This writ petition is filed under Article 226 of the Constitution of India seeking the following relief:“to issue an appropriate writ, order or direction more particularly one in the nature of Mandamus, directing the respondents and their subordinates not to arrest the petitioner in any crime relating to acquisition of security equipment by the Andhra Pradesh Police or any other related subject”The petitioner is an Indian Police Service Officer. While narrating his excellence in the academic career as well as in service, the petitioner contended that during his tenure as Addl. DGP, Intelligence the then leaders of the opposition party blamed him, as he is responsible for certain political events and made several statements in Press, Public meetings and in Electronic media. The petitioner taken them in his stride, as such accusations are being made routinely. Press clippings, video recordings and screen shots of social media postings are placed on record in support of his contentions to prove the acrimonious statements made against him. On the eve of general elections, they also represented to the Election Commission of India, against the petitioner, seeking his transfer alleging that he was working for the Government viz., political party in power. Though the petitioner has nothing to do with the election process, the Election Commission ordered his transfer. Accordingly, he was transferred and posted as Director General, ACB on 22.04.2019 and continued as such till the new political Government came into power. As there was a change in the political Government, on the very first day the new government was sworn i.e. on 30.05.2019, he was transferred from the post of Director General, ACB and asked to report to General Administration Department (GAD) for posting. Accordingly, he was relieved the very next day and reported to GAD. Thereafter, he was kept without posting and without payment of salary. Having waited for more than seven months, he made representations dated 06.01.2020 and 28.01.2020. But, as a rebuttal to his representations, the State Government issued G.O.Ms.No.18, dated 08.02.2020 placing the petitioner under suspension pending enquiry.The petitioner also explained relevant facts leading to his suspension i.e. to combat left wing extremism and red sanders smuggling, both of which had claimed many lives of police and forest force, with a view to track their activities by use of surveillance equipment, it was thought that the Andhra Pradesh Police shall acquire such technology and hardware with the funds provided by the Central Government for modernization of police force. Pursuant to the request made by the Addl. Director General of Police (Intelligence) dated 14.06.2017, the Director General of Police has constituted a purchase committee and a technical committee for examining the same and also for finalizing the terms and procurement of the equipment. The petitioner was not a party to both the committees. The tender process was entrusted to the State Trading Corporation of India, a Government of India enterprise. When global tenders were invited, the minimum cost of the equipment quoted by the tenderer had far exceeded the budget provided for and hence, the meeting of the purchasing committee was convened. The said meeting was called on 26.06.2018 and the petitioner attended the said meeting since Inspector General of Police deputed him as Inspector General of Police was out of station and as the petitioner was holding additional charge of the said post. In the said meeting chaired by the Chairman of the Purchase Committee and attended by eight IPS officers, it was unanimously decided to scale down the specifications to suit the budget and to refloat the tender. Minutes of the meeting were recorded. Again, pursuant to the scaling down of tenders, tenders were floated by the State 'Trading Corporation of India and purchase order dated 05.10.2018 was issued to the successful bidder by the State Trading Corporation. At that stage, by proceedings dated 24.12.2018, the Director General of Police had cancelled the purchase order issued by the State Trading Corporation for the reasons specified therein. Thus in the entire process, no financial loss was caused, except, the cost of engaging State Trading Corporation (STC) for tender process.The speed with which, the order of suspension was passed demonstrate more than that meets the eye. On 02.02.2020 (being Sunday) respondent No.2, on his own, addressed a letter to Addl. Director General (CID) to investigate and submit a report as regards the procurement of equipment etc. On 03.02.2020, the ADG, CID entrusted the same to a Deputy Superintendent of Police though the DGP, ADGs and IG level officers are involved in the procurement process. The chosen and obligated Dy. Superintendent of Police submitted a report on 06.02.2020 implicated the petitioner as he violated conduct rules. The accusation was that the successful tenderer who was issued a purchase order on 05.10.2018 had business dealings with a company, of which his son is a Director. It is alleged that the participation of the petitioner in the process, constitutes violation of conduct Rules. On 07.02.2020 respondent No.2 forwarded the same to Government and on 08.02.2020 (being second Saturday) the order of suspension was