Paragraph numbers below are the court’s original numbering, recovered from the source text.
17. In Ranjit Singh v. State of Madhya Pradesh and Ors. 21 the High Court had directed that considering the nature of the allegation and the evidence collected in the case-diary, the petitioner shall surrender before the competent court and shall apply for regular bail and the same shall be considered upon furnishingnecessary bail bond. The said order was challenged before this Court. The two-Judge Bench was constrained to observe:- "lt is the duty of the superior courts to follow the command of the statutory provisions and be guided by the precedents and issue directions which are permissible in law. We are of the convinced opinion that the observations made by the learned Single Judge while dealing with second application under Section 438 CrPC were not at all warranted under any circumstance as it was neither in consonance with the language employed in Section 438 CrPC nor in accord with the established principles of law relating to grant of anticipatory bail. We may reiterate that the said order has been interpreted by this Comt as an order only issuing a direction to the accused to surrender, but as we find, it has really created colossal dilemma in the mind of the learned Additional Sessions Judge. We are pained to say that passing of these kind of orders has become quite frequent and the sagacious saying, "a stitch in time saves nine" may be an apposite reminder now. We painfully part with the case by saying so."
18. At this juncture, \\le are obliged to refer to the decision in Heilia Mishra v. State of Uttar Pradesh and Ors. 22 • In the said "(2006) 13 sec 737 '"(2006) 1 sec 479 21 (2013) 16 sec 191 22 (2014) 4 sec 453 c c judgment, the Court was dealing with the power of the High Court of Allahabad pertaining to grant of pre-arrest bail in exercise of extraordinary or inherent jurisdiction and it is significant, for in the State ofUttar Pradesh Section 438 CrPC has been deleted by the State Legislature. Be it noted that constitutional validity of the said deletion was challenged before the Constitution Bench in Kartar Singft v. State of Punjab'-' wherein it has been held that deletion of the application of Section 438 CrPC in the State of Uttar Pradesh is constitutional. The Constitution Bench has ruled held that claim for pre-arrest protection is neither a statutory nor a right guaranteed under Article 14, Article 19 or Article 21 of the Constitution oflndia. The larger Bench has further observed thus:- "368. (17)-Though it cannot be said that the High Court has no jurisdiction to entertain an application for bail under Article 226 of the Constitution and pass orders either way, relating to the cases under the 1987 Act, 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 Courts should refrain from exercising the extraordinary jurisdiction in such matters."
19. The Allahabad High Court has taken similar view in several judgments, namely, Satya Pal v. State of U.P. 14, Ajeet Singh v. State of U.P. 15, Lalji Ytulav v. State of U.P. 16, Kamlesh Singh v. State of U.P. 17 and Natho Mal v. State of U.P.".
20. In Hema Misl1ra (supra) the Court referred to the decision in Amarawati v. State of U.P. 19 which has been affirmed by this Court in Lal Kamlendra Pratap Singh v. State of U.P.·'". In Lal Kamlemlra Pratap Singh (supra) it has been held thus:- "6. The learned counsel for the appellant apprehends that the appellant will be arrested as there is no provision for anticipatory bail in the State of U .P. He placed reliance on a decision of the "(1994) 3 sec 569 "2000 Cri .LJ 569 (All) "2007 ~riLJ 170 (All) "' 1998 Cri LJ 2366 (All) 27 1997 Cri LJ 2705 (All) '"1994CriLJ 1919(All) "2005 Cri LJ 755 (All) '" r2009) 4 sec 431 THE STATE OF TELANGANA v. HABIB ABDULLAH JEELANI & ORS. [DIPAK MISRA, J.] Allahabad High Court in Amarawati v. State of U.P. (supra) 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 bail pending final disposal of the bail application. The Full Bench also observed that arrest is not a must whenever an FIR of a "c'6gnizable offence is lodged. The Full Beµch placed reliance on the decision of this Court in Joginder Kumar v. State of U.P. 31 .,
21. After referring to the same, Radhakrishnan, J. opined thus:- "! 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 the vastness of the powers naturally impose considerable responsibility in its application.All the same, the High Co1,1rt has got the power and sometimes c!uty in appropriate cases to grant reliefs, though it is not possible to pinpoint what are the appropriate cases, which have to be left to the wisdom of the Court exercising powers under Article 226 of the Constitution of India."
