STATE OF U.P. AND ORS Vs. SUBHASH CHANDRA JAISWAL AND ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 11381 of 2016, Judgment Date: Nov 29, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11381OF 2016
(Arising out of S.L.P.(C) No.26961 of 2016)
State of Uttar Pradesh and Others Appellants
Versus
Subhash Chandra Jaiswal and Others Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. Ordinarily we would have been loath to entertain an appeal by special
leave challenging the interim order, but we are compelled to do so in the
instant case. There is a singular reason for the same since the High Court
has travelled much beyond the lis to issue directions which, we are
disposed to think, it could not have.
3. The factual matrix as unfolded is that the District Magistrate,
Allahabad and Raibareli granted excise licence to run country liquor shops
under U.P. Excise (Settlement of Licenses Retail Sale of Country Liquor)
Rules, 2002, license for foreign liquor under U.P. Excise Settlement of
Licenses for Retail Sale of Foreign Liquor (excluding Beer and Wine) Rules,
2001 and license for model shop under U.P. Excise (Settlement of Licenses
for Retail License for Model Shop of Foreign Liquor) Rules, 2003. One of
the eligibility conditions for grant of license is that licensee and his
family members must possess good moral character and have no criminal
background. As the facts would uncurtain, an FIR dated 6.2.2016 was lodged
by the respondent No. 1 which gave rise to Crime No. 0049 of 2016 under
Sections 419, 420, 467, 468, 471 IPC at Police Station George Town,
District Allahabad. It was alleged in the FIR that Vinod Kumar Tripathi and
his wife Asha Tripathi, respondent nos. 2 and 3 respectively had committed
fraud and forgery by opening bank account in the name of the respondent
no.1 by affixing his photograph, submitting his ID and had withdrawn amount
by forging his signature and deposited the security amount with District
Excise Officer, Allahabad. The endeavour was to highlight that the said
respondents had the criminal antecedents.
4. A writ petition was filed under Article 226 of the Constitution for
issue of a writ, order or direction in the nature of mandamus commanding
the competent authorities to take necessary action against the opposite
party Nos. 7 and 8 as they had violated various rules.
5. The High Court called for the case diary which showed that a final
report had been submitted by the Investigating Officer on 23.04.2016 in the
office of the Circle Officer, Colonelganj, Allahabad and observed that no
attempt had been made by the investigating officer to find out whether the
signatures alleged to have been made by the respondent no.1 for the purpose
of opening the account were actually made by him or not. The Court also
took note of the stand of the bank and observed that if signatures are
forged and the informant-respondent no.1 was not present at the time of
opening of the account, role of bank officials would also be dubious,
suspicious and they may become co-accused.
6. After so observing, the High Court adverted to the methods of
investigation and expressed the view that no attempt was made by the
investigating officer to find out the genuineness of signature from the
hand-writing expert despite the fact that the informant-respondent no.1 had
categorically challenged the signatures and no satisfactory reply was given
by him. The High Court called upon the Senior Superintendent of Police,
Allahabad and District Magistrate, Allahabad, who are in charge of criminal
administration to explain the obtaining scenario. The SSP, Allahabad,
appeared before the High Court and stated that there had been serious
lapses by the investigating officer since appropriate and necessary steps
were not taken in the matter of investigation. The SSP further stated that
though some training was given to the Sub-Inspectors and Inspectors to
conduct investigation, yet most of the time, the said officers remained
busy carrying on other duties which resulted in getting less time for
investigation purposes. It was also stated by him that in Allahabad
district about 250 officers were conducting investigation for more than
11000 offences registered.
7. Noting the statement of the SSP, the High Court observed that it
depicts a very sorry state of affairs of maintenance of law and order in
the State and paints a grim picture in which State is functioning, ignoring
one of the most important aspects of administration, i.e., public safety,
security and maintenance of law and order. It referred to the order dated
14.10.2011 passed in Writ-C No. 40344 of 2011 titled Raj Prakash v. State
of U.P. and others, reproduced few passages from it and thereafter stated
thus:-
“13. Police force is meant for protection of people. It’s sole aim and
purpose is to maintain law and order by preventing crime and if committed,
to find out and book guilty person so as to get them punished in accordance
with law. There is no other agency in the State except Police who has this
statutory as well as constitutional obligation for protection of people.
