to issue an
Ordinance immediately to restore the provision for
anticipatory bail, (e.g. in Vijay Kumar Verma's case) but all
its requests seem to have fallen on deaf ears. It seems
that there is an impression in some quarters that if the H
328 SUPREME COURT REPORTS [2008J 2 S.C.R

A provision for antidpatoiry baU is restored crimes wm
increase. This is a specious argument, since it has not
made much difference to the crime position in the States·
where the provision for antif;ipatory bail exists~ even in
terrorist affected States. No doubt the recomme~datiora
B of a Court is not binding on the State Government/State
Legislature but still it should be seriously considered, and
not simply ignored. The Court usually makes a
recommendation when it feels that the public is facing
some hardship. Such ·recommendation should, therefore,
C be given respect and serious consideration. [Para 35]
(344-A, B, C, D]
. 2.4. A strong recommendation is therefore being
made to the U.P. Government to immediately issue an
Ordinance to restore the provision for anticipatory bail by
o repealing Section 9 of U.P. Act No. 16 of 1976, and
empowering the Allahabad High Court as well as the
Sessions Courts in U.P. to grant anticipatory .bail.
[Para 36] (344-D, -El .
I
2.5. In Smt. Amarawati's case, the Seven Judge Full
· E Bench of Allahabad High Court has mentioned that the
Sessions Judge while considering a bail application
under Section 439 Cr.P.C. can grant interim bail till the final
disposal of the bail application subsequ~ntly. However,
despite this Seven Judge Full Bench judgment, the
F Session Courts in U.P. are not granting interim bail
pending disposal of the final bail application even in
appropriate cases, which i.s wholly improper. Decisions
of this Court and of the High Court must be respected
and carried out by the sub-ordinate courts punctually and
G faithfully. It is, therefore, directed that Amarawati's case
must be implemented in letter and spirit by the ;Sessions
Courts in U.P. [Paras 37, 38] [344-E, F, G, H; 345-A] ·
Bachan Singh vs. State of Punjab) AIR 1980·.. sc 898;
Joginder Kumar vs. State of U. P and others AIR 1994 SC 1349;
H Maneka Gandhi vs. Union of India AIR 1978 SC 597; Balcharid
SOM MITTAL v. GOVT. OF KARNATAKA 329
[H.K. SEMA, J.]

Jain vs. State of Madhya Pradesh AIR 1977 SC 366; Gurbaksh A
Singh vs. State of Punjab AIR 1980 SC 1632; Vijay Kumqr
Verma vs. State of UP, 2002 Cr.L.J. 4561 and Smt. Amarawati
and another vs. State of UP (2005 Crl. L.J. 755)- referred to'.
Ghani vs. Jones (1970) 1 Q.B. 693 (709)- referred to.
B
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 206 of 2008.
From the final Judgment and Order dated 28.03.2006 of
the High Court of Karnataka at Bangalore in Criminal Petition
No. 1535 of 2006 in CC No. 5530 of 2005. c
~
• K.K. Venugopal, K.G. Raghavan, Amit Dhingra and Aman
Leekha (for M/s. Dua Associates) for the Appellant.
Anitha Shenoy and Sanjay R. Hegde for the Respondent.
D
The Judgment of the Court was delivered by
-""·~
H.K. SEMA, J. (1) Leave granted.
(2) Heard learned counsel for the parties.
(3) This appeal is directed against the judgment and order E
dated 28th March, 2006 passed by the High Court of Karnataka
at Bangalore in Criminal Petition No. 1535 of 2006 filed under
Section 482 of the Code of Criminal Procedure with a prayer to
quash cognizance of offence under Sections 25 and 30(3) of
.. ~
the Karnataka Shops and Commercial Establishments Act, 1961 . F
(in short 'the Act') by Metropolitan Magistrate Traffic Court Ill.
(4) In view of the order that we propose to pass, it may not
be necessary to recite the enUre facts leading to the filing of the
present appeal. Suffice it to say that an unfortunate incident had
, • i" occurred on 13th December, 2005 in which late Smt. Pratibha G
Srikant Murthy was stated to have been murdered on her way
to work from her residence. Pursuant to the aforesaid incident .
"" a complaint was filed on 27th December, 2005 against the
appellant alleging violation of Sections 25 and 30(3) of the Act
before the Metropolitan Magistrate. On 30th December, 2005, H
330 SUPREME COURT REPORTS [2008] 2 S.C.R.

