LexKM. HEMA MISHRA versus STATE OF U.P. AND OTHERS
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[2014] 1 S.C.R. 465 KM. HEMA MISHRA v. STATE OF U.P. AND OTHERS (Criminal Appeal No.146 of 2014) JANUARY 16, 2014 [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.] Code of Criminal Procedure, 1973: A B 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 0 omitted and made inapplicable in the State of U.P. - Still, a 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. B s.438 - Anticipatoty bail - Purpose of - Discussed. 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 &
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