But unfortunately, it is still living in colonial State of affairs when
Police used to be deployed against public to crush their genuine rights and
demands. Police, at that time, reflected glorified image of ruling
Colonial State. It treated inhabitants of this country as slaves and that
is why always tried not to allow them to raise their voice against Empire.
For more than half a century, India has attained it’s independence and now
is governed by the Constitution, given by the people to itself so as to
function, “for the people”, “by the people”, “of the people” principle but
Police has not mend it’s ways.
14. Today people are frightened more with police than criminals. There
is virtually a lack of confidence with this Uniformed Force. Judicial
cognizance can be taken of several heinous crimes being committed almost
daily and many a times with the nexus of politicians/criminals whereby
common and innocent people are being made target. Criminality on the part
of police is highly dangerous being a double edged weapon. When they
commit crime, they are themselves being investigating agency, naively cover
up the matter. The result is that the courts of law, ultimately,
ordinarily fail to punish guilty, for want of proper evidence for which the
agency is responsible”.
8. The Court further proceeded to reproduce para 20 of the order in PIL
No. 33084 of 2014 decided on 11th July, 2014 and other writ petitions and
observed thus:-
“18. Laxity, incapacity, inefficiency or lack of knowledge, awareness or
competence in making investigation on the part of Investigating Officers,
who are appointed by State, without ensuring their basic qualifications,
whether they meet requirement of job or not, is another major reason for
superficial and shallow investigation which is aggravating crimes.
Criminals are not deterred due to lack of effective policing on all
aspects. The real burden is placed on judiciary when offenders, who have
committed the crime in broad daylight and in presence of several persons,
walk out free due to serious lapses on the part of investigating
authorities and for their failure in collecting crucial evidence. Most of
the time, crime scene is not taken care so as to prevent contamination of
evidence and by the time one realises, it is too late in the day and
becomes very difficult to collect credible evidence, sufficient to book
culprit for the offence he has committed.
19. Situation is further worsened for want of effective forensic
investigation inasmuch as facilities for forensic test and investigation
are almost negligible in the State. We are told that there are only two
forensic labs in Agra and Lucknow. Population of this State is now more
than 20 crores and number of crimes registered every year is in lacs. The
facts are self-speaking to show that there is no serious attempt, will and
intention on the part of Executive to provide competent investigating staff
and effective supporting mechanism including forensic test facilities and
this, ultimately, causes serious dent in either bringing a culprit to court
or to prosecute successfully. Infrastructure, staff and other requisite
facilities for forensic investigation available at district level is not a
luxury but in the present scenario, it is a necessity.”
9. The High Court, as the impugned order reflects, proceeded to issue
certain directions. They are reproduced below:-
“In our view, time has come where State should be asked to show its real
sincerity required in the field not only for effective registration of
cognizable offences but also proper and well studied investigation and
effective prosecution to ensure appropriate punishment to guilty persons.
Since, even District level Officers, we find, are not competent enough to
take appropriate steps in this regard and nothing can be done unless top
authorities take steps, we direct Principal Secretary (Home), U.P., Lucknow
and Director General of Police, U.P., Lucknow to consider over following
aspects and submit their reply through personal affidavits, by 16th
September, 2016:-
(i) Work of investigation of crime and prosecution be separated from normal
policing or prevention of crime and other works, by constituting separate
specialized cadre managed by officials well trained in respective fields.
These officials be given due status, designation and appropriate perks and
facilities so that State may attract deserving, talented and meritorious
persons, willing to work with all sincerity in respective wings. Both these
wings be separately headed by independent officers of the level of Director
General so that one wing may not get influenced by another.
(ii) The prosecution wing after separation, should be headed by an Officer
of Secretary level, taken on deputation from Higher Judicial Services, so
that it may function independently and effectively.