passed, after being approved by the competent authority dealing with All India Service Officers. The petitioner challenged the order of suspension before the Central Administrative Tribunal, Hyderabad, which was dismissed on 17.03.2020. The petitioner challenged the said order before this Court by filing W.P.No.8185 of 2020 and by order dated 22.05.2020, this Court set aside the order of the CAT, also quashed the order of suspension and directed reinstatement of the petitioner with all benefits.The petitioner learnt through news papers, that the State Government had filed Special Leave Petition in the Supreme Court of India, but till date no notice was served on the petitioner.The Anti Corruption Bureau, which was entrusted with further probe continued its' probe/enquiry into the procurement of equipment, role of the petitioner and his son. The petitioner also welcomed the same. In the process of the enquiry/probe, his son was also summoned and his statement was also recorded. At this stage, the petitioner noticed that the enquiry had taken a curious turn. The ACB authorities, with a view to win laurels from the ruling dispensation and who happened to be his junior officers in service and would be the beneficiaries, if the petitioner is made to suffer in service, started enquiry into personal affairs. They misrepresented to the bank authorities, as if they are probing his son and his company affairs and sought for bank account statements. Admittedly, there is no financial angle to the enquiry, that too against his son. The bank authorities without asking for further details, had furnished the bank account statements. Based on the said bank account statements, the ACB sent a questionnaire to his son seeking clarifications, as regards various unconnected transactions. His son sent a reply asking for the authority and clandestine manner of obtaining the documents. They kept silent without any reply, as they knew that they committed wanton wrongs. The ACB had also sent a notice to the petitioner as to the source of money, which he gave to his son’s company on his request and the petitioner gave a reply disclosing the source of income. Further, on conclusion of the investigation, the ACB gave a notice to the petitioner for his response with regard to his violation of conduct rules applicable to his service and the petitioner issued suitable reply to the said notice.Having concluded that the allegations made against the petitioner constitutes violation of the Conduct Rules, the ACB further pursuing the probe, with a view to implicate the petitioner in a criminal case and swoop on him and his son and arrest them. The apprehension of the petitioner is further fortified by the fact that the officers like respondent No.2, ADG (ACB) and ADG (CID) are hell bent to please the political bosses. A recent tweet by the Senior IAS officer and Advisor of the Government who worked in the CMs' Secretariat to the effect that "IAS and IPS officers are working not in public interest, but for those big wigs in the Government” would certainly prove the fact that the police machinery is being used to achieve the goals set by political establishment. The fact of police arresting persons even for social media postings against government policies and political bosses and arrest of the people at midnight, odd hours etc., bring back the days of emergency. The petitioner believe the same to be true that apart from the hatred towards him, as exhibited earlier and the later events such as order of suspension being quashed by the court and the findings of ACB that he violated only the conduct rules etc. had upset the political establishment and it appears that a plan was hatched to somehow file a criminal case against the petitioner, arrest the petitioner and keep in judicial custody for 48 hours, so that irrespective of the result of SLP in the Supreme Court, they would have a separate ground to keep the petitioner under suspension. The petitioner was not given any posting, leave alone respectable posting befitting to his rank, seniority and reputation. The petitioner being a public servant, it is his duty to justify the posting given to him by working honestly, diligently without fear or favour, which is not acceptable to the political establishment, who command personal loyalties by the officers.The petitioner believed that the police department under the command of respondent No.2 is working under duress and threat to act to the dictates and tunes of political establishment.It is further contended that the personal liberty is always treated as a prime right among the fundamental rights guaranteed by the Constitution of India. No person shall be deprived of personal liberty except by a manner established by law. Time and again dealing with the powers of the police to arrest, it was held by the Apex Court, that no arrest can be made just because it is lawful for the police officer to do so. The police officer must be able to justify the arrest apart from his power to do so. But unfortunately by the time, the arrestee is able to demonstrate that there is no justification for arrest, the mischief is carried out. By that time, because of the electronic and social media, incalculable harm is being done to the reputation of the arrestee. If arrestee happens to be public