A the Metropolitan Magistrate took cognizance of the offences
under aforesaid sections of the Act. On 23rd March, 2006, a
petition under Section 482 of the Code of Criminal Procedure
for quashing of the complaint and cognizance was filed before
the High Court. The High Court, by its impugned order dated ,
B 2ath March, 2006, dismissed the petition. Hence, the present
appeal by special leave.
(5) The High Court, by its impugned order, has altered the
cognizance taken by the Magistrate under Section 25 read with
Section 30(3) to that one under Section 25 read with Section
C 30(1) of the Act. The High Court was of the view that taking
cognizance against the appellant cannot be found fault with and
dismissed the petition.
(6) It is noticed, therefore, that petition under Section 482
D was filed at the threshold for quashing of the cognizance taken
by the Magistrate.
(7) Mr. K. K. Venugopal, learned Senior counsel for the
appellant has addressed us on merits of the case. He would
contend that the appellant is a Managing Director and occupying
E the position of management and, therefore, he would be ~ntitled
for exemption under Section 3(h) of the Act. He would further
contend that the appellant, being Managing Director of the
company, would not be liable for prosecution under Section 25
read with Section 30( 1) of the Act.
F (8) Per contra, Ms Anitha Shenoy, learned counsel
appearing on behalf of the respondent, contended that Chapter
VIII of the Act deals with a penal provision. She would contend
that the language, "Whoever contravenes" employed in Section
30 of the Act would include the Managing Director.
G
(9) At this stage we are not prepared to enter into the merits
of the case on the basis of contentions urged by the respective
counsel. Here are our reasons:
(10) In a catena of decisions this Court has deprecated
H the interference by the High Court in exercise of its inherent ~
SOM MITTAL v. GOVT. OF KARNATAKA 331
[H.K. SEMA, J.]

powers under Section 482 of the Code in a routine manner. It A
has been consistently held that the power under Section 482
must be exercised sparingly, with circumspection and in rarest
of rare cases. Exercise of inherent power under Section 482 of
the Code of Criminal Procedure is not the rule but it is an
exception. The exception is applied only when it is brought to B
the notice of the Court that grave miscarriage of iustice would
be committed if the trial is allowed to proceed where the
accused would be harassed unnecessarily if the trial is allowed
to linger when prima facie it appears to Court that the trial would
likely to be ended in acquittal. In other words, the inherent power c
of the Court under Section 482 of the Code of Criminal
Procedure can be invoked by the High Court either to prevent
abuse of process of any Court or otherwise to secure the ends·
of justice.
(11) This Court, in a catena of decisions, consistently gave D
a note of caution that inherent power of quashing a criminal
proceeding should be exercised very sparingly and with
circumspection and that too in the rarest of rare cases. This
Court also held that the High Court will not be justified in
embarking upon an inquiry as to the reliability or genuineness E
or otherwise of the allegations made in the F. I. R. or the complaint
and that the extra-ordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to its whims
and caprice.

(12) We now refer to a few decisions of this Court F
deprecating the exercise of extra ordinary or inherent powers
by the High Court according to its whims and caprice.
(13) In State of Bihar v. J.A.C. Sa/danha (1980) 1 SCC
554 this Court pointed out at SCC p. 574:
G
"The High Court in exercise of the extraordinary jurisdiction
committed a grave error by making observations on
seriously disputed questions of facts taking its cue from
affidavits which in such a situation would hardly provide
any reliable material. In our opinion the High Court was H
332 SUPREME COURT REPORTS [2008] 2 S.C.R.