(iii) Whether sanctioned strength of police for maintaining law and order
and normal police functions including prevention of crime, investigation
and prosecution is sufficient? If not, what is actual requirement for the
said purposes and why required number of posts were/are not created by
Government so that problem of law and order in State is effectively
managed?
(iv) What is actual number of sanctioned strength in the respective fields
of Police Department and what is normal period of time taken for filling
existing vacancies?
(v) Whether any existing qualification or specific eligibility conditions
are prescribed for appointing Investigating Officer? If not, why such
conditions should not be prescribed considering the fact that in these
days, investigation process involves multifaceted scientific, technical and
advanced techniques requiring an efficient and well conversant person to
deal with all such techniques etc.
(vi) How many cases are pending for investigation in the State, older than
six months, and what is the actual number of Investigating Officers
available. These figures shall be supplied in the form of a chart, district-
wise.
(vii) Why Forensic Labs with modern equipments and sufficient staff be not
established at every District Headquarters. State should also provide
adequate staff looking to the size of District, general trend, number of
criminal cases reported every year and nature of cases, normally reported
in that area and maintain it regularly so that Investigating Officers may
be able to get Forensic test/ opinion/ report with the utmost
expeditiousness and as early as possible.
(viii) A report shall be submitted to this Court obtained from each and
every Autopsy Centre as to what facilities are available thereat, how many
Postmortem/ Autopsy they are conducting every day and show preservation of
body organs etc. is being maintained. (The officers submitting report shall
bear in mind that veracity of report, whatever is submitted, may got cross-
checked by Court through Judicial Officers and, therefore, there should be
no attempt to submit a casual and shallow report but it should be true and
complete report in all respect.)
In case affidavits, as above, are not filed by date mentioned above,
the two Officers namely, Principal Secretary (Home), U.P., Lucknow and
Director General of Police, U.P., Lucknow shall appear before this Court on
next date.”
10. On a perusal of the aforesaid directions, we have no trace of doubt
in our mind that the High Court in a case of the present nature could not
have issued such directions. In fact, as we perceive, some of the
directions are in the field of exclusive domain of the Legislature. It is
submitted by Mr. Ravi Prakash Mehrotra, learned counsel for the appellants
that for giving effect to certain directions, provisions of the Indian
Penal Code and the Code of Criminal Procedure are required to be amended.
It is also urged by him that Union of India was not a party before the High
Court and hence, directions could not have been thought of. He has also
drawn our attention to certain State amendments.
11. Having noted the aforesaid submissions, it is necessary to state that
it is expected that the High Courts while dealing with the lis are expected
to focus on the process of adjudication and decide the matter. The concept,
what is thought of or experienced cannot be ingrained or engrafted into an
order solely because such a thought has struck the adjudicator. It must
flow from the factual base and based on law. To elaborate, there cannot be
general comments on the investigation or for that matter, issuance of host
of directions for constituting separate specialized cadre managed by
officials or to require an affidavit to be filed whether sanctioned
strength of police is adequate or not to maintain law and order or
involvement of judicial officers or directions in the like manner. To say
the least, some of the directions issued are not permissible and all of
them are totally unrelated to the case before the High Court. We are
constrained to say that the High Court should have been well advised to
restrict the adjudicatory process that pertained to the controversy that
was before it.
12. In this context, we may refer to refer certain authorities in the
field. In Subrata Roy Sahara v. Union of India and others[1] it has been
held that a Judge is to decide every dispute, in consonance with law. One
is not free to decide in consonance with his will, but must decide in
accord with law. It has been further held that the concept of a Judge being
an individual possessing power and authority, is but a delusion.
13. In Gurdev Kaur and others v. Kaki and others[2] it has been observed
thus:-
“Judges must administer law according to the provisions of law. It is the
bounden duty of judges to discern legislative intention in the process of
adjudication. Justice administered according to individual’s whim, desire,
inclination and notion of justice would lead to confusion, disorder and
chaos.”