servant, the automatic suspension for being in judicial custody springs in. The Apex Court also held that the power of arrest cannot be resorted to as a routine in all cases, but it can only be resorted to in cases where the offence alleged is heinous in nature. Despite the clear guidelines issued by the Apex Court that the arrest must be avoided and can be resorted to only in extreme cases, it had become a routine affair in practice, thereby violating the right of personal liberty of individual and harm to the reputation of the person. The arrests are being effected in violation of the directions of the Apex Court in “D.K. Basu vs. State of West Bengal (1997 (1) SCC 416)”. Thus, the petitioner apprehending his arrest in the state of affairs narrated above, the respondents are trying to tarnish his image and reputation being a public officer without any ground and to avoid loss of reputation and liberty. Hence, the petitioner approached this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India, requested to issue a direction as stated above.Respondent Nos.1 and 2 filed common counter and one Kumar Vishwajeet, Principal Secretary to Government, Home Department, A.P. Secretariat, Amaravati is the deponent of the counter affidavit.Respondent Nos.1 and 2 denied all the material allegations interalia contending that the nature of relief claimed under Article 226 of the Constitution of India in the present petition is for grant of pre-arrest bail or pre-arrest protection/Anticipatory bail, thereby the writ petition not maintainable as there is statutory remedy under Section 438 of Cr.P.C. for seeking such relief subject to the conditions incorporated therein. The parameters indicated by the Apex Court while considering the grant of relief of anticipatory bail under Section 438 Cr.P.C. Therefore, the writ petition is not maintainable on this sole ground.It is further contended that the relief sought by the writ petitioner restraining the respondent police from arrest of the petitioner with reference to any crime relating to accusation of security equipment by AP Police does not fit into the parameters indicated by the Apex Court in the judgment of the Constitution Bench in “Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565)”. The Apex Court had an occasion to deal with the power of the High Court of Allahabad pertaining to grant of pre-arrest bail in exercise of extraordinary or inherent jurisdiction in the context of the law prevailing in the State of UP on account of exclusion of Section 438 of Cr.P.C. from the statute book by way of State Amendment in the reported judgment in “Hema Mishra v. State of UP (AIR 2014 SC 1066)” and was pleased to hold that the court is to ensure that such a power under Article 226 of Constitution of India is not to be exercised liberally so as to convert it into proceedings under Section 438 Cr.P.C. In “State of Telangana v. Habib Abdullah Jeelani (AIR 2017 SC 373)” the Apex Court by referring to various authoritative pronouncements rendered on the subject was pleased to hold that the States where Sec.438 Cr.P.C. 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 under Sec.482 Cr.P.C. exercise judicial restraint. Therefore, the apprehension of the petitioner cannot be stretched so as to seek a protective layer to use it as a shield against any and all kinds of accusations, likely or unlikely. Therefore, the petition is not maintainable in view of the law declared by the Apex Court in the judgments (referred supra).Respondent Nos.1 and 2 did not controvert the academic excellence in career and service of the petitioner, however they are not relevant for the purpose of deciding the case. The reasons stated by the petitioner for his apprehension of arrest are not true and real.The enquiry undertaken by respondent No.3 bureau relating to the serious allegations of misconduct with reference to the misconduct under the criminal law is within the ambit and power of respondent No.3. If any irregularities are committed while holding the office, the same is required to be dealt with in accordance with law. The misuse of official position and corruption angles are definitely required to be enquired into so as to initiate suitable action either under conduct rules or under the criminal law and the petitioner has no legally sustainable grounds to express his apprehensions about the same and seek a protection even before putting the criminal law into motion. Therefore, the writ petition is liable to be dismissed.Respondent No.3 filed an independent counter and one A.Suresh Babu, Deputy Director (CIU), Anti-Corruption Bureau, A.P., Vijayawada is the deponent.Respondent No.3 denied the allegations made in the petition while admitting about the duties discharged by the petitioner in different capacities in A.P.Police Department and contended that the petitioner is guilty of misconduct during the process of procurement of Aerostat and UAV (Security and Surveillance equipment) through State Trading Corporation of India, Hyderabad for anti-extremist and security operations.As the petitioner is guilty of mis-conduct prima facie, the DGP, Andhra Pradesh ordered the ADGP, CID to conduct an enquiry into the process of procurement of Aerostat and UAV worth Rs.25.50 crores by the Intelligence Department. In compliance of the