A clearly in e.rror in giving the direction virtually amounting to
a mandamus to close the case before the investigation is
complete. We say no more."
(14) In Hazari Lal Gupta v. RameshwarPrasad (1972)
B 1 SCC 452 this Court at SCC p. 455 pointed out:
"In exercising jurisdiction under Section 561-A of the
Criminal Procedure Code, the High Court can quash
proceedings if there is no legal evidence or if there is any
impediment to the institution or continuance of
c proceedings but the High Court does not ordinarily inquire
as to whether the evidence is 'reliable or not'. Where again,
investigation into the circumstances of an alleged
cognizable offence is carried on under the provisions of
the Criminal Procedure Code, the High Court does not
interfere with such investigation because it would then be
D
the impeding investigation and jurisdiction of statutory
auth'orities to exercise power in accordance with the
provisions of the Criminal Procedure Code."
(15) In Jehan Singh v. Delhi Administration (1974) 4
E SCC 522 the application filed by the accused under Section
561-A of the old Code for quashing the investigation was
dismissed as being premature. and incompetent on the finding.
that prima facie, the allegations in the FIR, if assumed to be
correct, constitute a cognizable offence.
F (16) In Kurukshetra University v. State of Haryana
(1977) 4 SCC 451, this Court pointed out:
"It surprises us in the extreme that the High Court thought
that in the exercise of its inherent powers under Section
482 of the Code of Criminal Procedure, it could quash a
G
first information report. The police had not even
commenced investigation into the complaint filed· by the
Warden of the University and no proceeding at all was
pending in any court in pursuance of the flR. It ought to be
realized that inherent powers do not confer an arbitrary
H
SOM MITIAL v. GOVT. OF KARNATAKA 333
[H.K. SEMA, J.]

.... t- jurisdiction on the High Court to act according to Whim or A
caprice. That statutory Qower has to be exercised sparing!~
with circumspection and in the rarest of rare cases."
(emphasis supplied)
(17) In State of Bihar v. Murad Ali Khan (1988) 4 SCC B
655 this Court held that the jurisdiction under Section 482 of the
I> Code has. to be exercised sparingly and with circumspection
"!'
and has given the working that in exercising that juri~diction,
the High Court should not embark upon an enquiry whether the
allegations in the complaint· are likely to be established by c
evidence or not.
(18) In State of Haryana & ors (appellant) v. Bhajan
Lal & ors. (respondents) 1992 Supp. (1) SCC 335, this Court
after referring to various decisions of this Court, enumerated
various cat~gories of cases by way of illustration wherein the D
inherent power und.er Section 482 o·f the Code should be
exercised by the High Court. They are: ·
~~
\ "(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their. face
value and accepted in their entirety do not prima facie E
constitute any offence or make out a case against the
accused.
(2) Where the allegations in the first information report

- ~
and other materials, if any, accompanying the FIR do not .
disclo~e a cognizable offence, justifying an investigation
by police officers under Section 156(1) of the Code except
under an order of a Magistrate within the purview of Section
F

155(2) of the Code.
~
I (3) Where the uncontroverted allegations made in the G
)~
~ FIR or complaint a~d the evidence collected in support of
the same do not disclose the commission of any offence
and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
' H
J
334 SUPREME COURT REPORTS (2008] 2 S.C.R.

A cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
B are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the
accused.

c (6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there is
a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
D
aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
E on the accused and with a view to spite him due to private
I
and personal grudge." 1~

(19) We may observe here that despite this Court's
consistently held in catena of decisions that inherent power of
the High Court should not be exercised according to whims and
F caprice and it has to be exercised sparingly, with circumspection
and in the rarest of rare cases, we often come across the High
Court exercising the inherent power under Section 482 of the
Code of Criminal Procedure in a routine manner at its whims
and caprice setting at naught the cognizance taken and the FIR
G lodged at the threshold committing grave miscarriage of justice.
While it is true that so long as the inherent power of Section 482
is in the Statute Book, exercise of such power is not
impermissible but it must be noted that such power has to be
exercised sparingly with circumspection and in the rarest of rare
H cases, the sole aim of which is to secure the ends of justice.
SOM MITTAL v. GOVT. OF KARNATAKA 335
[H.K. SEMA, J.]