14. In Census Commissioner and others v. R. Krishnamurthy[3] the three-
Judge Bench was compelled to observe as follows:-
“No adjudicator or a Judge can conceive the idea that the sky is the limit
or for that matter there is no barrier or fetters in one’s individual
perception, for judicial vision should not be allowed to be imprisoned and
have the potentiality to cover celestial zones. Be it ingeminated, refrain
and restrain are the essential virtues in the arena of adjudication because
they guard as sentinel so that virtuousness is constantly sustained. Not
for nothing, centuries back Francis Bacon[4] had to say thus:
“Judges ought to be more learned than witty, more reverend than plausible,
and more advised than confident. Above all things, integrity is their
portion and proper virtue. … Let the Judges also remember that Solomon’s
throne was supported by lions on both sides: let them be lions, but yet
lions under the throne.”
15. In the said case, a passage from Frankfurter, J.[5] was reproduced
which we think it apt to quote:-
“For the highest exercise of judicial duty is to subordinate one’s private
personal pulls and one’s private views to the law of which we are all
guardians—those impersonal convictions that make a society a civilised
community, and not the victims of personal rule.”
16. We have referred to the aforesaid authorities to sound a note of
caution as sometimes one comes across certain orders where directions are
issued which do not directly arise from the case. In the instant case, as
we notice, the controversy was absolutely different but the High Court has
generalised it and issued the directions.
17. A Judge should not perceive a situation in a generalised manner. He
ought not to wear a pair of spectacles so that he can see what he intends
to see. There has to be a set of facts to express an opinion and that too,
within the parameters of law.
18. In this regard, another aspect needs to be noted. We have already
stated that some of the directions are in the nature of legislation or
policy. In Union of India and another v. Deoki Nandan Aggarwal[6] a three-
Judge Bench has observed that the power to legislate has not been conferred
on the courts and, therefore, the court cannot add words to a statute or
read words into it which are not there. 19. In Vemareddy Kumaraswamy
Reddy and another v. State of A.P.[7] the Court observed that the judges
should not proclaim that they are playing the role of a law-maker merely
for an exhibition of judicial valour. They have to remember that there is a
line, though thin, which separates adjudication from legislation. That line
should not be crossed or erased.
20. In this context, we may fruitfully refer to the authority in Suresh
Seth v. Commr., Indore Municipal Corporation and others[8] wherein it has
been held that the Court cannot issue any direction to the legislature to
make any particular kind of enactment because under the constitutional
scheme, Parliament and Legislative Assemblies exercise sovereign power to
enact laws and no outside power or authority can issue a direction to enact
a particular piece of legislation. In Supreme Court Employees’ Welfare
Association v. Union of India and another[9] it has been ruled that no
court can direct a legislature to enact a particular law. Similarly, when
an executive authority exercises a legislative power by way of a
subordinate legislation pursuant to the delegated authority of a
legislature, such executive authority cannot be asked to enact a law which
it has been empowered to do under the delegated legislative authority.
This view has been reiterated in State of Jammu & Kashmir v. A.R. Zakki and
others[10].
21. In this regard, the following passage from the authority in Manoj
Sharma v. State[11], would be relevant:-
“The doctrine of judicial restraint which has been emphasised repeatedly by
this Court e.g. in Aravali Golf Club v. Chander Hass[12] and State of A.P.
v. P. Laxmi Devi[13] restricts the power of the Court and does not permit
the Court to ordinarily encroach into the legislative or executive domain.
As observed by this Court in the above decisions, there is a broad
separation of powers in the Constitution and it would not be proper for one
organ of the State to encroach into the domain of another organ.”
22. In State of U.P. v. Mahindra and Mahindra Ltd.[14], the Court
observed:-
“Within our Constitution, we have specifically demarcated the ambit of
power and the boundaries of the three organs of the society by laying down
the principles of separation of powers, which is being adhered to for
carrying out democratic functioning of the country. So far as the
legislation is concerned, the exclusive domain is with the legislature.
Subordinate legislations are framed by the executive by exercising the
delegated power conferred by the statute, which is the rule-making power.
The judiciary has been vested with the power to interpret the aforesaid
legislations and to give effect to them since the parameters of the
jurisdiction of both the organs are earmarked. Therefore, it is always
appropriate for each of the organs to function within its domain.”