said orders, the ADGP, CID submitted an enquiry report to the DGP, Andhra Pradesh on 06.02.2020 and that enquiry report was forwarded by the DGP, Andhra Pradesh to the Chief Secretary, Government of Andhra Pradesh on 07.02.2020. On 08.02.2020, the Chief Secretary, Government of Andhra Pradesh vide Government Memo No.I096510/SC.D/2020 dated 08.02.2020 forwarded the aforesaid enquiry report to respondent No.3 Respondent (DG, ACB) to conduct a detailed enquiry into the allegations against the petitioner and to submit report to the Government for taking further action in the matter. While so, on 30.03.2020, respondent No.3 herein sent an interim enquiry report to the Chief Secretary, Government of Andhra Pradesh disclosing that the petitioner had committed serious misconduct in the above subject matter. The enquiry in this matter is still continuing and the final enquiry report will be sent to the Government after the conclusion of the same for taking further action in the matter.It is further contended that the enquiry conducted so far also disclosed that the petitioner committed misconduct by attempting to push through the procurement of UAV and Aerostat for AP Police from M/s.RT Inflatables Objects Limited/ M/s.RT LTA Systems Limited of Israel and pressurized the concerned public servants to achieve the object i.e., Rs.25.50 crores to allot the bid in favour of M/s.RT Inflatables Objects Limited.It is further contended that the petitioner herein took a decision in the subject matter knowing very well that it would not be in public interest and he failed to maintain high ethical standards in allotment of the bid to M/s.RT Inflatables Objects Limited/M/s.RT LTA Systems Limited. The enquiry conducted so far disclosed that despite the fact that Sri Chetan Sai Krishna Aluru @ Sri Chetan Krishna, son of the petitioner herein, has been the Indian representative/agent of M/s. RT Inflatables Objects Limited/ M/s.RT LTA Systems Limited of Israel. The petitioner misused his position as a civil servant in order to derive the benefit in favour of his son (Mr.Chetan Sai Krishna Aluru @ Sri Chetan Krishna) through such procurement and he failed to declare the aforesaid private interest (that his son has been the Indian epresentative/ agent of M/s.RT Inflatables) related to the public duty.It is further contended that that after submitting the bid by M/s RT Inflatable Objects Limited, Israel, the bid was allotted in their favour on 10.9.2018. The total cost of equipment of Rs.25.50 crores was transferred to STCIL in October 2018 and purchase order was placed. Only one member from purchase committee Sri B.Srinivasulu, IPS, IGP, SIB and one member from Technical committee Sri Mahesh Chandra Laddha, IPS, IGP, had witnessed the live demo of the Aerostat or DAV. But later, the said purchase order was scrapped because of irregularities observed during the procurement process. With great difficulty, the AP Police Department able to get back the amount due from STCIL in this regard.It is further contended that after issuing the proceedings vide No.2371H2/2017, dated 24.12.2018 by the Director General of Police of AP (respondent No.2) cancelling the purchase order, the petitioner has sent letter dated 28.03.2019 to the then DGP in response to the decision taken for cancellation of purchase order and he further requested to review the cancellation of the purchase order or at least, to reinitiate the entire process immediately by the office of the DGP to urgently procure the required items mentioned in the cancelled purchase order after following the due procedure as deemed fit. The petitioner herein, in his official capacity, put his efforts to renew the cancellation of purchaser order in order to benefit M/s RT Inflatable Objects Limited, Israel where his son was acting as the Indian Representative/Agent.It is further contended that the petitioner misused his position as civil servant in order to derive the benefit for his son through such procurement and the petitioner also failed to declare the aforesaid private interest, while discharging public duty. Hence, the contention of the petitioner that there is no financial angle to the enquiry, that too against his son is not correct.It is further contended that the relief sought for by the petitioner cannot be granted at preliminary stage as there cannot be a blanket order of not to arrest whatsoever in any other proceedings. Writ of mandamus on mere apprehension is not maintainable since there is no violation of fundamental or statutory rights as contended by the petitioner. On several occasions Apex court held that the power under Article 226 of the Constitution of India has to be exercised cautiously. Finally, respondent No.3 requested to dismiss the petition.Sri B.Adinarayana Rao, learned Senior Counsel appearing on behalf of Sri Madhava Rao Nalluri, learned counsel for the petitioner, mainly contended that in the guise of enquiry by ACB against the petitioner, the respondents are contemplating to arrest the petitioner though no material is available only with a view to harass him, that too the petitioner worked as Additional DGP, Intelligence, which is almost higher rank in the State and worked as intelligence chief of the State. If any arrest is affected, it would cause serious prejudice against his career