- ; The power under Section 482 is not intended to scuttle justice A
at the threshold.
(20) The rulings cited by Mr. K.K. Venugopal - East India
Commercial Co. Ltd., Calcutta & Anr. \I. The Collector of
Customs, Calcutta 1963 (3) SCR 338; T. Prem Sagar v. The
Standard Vacuum Oil Company Madras & Ors. 1964 (5) 8
SCR 1030; Boothalinga Agencies v. \I. T.C. Poriaswami
~ ). Nadar 1969 (1) SCR 65; and S.M.S. Pharmaceuticals Ltd. \I.
Neeta Bhalla & Anr. (2005) 8 SCC 89 are not applicable in
the facts of this case at this stage in view of our view above.
c
(21) In the result, there is no infirmity in the order passed
by the High Court warranting our interference in exercise of our
power under Article 136 of the Constitution. This appeal is,
accordingly, dismissed.
(22) We clarify that we do not express any opinion on the D
merits of the case. The trial court shall decide the matter
expeditiously uninfluenced by any observations made by this
Court or the High Court. The trial court shall decide the
maintainability of the complaint at the time of consideration of
the charge. We further make it clear that it is open to the parties E
to urge all the contentions as available under the law, including
the maintainability of the complaint before the trial judge at the
time of consideration of this charge.
(23) With these observations and directions, the appeal
is dismissed. F

Markandey Katju, J. 1. I have perused the judgment of
my learned brother Hon'ble H.K. Serna, J. in this appeal.
2. I respectfully agree with his conclusion that the appeal,.
be dismissed but only because of the observations in his G
judgment that we are not expressing any opinion on the merits
of the case. However, I think it is necessary to give my separate
concurrent judgment in this case.

3. The appellant before us, Mr. Som Mittal, is the Managing H
336 SUPREME COURT REPORTS . [2008) 2 S.C.R.

A Director of Hewlett Packard Global Soft Ltd. He filed a petition
under Section. 482, Cr.P.C. before the Karnataka High Court ·
challenging the order dated 30.12.2003 passed by the
Metropolitan Magistrate Traffic Court Ill, Bangalore, taking
cognizance of an offence under Section· 25 of the Karnataka
B Shops and Commercial Establishments Act, 1961 (in short 'the
·Act') read with Section 30(3) of the same and .also the conditions ·
imposed by the Karnataka Government in its order dated
9.2.2005. It may be mentioned that cognizance was taken on a
complaint filed by the respondent through its Senior Labour
c Inspector; 18th Circle, Bangalore.
4. Section 25 as amended by Act No.14 of ~002 reads as
follows:
"25. Prohibition ·Of employment of women and young
persons during night: No woman, or a young person, shall
D
be required or allowed· to work whether as an employee
or otherwise in any establishment during nights.
Provided that the State· Government may; by
notification exempt any establishment of Information
E Technology or Information Technology enabled service from
the provisions of this section relating to, employment of
women during night subject to the condition that the
establishment provides facilities of transportation and
security to such women employees and subject to any
F other condition as may be specified in the notification."
5. It may be noted from the above provision that while the
main part of Section 25 is prohibition of employment of women
and young persons in a shop or -commercial establishment
.during night, the proviso enables the State Government to
G exempt any establishment of Information Technology from the
provisions of the section subject to the condition that the
establishment provides facility for transportation and security
to the woman employees.
6. The Deputy Labour Commissioner;· Region 2,
H
SOM MITIAL v. GOVT. OF KARNATAKA 337
[H.K. SEMA, J.]