23. Some of the directions, as we perceive, are in the sphere of policy.
A court cannot take steps for framing a policy. As is evincible, the
directions issued by the High Court and the queries made by it related to
various spheres which, we are constrained to think, the High Court should
not have gone into. It had a very limited lis before it. Be it stated, the
directions may definitely show some anxiety on the part of the learned
Judges, but it is to be remembered that directions are not issued solely
out of concern. They have to be founded on certain legally justifiable
principles that have roots in the laws of the country. In this regard, we
may fruitfully refer to the following passage from State of Uttar Pradesh
and others v. Anil Kumar Sharma and another[15]:-
“17. Quoting the observations in respect of policy-making by Lawton, L.J.
in Laker Airways[16] A.S. Anand, C.J., as he then was, reiterated the
principle that the “role of the Judge is that of a referee. I can blow my
judicial whistle when the ball goes out of play; but when the game restarts
I must neither take part in it nor tell the players how to play”. Anand,
C.J. added:
“The judicial whistle needs to be blown for a purpose and with caution. It
needs to be remembered that court cannot run the Government. It has the
duty of implementing the constitutional safeguards that protect individual
rights but they cannot push back the limits of the Constitution to
accommodate the challenged violation.”
24. Be it noted, the said case also arose from the High Court of
Allahabad where sweeping directions were issued. Thus anlaysed, we are of
the convinced opinion that the High Court has crossed the boundaries of the
controversy that was before it. The courts are required to exercise the
power of judicial review regard being had to the controversy before it.
There may be a laudable object in the mind but it must flow from the facts
before it or there has to be a specific litigation before it. Additionally,
the High Court should have reminded itself that it cannot enter into the
domain where amendment to legislations and other regulations are necessary.
We are absolutely conscious that it is the duty of the State Government to
discharge its obligations in the matters relating to law and order and
remain alert to the issues that emerge. It has a duty also to see that the
investigations are speedily completed in an appropriate manner. If there is
a failure of law and order situation, the executive is to be blamed. In
the maintenance of law and order situation the judicial officers are not to
be involved. But the executive has to remain absolutely alive to its
duties and we are sure, the State Government shall look into the aspects
and endeavour to see that appropriate steps are taken to maintain the law
and order situation.
25. A few words by way of clarification. Though we have not appreciated
the opinion expressed and the directions issued by the High Court as the
opinions are general in nature and directions fall in the legislative
domain and some of them are beyond the scope of the litigation, yet we have
observed certain aspects in the preceding paragraph. Our observations made
hereinabove are words of caution for the State and we are sure that the
State shall remain alive to its obligations.
26. Resultantly, the appeal is allowed and the impugned order passed by
the High Court is set aside. The High Court is requested to fix a fresh
date and dispose of the writ petition in accordance with law.
......................J.
(Dipak Misra)
......................J.
(Amitava Roy)
New Delhi ;
November 29, 2016
-----------------------
[1] (2014) 8 SCC 470
[2] (2007) 1 SCC 546
[3] (2015) 2 SCC 796
[4] Bacon, “Essays: Of Judicature in I The Works of Francis Bacon”
(Montague, Basil, Esq ed., Philadelphia: A Hart, late Carey & Hart, 1852),
pp. 58-59.
[5] Frankfurter, Felix in Clark, Tom C., “Mr Justice Frankfurter: ‘A
Heritage for all Who Love the Law’”, 51 ABAJ 330, p. 332 (1965)
[6] 1992 Supp (1) SCC 323
[7] (2006) 2 SCC 670
[8] (2005) 13 SCC 287
[9] (1989) 4 SCC 187
[10] 1992 Supp (1) SCC 548
[11] (2008) 16 SCC 1
[12] (2008) 1 SCC 683
[13] (2008) 4 SCC 720
[14] (2011) 13 SCC 77
[15] (2015) 6 SCC 716
[16] Laker Airways Ltd. v. Deptt. of Trade, 1977 QB 643 : (1977) 2 WLR
234 : (1977) 2 All ER 182 (CA)
For the Latest Updates
Join Now