and it would amount to infringement of right guaranteed under Article 21 of the Constitution of India. He referred the judgment of the Apex Court in “Jeeja Ghosh v. Union of India (2016) 7 SCC 761)” and “D.K. Basu vs. State of West Bengal” (referred supra). On the strength of the law laid down in the said judgments, he requested to issue a direction as stated supra.Sir S.Sri Ram, learned Advocate General for the State, vehemently contended that as on date no criminal proceedings are initiated against the petitioner and the State is bound to follow the procedure contemplated under Code of Criminal Procedure in the event of initiation of criminal prosecution against the petitioner and agreed to follow the procedure prescribed under law in the event of initiation of criminal prosecution against the petitioner as the petitioner allegedly committed serious irregularities in purchase of security equipment. Therefore, the enquiry pending before the authorities concerned is fact finding enquiry or in the nature of preliminary enquiry and based on the said enquiry, the Government is not going arrest the petitioner except when criminal law is set into motion against the petitioner in the event of preliminary enquiry disclosed any incriminating material against the petitioner, requested to dismiss the petition.No doubt, the petitioner is worked as Additional DGP, Intelligence, but he was placed under suspension, despite setting aside the order of suspension directing to reinstate the petitioner with all consequential benefits by order of this Court in W.P.No.8185 of 2020, setting aside the order passed by the CAT, on the ground that Special Leave Petition is preferred before the Apex Court against the order passed by this Court in W.P.No.8185 of 2020. However, this Court is unconcerned with the action being taken by the State with regard to his suspension and reinstatement as the jurisdiction of this Court is limited in the present writ petition.The petitioner also highlighted his excellence in his academic career and he discharged his duties as public servant at different places including Bosnia. But the same is not relevant for the purpose of deciding the injury to the reputation of the petitioner being a police official in the highest rank in the State.Undoubtedly, the petitioner worked as Additional DGP, Intelligence Department, Andhra Pradesh, during the regime of Nara Chandrababu Naidu, Ex-chief Minister of state of Andhra Pradesh; the petitioner has direct contract with the then Chief Minister as alleged in the affidavit filed along with the petition. Normally, the Chief of Intelligence Department would brief the Chief Minister and other Ministers, with whom he has direct contact as to what is and what was going on in the State, and sometimes, he may carry some information about the political rivals also. Certainly, that would cause displeasure to the opposite political parties in the State. When a political party, which was in opposition during the regime of this petitioner, they make take advantage of their power when they came into power and start investigation etc. It appears that this is one such incident since an allegation was made against him during quinquennial elections for the State Assembly and he was transferred by the Election Commission of India from the office of Intelligence Chief of the State. Of course, that was challenged, but the State failed to succeed in the attempt at that time before this Court.The main contention of the petitioner is that the present political party in power, which was in opposition during the regime of the petitioner, wanted to take revenge against him and foisted this case, but that may not be a ground to grant relief in the present petition. However, the participation of the petitioner in the process of procurement of security equipment is not in dispute. However, the purchase order was cancelled by the Government itself. He also did not deny the business being carried on by his son and he is also facing enquiry by the ACB official. The main endeavour of the petitioner is that no financial loss was caused on account of his participation in the process of procurement, except to the extent of tender process fee. Therefore, at best, the participation of the petitioner in the process of procurement without disclosing his personal interest of his family members may amount to misconduct and not criminal misconduct prima facie. In fact, in view of the direction issued by the State, Deputy Director, CIU, ACB, A.P., Vijayawada issued notice C.No.29/RE-CIU-ACB/2020, dated 19.06.2020 to the petitioner, and explanation was called for from the petitioner within 10 days from the date of said notice, wherein it is stated as follows:“Thus the enquiry conducted so far proved that you have violated the following Rules of All India Services (Conduct) Rules, 1968 as amended from time to time.3. (2B) Every member of the Service shall:-(v) shall declare any private interests related to public duties.