...... -.J Bangalore, in. exercise of the power under the proviso to Section A
25 issued an office order in terms of Section 25 read with Rule
24(b) of the Karnataka Shops and Commercial Establishments
Rules 1963 granting exemption. Condition No.2 of the said
Order stated :
"Transport facilities from the residence to workplace and 8
back shall be provided free of cost and with adequate
.... ~
security."
7. It appears that on 13.12.2005 at about 2 a.m. a woman
employee of the Company of which the appellant was Managing c
Director was traveling from her house to the workplace situated
in Electronic City, Bangalore. While on the way the vehicle driver
took the vehicle to a secluded place and raped and killed the
said woman employee. This fact finds reference in the letter of
the Bangalore City Police Commissioner dated 26.12.2005
D
addressed to the Labour Commissioner, and in the said letter it
is stated that adequate security had not been provided to the
--...,.(
said woman employee during her travel from her home to tl:le
workplace. It is on the basis of this letter that the complaint was
filed on the basis of which cognizance was taken by the learned
Magistrate. E

_.. 8. Shri K.K. Venugopal, learned counsel for the appellant,
has invited our attention to Section 3(1 )(h) of the Act which states

"3(1) Nothing in this Act shall apply to - F
,..t_

(h) ·person occupying positions of management in any
establishment."

9. We agree with Shri Venugopal that the Managing
Director is surely a person occupying a position of management G
in 'the establishment and hence Section 3(1)(h) is clearly
~ -(
attracted to the facts of this case.

11!1' 10. However, learned counsel for the State Government
has relied on Section 2(h) of the Act which states :
H
...._
338 SUPREME COURT REPORTS [2008] 2 S.C.R.

A "2(h) "Employer" means a person having charge of or . -
owning or having ultimate control over the affairs of an
establishment and includes members of the family of an
employer, a manager, agent or other person acting in the
general management or control of an establishment;"
B 11. Learned counsel for the respondent submitted that
Section 30(1) of the Act states that "Whoever contravenes any
of the provisions of Sections 4, 5 , 25 and 39, shall, on "' ...
conviction, be punished with fine ...... ". She submitted that the
word "whoever'' in section 30 is broad enough to include the
c Managing Director also.
12. To my mind, there seems to be some apparent conflict
between section 30 and section 3(1 )(h) of the Act since while
the latter provision states that a person in a position of "
management is outside the purview of the Act, it is contended
D
by counsel for the respondent that the former provision includes
a person in management also since the word "whoever'' is very
wide.
13. Since section 30 is also part of the Act, hence prima
E facie it seems that a Managing Director does not come within
the purview of the Act in view of section 3(1 )(h). It prima facie
seems that only persons not in a position of management will
come within the purview...., of the Act, and hence they alone can
-.
be penalized under Section 30. If persons in a position of
F management are also intended to be penalized then that will _J._
require an amendment to the Act, in particular Section 3(1 )(h)
thereof. The Court cannot amend an Act of the legislature, and
cannot fill up a casus omissus.
14. However, I am not expressing any final opinion on the
G merits of the matter, and it is left open for the court concerned to
interpret the various provisions of the Act. )'- -f

15. While I agree with my learned brother, Hon'ble Serna
J. that the power under section ~82 Cr.P.C. is to be exercised l\ijll
sparingly, I cannot agree with my learned brother that it should
H
~--

SOM MITTAL v. GOVT. OF KARNATAKA 339
[H.K. SEMA, J.]
... ~
be exercised in the 'rarest of the rare cases'. A