22. Sikri,J. in his concurring opinion stated thatthough the High Courts have very wide powers under Article 226, the very vastness of the 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. It has been further observed that such a power has to be exercised very ·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. The powers are, therefore, to be exercised to prevent miscarriage of justice and to prevent abuse of process oflaw by the authorities indiscriminately making pre-airest of the accused persons. In entertaining such a petition under Artie.le 226, the High Court is supposed to balance the two interests. On the one hand, the .Court is to ensure that such a power under Article 226 is not to be exercised liberally so as to convert it into Section 438 CrPC "(1994) 4 sec 260 c c [2017] I S.C.R. proceedings, keeping in mind that when this provision is specifically omitted in the State ofUttar Pradesh, it cannot be resorted to_ as back door entry via Article 226. On the other hand, wherever the High Court finds that in a given case ifthe 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 of its power under Article 226 of the Constitution. Keeping in mind that this power has to be exercised sparingly in those cases where it is absolutely warranted and justified.
23. We have referred to the authority in Hema Mishra (supra) as that specifically deals with the case that came from the State ofUttar Pradesh where Section 438 CrPC has been deleted. It has concurred with the view expressed in Lal Kamlendra Pratap Sinf(lt (supra). The said decision, needless to say, has to be read in the context of State of Uttar Pradesh. We do not intend to elaborate the said principle as that is not necessary in this case. What needs to be stated here is that the States where Section 438 CrPC has not been deleted and kept on the statute book, the High Court should be well advised that while entertaining petitions under Article 226 of the Constitution or Section 482 CrPC, exercise judicial restraint. We may hasten to clarify that the Court, if it thinks fit, regard being had to the parameters of quashing and the self- restraint imposed by law, has the jurisdiction to quash the investigation and may pass appropriate interim orders as thought apposite in law, but it is absolutely inconceivable and unthinkable to pass an order of the present nature while declining to interfere or expressing opinion that it is not appropriate to stay the investigation. This kind of order is really inappropriate and unseemly. It has no sanction in law. The Courts should oust and obstruct unscrupulous .litigants from invokin_g the inherent jurisdiction of the Court on the drop of a hat to file an application for quashing oflaunching an FIR or investigation and then seek relief by an interim order. It is the obligation of the court to keep such unprincipled and unethical litigants at bay.
24. It has come to the notice of the Court that- in certain cases, the High Coutts, while dismissing the application under Section 482 CrPC are passing orders that if the accused-petitioner surrenders before the trial magistrate, he shall be admitted to bail on such terms and conditions as deemed fit and appropriate to be imposed by the concerned Magistrate. Sometimes it is noticed that in a case where sessions trial is warranted, THE STATE OF TELANGANA v. HABIB ABDULLAH JEELANI & ORS. [DIPAK MISRA, J.] directions are issued that on surrendering before the concerned trial judge, the accused shall be enlarged on bail. Such directions would not commend acceptance in light of the ratio in Rashmi Reklw Tlwtoi (supra), Gurbakslt Singh Sibbkt"(supra), etc., for they neither come within the sweep of Article 226 of the Constitution oflndia nor Section· 482 CrPC nor Section 438 CrPC. This Court in Ranjit Singh (supra) had observed that the sagacious saying "a stitch in time saves nine" may be an apposite reminder and this Court also painfully so stated.
25. Having reminded the same, presently we can only say that the types of orders like the present one, are totally unsustainable, for it is contrary to the aforesaid settled principles and judicial precedents. It is intellectual truancy to avoid the precedents and issue directions which are not in consonance with law. It is the duty of a Judge to sustain the judicial balance and not to think of an order which can cause trauma to the process of adjudication. It should be borne in mind that the culture ofadjudication is stabilized when intellectual discipline is maintained and further when such discipline constantly keeps guard on the mind.
26. In view of the aforesaid premises, we allow the appeal, set aside the impugned order of the High Court and direct that the investigation shall proceed in accordance with law. Be it clarified that we have not expressed anything on any of the aspects alieged in the · First Information Report. Ankit Gyan Appeal allowed. c