(vii) not misuse his position as civil servant and not take decisions in order to derive financial or material benefits for himself, his family or his friends.”The petitioner did not submit any explanation and addressed a letter to the Deputy Director, CIU, ACB, Andhra Pradesh stating that the Deputy Director, CIU, ACB, Andhra Pradesh has no jurisdiction to deal with violation of All India Services (Conduct) Rules, 1968, and therefore no explanation need be given by him. Thereafter, notice dated 25.06.2020 in Ref.No.29/RE-CIU-ACB/2020 was issued to the petitioner by the Deputy Director, CIU, ACB, Andhra Pradesh, for violation of Rule 16 (4) of All India Service (Conduct) Rules, 1968. The petitioner issued a reply to the notice dated 25.06.2020 stated as follows:“This is in reply to your notice dated 25.06.2020.During the year 2017, I received compensation of Rs.29,76,298/- under the LA Act for acquisition of my land to the extent of 1213 Sq.yards in Madhurapudi (v), Korukonda (m), East Godavari District vide proceedings in Ref.A/2631/2015-114 dated 23.08.2017 issued by Sub Collector, Rajamahendravaram, East Godavari District.The same was intimated to the Government through proper channel vide a letter dated 26.12.2017, a copy of which is enclosed herewith.Since the money was lying in the account and at the request of my son, I, by way of accommodation, had transferred money to his company account. The same is in the nature of cash adjustment and is not a transaction that need to be kept in the knowledge of the government. Even otherwise, the transaction would be complete after money is returned and hence not intimated to the government as under Rule 16 (4), I am obligated to inform the government within a month of completion of transaction.Hard copy of original letter dated 26.12.2017 and Government’s letter of having recorded the same would be sent to you in a few days because they are not readily available since it is an old matter.”Thus, as per the material available on record, as on today, the enquiry so far conducted disclosed violation of All India Services (Conduct) Rules by the petitioner as referred above, but no enquiry was conducted in the angle of criminal misconduct.According to Section 17A of the Prevention of Corruption Act, 1988 (for short “the P.C.Act”) no police officer shall conduct any enquiry or inquiry or investigation into any offence alleged to have been committed by a public servant under this Act, where the alleged offence is relatable to any recommendation made or decision taken by such public servant in discharge of his official functions or duties, without the previous approval—(a) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of the Union, of that Government;(b) in the case of a person who is or was employed, at the time when the offence was alleged to have been committed, in connection with the affairs of a State, of that Government;(c) in the case of any other person, of the authority competent to remove him from his office, at the time when the offence was alleged to have been committed:Provided that no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any undue advantage for himself or for any other person:Provided further that the concerned authority shall convey its decision under this section within a period of three months, which may, for reasons to be recorded in writing by such authority, be extended by a further period of one month.As such, the enquiry, if any, shall be conducted against any public servant only when the offences relatable to recommendations made or decision taken by public servant in discharge of official functions or duties with the permission of the State or Central Government as contained under Section 17-A of the P.C.Act.The Government appears to have issued a direction in terms of clause (b) of Section 17A of the P.C.Act. Therefore, the enquiry/inquiry would have conducted by Deputy Director, CIU, ACB, Andhra Pradesh appears to be within the ambit of Section 17A of the P.C.Act. But nothing was unearthed by the enquiry officer except violation of conduct rules as stated above. Therefore, the petitioner cannot be arrested based on such report for violation of conduct rules, at best, it may constitute misconduct within the meaning of All India Services (Conduct) Rules. The enquiry against the officer for violation of conduct rules has to be conducted by a different authority and not by the Deputy Director, CIU, ACB. But, for the reasons best known to the Deputy Director, CIU, ACB, he issued show-cause notice to the petitioner to submit explanation along with the material for the alleged violation of conduct rules referred above. Though, he is incompetent to conduct enquiry in terms of All India Services (Conduct) Rules, 1968.The main Endeavour of the learned counsel for the petitioner Sri B. Adinarayana Rao is that in the process of preliminary enquiry as contemplated under section 17A of the P.C. Act they may take any incessant and invidious decision and set the criminal law into motion without any material so as to arrest the petitioner which may cause serious injury to his reputation and liberty. Therefore, to avoid such contingency and to protect the liberty and reputation of the petitioner, he requested this court to issue a direction as claimed in the petition.Article 21 of the Constitution of India deals with fundamental right to life and personal liberty. According to Article 21 of the Constitution of India, no person shall be deprived of his life or personal liberty except according to procedure established by law. Arrest of a person on initiation of criminal prosecution for