16. The expression 'rarest of the rare cases' was used in
connection with Section 302 IPC to hold that death penalty should
only be imposed in rarest of rare cases vide Constitution Bench
decision of this Court in Bachan Singh vs. State of Punjab
(vide para 207) AIR 1980 SC 898. In my opinion, this expression B
>- cannot be extended to a petition under Section 482 Cr.PC ..
" Though I agree with my learned brother Hon'ble Serna J. that
the power under Section 482 Cr.P.C. should be used sparingly,
yet there may be occasions where in the interest of justice the
power should be exercised. c
\
17. In this connection, I would also like to refer to the
situation prevailing in the State of Uttar Pradesh where due to
deletion of the provision for anticipatory bail under Section 438
Cr.P.C. by Section 9 of the U.P. Act 16of1976, huge difficulties
D
have been created both for the public as well as for the
Allahabad High Court.
18. It may be noted that in U. P. such provision for
anticipatory bail has been deleted while it continues to exist in
all other States in India, even in terrorist affected States. The E
result is that thousands of petitions under Section 482 are filed
every year in Allahabad High Court praying for stay of arrest or
for quashing the FIR, because in the absence of the provision
of anticipatory bail many persons who are innocent cannot get
... .t. anticipatory bail even though the FIR filed against them may be
frivolous and/or false. Even if such persons get regular bail under
F

Section 439, before that they will have to go to jail, and thus
their reputation in society may be irreparably tarnished.

19. It has been held by this Court in Joginder Kumar vs.
State of U.P. and others AIR 1994 SC 1349 (vide para 24) G
.... --( 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 and 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 H
340 SUPREME COURT REPORTS [2008) 2 S.C.R.

A person can cause incalculable harm to the reputation and self
esteem of a person. No arrest can be made in a routine manner
on a mere allegation of commission of an offence made against
a person. It would be prudent for a Police Officer in the interest
of protection of the constitutional right of a citizen and perhaps
B in his own interest that no arrest should be made without a
reasonable satisfaction reached after some investigation as to
the genuineness and bona tides of a complaint and a reasonable
belief both as to the person's complicity and even so as to the
need to effect arrest. Denying a person of hisJiberty is a serious
c matter. The recommendation of the Police Commissioner merely
reflects the constitutional concomitants of the fundamental right
to personal liberty and freedom. A person is not liable to arrest
merely on the suspicion of complicity in an offence. There must
be a reasonable justification in the opinion of the officer effecting
D the arrest that such arrest is necessary and justified. Except in
heinous offences, an arrest must be avoided. if a police officer
issues notice to a person to attend the Station House and not to
leave Station without permission would do."
20. In para 13 of the same judgment this Court has also
E referred to the Third Report of the National Police Commission
which stated that by and large nearly 60% of the arrests in the
country were unnecessary or unjustified. Also, 43.2 % of the
expenditure iri jails was over such prisoners only who need not
have been arrested at all.
_) ..
F 21. Despite this categorical judgment of the Supreme
Court it appears that the police is not at all implementing it. What
invariably happens is that whenever an FIR of a cognizable
offence is lodged the police immediately goes to arrest the
accused person. This is clear violation of the aforesaid judgment
G of the Supreme Court.
22. It may be noted that Section 2(c) Cr.P.C. defines a
cognizable offence as an offence in which a police officer may
arrest without warrant. Similarly Section. 41 Cr.P.C. states a
H police officer may arrest a person. involved in a cognizable
SOM MITTAL v. GOVT. OF KARNATAKA 341
[H.K. SEMA, J.]

