V D SINGH Vs. STATE OF U P

JUDGEMENT

(1.) A writ of certiorari to quash the first information report, dated March 29, 1988 contained in Aryiexure I to the writ petition is sought. The petitioner V. D. Singh is' proprietor/dealer of Petrol and Diesel Pump. The informant, Mukesh Chandra, Sub-Divisional Magistrate Amethi, District Sultanpur, made an inspection of the petitioner's Pump on March 29, 1988 and has indicated in the first information report that on examination of the readings and the cash memos it was found that the petitioner had sold 349 litres bf petrol and 581 litres of diesel oil without issuing cash memos which, constituted an1 offence punishable, under Section 3/7 of the Essential Commodities Act. The short point urged by the petitioner is that the Investigating Officer did not examine the credit memos, Annexures 2 to 9 and 'if he had dona so, no unaccounted sale would have been-found. It is also stated in para 16 that on the very following day, i. e. , pn March 30, 1988 the particulars of credit sale memo, detailed in Annexure 10 were given to the Investigating Officer, and also to the informant by letter dated April 8, 1988 continued in Annexure 11 to the same effect, with a copy endorsed to the Investi gating Officer. It is not disputed that if the petitioner had really made an unaccounted sale he could be considered to have committed an offence punishable under Section 3/7 Essential Commodities Act; but the contention of the learned counsel for the petitioner is that there was no unaccounted sale and the sale under credit memos accounted for the entire stratage questioned by the informant on -March 29, 1988. The learned Assistant Government Advocate contends that on the face of the facts set out in the first information report, the allegations of commission of the offence under Section 3/7 of the Essential Commodities Act is apparent and the genuineness or otherwise of the credit sales is a matter of evidence which may not be gone into by this Court. The learned counsel for the petitioner says that although the existence of the credit memos is patent, and justifies the petitioner's stand, and the credit memos have been brought to the notice of the Investigating Officer and the informant, a fair view of the matter is not being taken by the opposite party. There is an apprehension that the petitioner would be arrested without reasonable cause and his fundamental right of liberty would be violated, hence this Court is competent to interfere. We notice that the question whether or not sale was made on credit, vide memo Annexure 2 to 9, or: they are genuine is a question of fact which is yet to be investigated into. We also realise that the liberty of a person is ensured as a fundamental right by the Constitution of India, and is not to be violated without existence of reasonable cause. Even so, the process of investigation is not to be interfered with unless it is found to be prima facie illegal, mala fide or arbitrary. So long as there is a dispute on a material question of fact, steps in inve stigation cannot be said to fall in these cate gories. The power of a police officer to arrest without warrant under Section 41 (1) (a) Cr. P. C. is an undoubted power where the person sought to be arrested has been con cerned in a cognizable offence, or credible information has been received or a reasonable suspicion exists of his having been so con cerned. Even a telegram may be considered to furnish the requisite credible information (see para 147 of UP. Police (Regulations); but the person so concerned is not to be treated casually where he himself comes forward and puts up a case before the Inve stigating Of finer. Para 107 of the U. P. Police Regulations contains a direction in the follow ing words: "he must remember that it is his duty to find out the truth and not merely to obtain convictions. He must not pre maturely commit himself to any view of the facts for or against any person and though he need not go out of his way to hunt up evidence for the defence in a case in which he has satisfactory grounds for believing that an accused person, is guilty, he must always give accused per sons an opportunity of producing defence evidence before him, and must consider such evidence carefully if produced. " The statement of the accused must be recorded in full (vide Para 109 of UP. Police Regulations ). We are not aware of any provi sion of law that the accused person must necessarily be arrested before his statement is taken or defence is received. Such person may, of course be arrested if he chooses no to make a statement or defence at all provided the police officer has the requisite credible information. It is stated in para 110 of the UP. Police Regulations that the stage at which a suspect may be arrested is at the discretion of the Investigating Officer; but it is apparent from para 156 of the Regu lations that the Investigating Officer or officer-in-charge of the Police Station must consider, with reference to Chapter XXXIII of the Code of Criminal Procedure, whether bail should be allowed. The said para goes on to add. "bail cannot be refused unless there are reasonable grounds for believing that the accused has been guilty of a non-bailable offence, and even in such circumstances the grant of bail by the officer-in-charge of a police station is not prohibited unless the offence is punishable with death or trans portation (now, imprisonment) for life. " Some of these provisions of the UP. Polipe Regulations may not have statutory effect and may be only administrative dire ctions. We need not go into that aspect here; but we do notice that the expectation from a police officer acting in the course of investi gation and proposing to make arrest is that he will act in a reasonable and fair manner and will duly consider the defence, if any, made by. the accused in order to make up his mind as to whether the person sought to be arrested falls within the categories set out in Section 41 of the Code of Criminal Procedure, or oth'er applicable provisions of the law. We are of the opinion that justice would be done if the Investigating Officer or the concerned police authority thoroughly exa mines the stand taken by the petitioner, including the credit sale memos before proceedings to violate the liberty of the petitioner. We do not direct that the petitioner would not be arrested but we think that the guardians of law will observe the rule of law will act fairly and will consider the case set up by the petitioner before arresting the petitioner; at the same time the petitioner will make himself available for the purposes of investi gation to the concerned authorities. The writ petition is disposed of with these observations. Copy of this order may be given to the learned counsel for both the parties within 3 days, if possible, on payment of necessary charges. .