setting the criminal law into motion would fall within the exception enumerated under article 21 of the Constitution of India. The object of Article 21 of the Constitution of India is to prevent encroachment upon personal liberty by the executive save in accordance with the law, and in conformity with the provisions thereof. Before a person is deprived of his life or personal liberty the procedure established by law must be strictly followed and must not be deported from to the disadvantage of the person (Vide: Makhan Singh Pataka v. State of Punjab (AIR 1952 SC 27) and “Narayan Jung Singh v. State of Punjab (AIR 1952 SC 106).The words 'except according to procedure established by law' uggest that Article 21 of the Constitution of India does not apply where a person is detained by a private individual and not by or under authority of the state. At the same time, enjoyment of a quality life by the people is the essence of the guaranteed right under Article 21 of the Constitution of India as held by the Apex Court in “Hinch Lal Tiwari v. Kamla Devi (2001) 6 SCC 496)”.Article 21 of the Constitution of India does not refer only to the necessity to comply with the procedural requirements, but also to substantive rights of a citizen. It aims at preventive measures as well as payment of compensation in case human rights of a citizen or violated. Article 21 of the Constitution of India provides for a safeguard in such a manner directing that FIR should be sent to the concerned Court within a period of 24 hours. Right to life, enshrined in Article 21 of the Constitution of India means something more than survival or animal existence (Vide: State of Maharashtra v. Chandrabhan (AIR 1983 SC 803”). It would include the right to live with human dignity (Vide: Francis Coralie Mullin v. Union Territory of Delhi, Administrator (AIR 1981 SC 746). It would include all those aspects of life which go to make a man's life meaningful, complete and worth living. That which alone can make it possible to live must be declared to be an integral component of the right to live. The right to life guaranteed under Article 21 of the Constitution of India embraces within its sweep not only physical existence but the quality of life. If any statutory provision runs counter to such a right, it must be held to be unconstitutional and ultra vires the part III of the Constitution of India(Vide: Confederation of Ex-servicemen Associations v. Union of India (2006) 8 SCC 399).Therefore, the word 'life' used in Article 21 of the Constitution of India would include all that gives meaning to a man's life i.e. his tradition, culture, heritage and protection of that heritage in its full measure.The Apex Court further enlarged the meaning of life under Article 21 of the Constitution of India, held that right to reputation is a facet of the right to life of a citizen under Article 21 of the constitution. In case any authority, in the discharge of its duties fastened upon it under the law, traverses into the realm of personal reputation adversely affecting him, it must provide a chance to him to have his say in the matter. In such circumstances, right of an individual to have a safeguard of the principles of natural justice before being adversely commented upon by a Commission of Inquiry, is statutorily recognised and violation of the same will have to bear the scrutiny of Judicial review. (Vide: State of Bihar v. Lal Krishna Advani (2003) 8 SCC 361).In view of the law declared by the Apex Court right to reputation is also a part of fundamental right guaranteed under Article 21 of the Constitution of India and in case the petitioner is arrested being the top police official, certainly, it will cause damage to his reputation being police official. Petitioner being a top most police official of the state is expected to enjoy decency and dignity, and it is basic right of male or female and they shall be treated with proper dignity.'Personal Liberty' in Article 21 of the Constitution of India primarily means freedom from physical restraint of person by incarceration or otherwise. Roping in criminal prosecution such persons who are otherwise not intended to be prosecuted or dealt with by the Criminal Court, would amount to the violation of fundamental right of personal liberty as enshrined under Article 21 of the Constitution of India (Vide: J.K. (Bombay) v. Bharti Matha Mishra (2001) 2 SCC700).It also includes all the varieties of rights which go to make up a man's personal Liberties other than those which are already included in the several clauses of Article 19 of the Constitution of India. Where a false criminal case was got registered by a nonexistent person in consequence of which a non-bailable warrant of arrest was obtained, the Supreme Court directed the Director of the CBI to nominate a senior officer to investigate into the matter and to file his report within two months. (Vide: Uma Shankar Sitani v. Commissioner of Police, Delhi (1996) 11 SCC 714).The expression 'personal liberty' includes the right of locomotion, except in so far as it is included in Article 19 (1) (d) of the Constitution of India, the right to travel abroad i.e. to move out of India, and to return to India, the right to socialize with members of one's family and friends, the right of a prisoner to a speedy