offence. The use of the word 'may' shows that a police officer is A
not bound to arrest even in a case of a cognizable offence. When
he should arrest and when not is clarified in Joginder Kumar's
case (supra).
23. Again in Section 157(1) Cr.P.C. it is mentioned that a
police officer shall investigate a case relating to a cognizable B
A~ ., offence, and if necessary take measures for the arrest of the
offender. This again makes it clear that arrest is not a must in
every case of a cognizable offence.
24. Because of absence of the provision for anticipatory c
bail in U.P. thousands of writ petitions and Section 482 Cr.P.C.
applications are being filed in the Allahabad High Court praying
for stay of the petitioner's arrest and/or quashing the FIR. This
is unnecessarily increasing the work load of the High Court and
adding to the arrears, apart from the hardship to the public, and D
overcrowding in jails.
25. The right to liberty under Article 21 of the Constitution
is a valuable right, and hence should not be lightly interfered
with. It was won by the people of Europe and America after
tremendous historical struggles and sacrifices. One is reminded E
of Charles Dicken's novel 'A Tale of Two Cities' in which Dr.
Manette was incarcerated in the Bastille for-18 years on a mere
lettre de cachet of a French aristocrat, although he was innocent.
26. In Ghani vs. Jones (1970) 1 Q.B. 693 (709) Lord
Denning observed : F
"A man's liberty of movement is regarded so highly by the
Law of England that it is not to be hindered or prevented
except on the surest grounds."
The above observation has been quoted with approval by G
a Constitution Bench decision of this Court in Maneka Gandhi
vs. Union of/ndia AIR 1978 SC 597 (vide para 99).
27~ Despite this clear enunciation of the law many people
are arrested and sent to the jail on the basis of false and/or H
\

342 SUPREME COURT REPORTS [2008] 2 S.C.R.

A frivolous FIRs.
28. In my opinion the problem will be obviated by restoring )
>
the provision for anticipatory bail which was contained in Section
438 Cr.P.C. but was deleted in U.P. by Section 9 of U.P. Act 16.
of 1976. ,I
B
29. It is surprising that the provision for anticipatory bail
has been deleted in U.P although it exists in all other States in
India, even in terrorist affected States. I do not understand why
this provision should not exist in U.P. also.
c 30. As pointed out in Balchand Jain vs. State of Madhya
Pradesh AIR 1977 SC 366, the provision for anticipatory bail
was included in the Cr.P.C. of 1973 in pursuance of the Forty
First Report of the Law Commission which observed:-
"The necessity for granting anticipatory bail arises mainly
D
because sometimes influential persons try to implicate
their rivals in false cases for the purpose of disgracing
them or for other purposes by getting them detained in jail
for some days. In recent times, with the accentuation of
political rivalry, this tendency is showing signs of steady
E
increase. Apart from false cases, where there are
reasonable grounds for holding that a person accused of
an offence is not likely to abscond, or otherwise misuse
his liberty while on bail, there seems no justification to
require him first to submit to custody and remain in prison
F for some days and then apply for bail."
31. Thus the provision for anticipatory bail was introduced
in the Cr.P.C. because it was realized by Parliament in its
wisdom that false and frivolous cases are often filed against
G some persons and such persons have to go to jail because
even if the First Information Report is false and frivolous a person r ~ ..

has to obtain bail, and for that he has to first surrender before
the learned Magistrate, and his bail application is heard only ~
after several days (usually a week or two) after giving notice to :
H the State. During this period the applicant has to go to jail. Hence

•
ti:
SOM MITTAL v. GOVT. OF KARNATAKA 343
[H.K. SEMA, J.]

even if such person subsequently obtains bail his reputation may A
be irreparably tarnished, as held by the Supreme Court in
Joginder Kumar's case (supra). The reputation of a person is
a valuable asset for him just as in law the good will of a firm is
an intangible asset. In Gita Lord Krishna said to Arjun:
8
'tf Ri I fcl ct'fll ~lf{Ol li:~RI RT4d

"For a self-respecting man, death is preferable to
dishonour"
(Gita Chapter 2, Shloka 34)
c
32. No doubt anticipatory bail is not to be granted as a

- matter of course by the Court but only in accordance with the
principles laid down by the Supreme Court in Gurbaksh Singh
vs. State of Punjab AIR 1980 SC 1632. However, we are of ·
the view that there must be a provision for anticipatory bail in 0
U.P. for the reason already mentioned above.
33. Experience has shown that the absence of the provision
for anticipatory bail has been causing great injustice and
hardship to the citizens of U.P. For instance, often false FIRs
are filed e.g. under Section 498A IPC, Section 3/4 Dowry E
Prohibition Act etc. Often aged grandmothers, uncles, aunts,
unmarried sisters etc. are implicated in such cases, even though
they may have nothing to do with the offence. Sometimes
unmarried girls have to go to jail, and this may affect their chances
of marriage. As already observed by me above, this is in violation F
of the decision of this Court in JoginderKumar's case (supra),
and the difficulty can be overcome by restoring the provision for
anticipatory bail.
34. Moreover, the Allahabad High Court is already over-
burdened with heavy arrears and overloaded with work. This G
load is increasing daily due to the absence of the provision for
anticipatory bail. In the absence of such provision whenever an
FIR is filed the accused person files a writ petition or application
under Section 482 Cr.P.C. and this has resulted in an
unmanageable burden on this Court. Also jails in U.P. are H
344 SUPREME COURT REPORTS [2008] 2 S.C.R.

A overcrowded.
35. The Allahabad High Court had on several occasions
requested the State Government to issue an Ordinance
immediately to restore the provision for anticipatory bail, (e.g.
in Vijay Kumar Verma vs. State of U.P., 2002 Cr.L.J. 4561)
B but all its requests seem to have fallen on deaf ears. It seems
that there is an impression in some quarters that if the provision
for anticipatory bail is restored crimes will increase. In my opinion
this is a specious argument, since it has not made much
difference to the crime position in the States where the provision
C for anticipatory bail exists, even in terrorist affected States. No
doubt the recommendation of a Court is not binding on the State
Government/State Legislature but still it should be seriously
considered, and not simply ignored. The Court usually makes a
recommendation when it feels that the public is facing some
D hardship. Such recommendation should, therefore, be given
respect and serious consideration.
36. I, therefore, make a strong recommendation to the UP
Government to immediately issue an Ordinance to restore the
E provision for ar.ticipatory bail by repealing Section 9 of U.P. Act
No. 16of1976, and empowering the Allahabad High Court as
well as the Sessions Courts in U.P. to grant anticipatory bail.
37. In this connection I may also refer to the decision of the
Seven Judge Full Bench of Allahabad High Court in Smt.
F Amarawati and another vs. State of U.P. (2005 Crl. L.J. 755)
in which the Full Bench has mentioned that the Sessions Judge
while considering a bail application under Section 439 Cr.P.C.
can grant interim bail till the final disposal of the bail application
subsequently. This will enable innocent persons to avoid going
r
G to jail pending consideration of their bail application. J~
.; .
.J.
38. I am informed that despite this Seven Judge Full Bench
judgment which has clearly mentioned that a Sessions Judge _)..
can grant interim bail, the Session Courts in U.P. are ignoring ~
'
the said judgment and are not granting interim bail pending ~
H disposal of the final bail application even in appropriate cases. ~
SOM MITTAL v. GOVT. OF KARNATAKA 345
[H.K. SEMA, J.]

This is wholly improper. Decisions of this Court and of the High A
Court must be respected and carried out by the sub-ordinate
courts punctually and faithfully. It is, therefore, directed that
Amarawati's case (supra) must be implemented in letter and
spirit by the Sessions Courts in U.P. and in this connection the
Registrar General of Allahabad High Court will circulate letters 83
to all the District Judges in U.P. along with a copy of this judgment
to ensure faithful compliance of the decision of the Full Bench
decision of the High Court in Amarawati's case (supra).
39. The Secretary General of this Court shall send a copy
of my judgment to the Chief Secretary, Home Secretary and C
Law Secretary of U.P. as well as to the Registrar General of
Allahabad High Court and also to the President/Secretary of
Allahabad Bar Association and the Allahabad High Court
Advocates' Association as well as Oudh Bar Association,
Lucknow forthwith. A copy shal~ also be sent to the Chief 0
Secretary, Home Secretary and Law Secretary of all State
Governments/Union Territories in India who shall direct all
officials to strictly comply with the judgment of this Court in
Joginder Kumar's case (supra).
B.B.B Appeal dismissed. E

/