trial. The concept of right to life and personal liberty as per Article 21 of the Constitution of India would include right to live with dignity and enjoy personal liberty. Taking advantage of fundamental right guaranteed under Article 21 of the Constitution of India learned senior counsel for the petitioner Sri B.Adinarayana Rao submitted that in the event of arrest of the petitioner without any material by setting the criminal law into motion, it would cause incalculable loss to the reputation to the person and liberty of the petitioner. No doubt, in view of the law declared by the Apex Court in various judgments referred supra, the petitioner is highly placed police officer in the state is entitled to treatment with decency and dignity, right to live with dignity and personal liberty.Right to life is also inclusive of right to privacy. In “Kharak Singh v. State of U.P. (AIR 1963 SC 1295)” the Apex Court clearly held that domiciliary visit by the Police without the authority of a law, was held to be violative of Article 21 of the Constitution of India, assuming that a right of privacy was a fundamental right derived from the freedom of movement guaranteed by Article 19 (1) (d), as well as personal liberty guaranteed by Article 21 of the Constitution of India. The right to privacy deals with “persons and not places”. Such right though not absolute, but such right of an individual has to be protected by the State. Even wire-taping of voluntary conversation, for the purpose of investigation of crime, has been upheld by the Apex Court in “Malkani, R.M. v. State of Maharashtra (AIR 1973 SC 157)” assuming that privacy of conversation would be derived from ‘personal liberty’ under Article 21 of the Constitution of India.Even in the recent judgment in “Justice K.S. Puttaswamy v. Union of India (2019) 1 SCC 1)” the Apex Court highlighted the right of privacy.The arrest of the petitioner, if any, in connection with the above enquiry without any material to establish prima facie that he committed an offence either under I.P.C. or under the P.C.Act would directly infringe the right of life and personal liberty guaranteed under Article 21 of the Constitution of India.Turning to the human rights point of view, Article 3 of Universal Declaration of Human Rights deals with right to life, liberty and security of persons. Article 5 further deals with prohibition against torture, inhuman or degrading treatment or punishment, whereas Article 12 prevents arbitrary interference with right to privacy, family, home and correspondence in order to protect his honour and reputation.Article 6 of the International Covenant on Civil and Political Rights deals with the right to life. According to it, every human being has right to life. Similarly, Article 7 deals with freedom from inhuman or degrading treatment. Article 9 says that everyone has right to liberty and security and no one shall be subjected to arbitrary arrest and detention, no one shall be deprived of his liberty except on such grounds and in accordance with the procedure as established by law. Article 17 deals with right to privacy, family, home or correspondence.Thus, India being a State party to the covenants (referred above) is under obligation to protect such human rights of every citizen of India. But the instrumentalities of the State are more interested in violation of such rights, rather than its implementation either noticingly or unnoticingly. Therefore, the petitioner being a citizen of India is not only entitled to protect his life and liberty, but also human rights guaranteed under Universal declaration of Human Rights and International Covenant on Civil and Political Rights.In “Joginder Kumar v. State of U.P. (1994 Cri. L.J. 1981)”, the Apex Court held 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. 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 lockup of 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 rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest.Learned counsel for respondent Nos.3 and 4 contended that the relief claimed in the petition is in the nature of anticipatory bail, since there is a provision in Cr.P.C. the Court cannot exercise power under Article 226 of the Constitution of India to issue such direction, which is akin to the power of grant of pre-arrest bail and relied on “Hema Mishra v. State of U.P.” (referred supra). In the said judgment, the Apex Court while dealing with similar situation as Section 438 of Cr.P.C. was not in force in the State of Uttar Pradesh, considered the scope of power of the police to arrest. The Apex Court while referring to the judgments in “Satya Pal v. State of U.P. (2000 Cri.L.J. 569)”, “Ajeet Singh v. State of U.P. (2007 Cri.L.J. 170)”, “Lalji Yadav v. State of U.P. (1998 Cri.L.J. 2366)”, “Kamlesh Singh v. State of U.P. (1997 Cri.L.J. 2705)” and “Natho Mal v. State of U.P. (1994 Cri.L.J. 1919)” held as follows:“We have, therefore, no concept of "anticipatory bail" as understood in Section 438 of the Code in the State of Uttar Pradesh. In Balchand Jain v. State of M.P. (1976) 4 SCC 572)”, this Court observed that "anticipatory bail" is a misnomer. Bail, by itself, cannot be claimed as a matter of right under the Code of Criminal Procedure, 1973, except for bailable offences (Section 436 Code of Criminal Procedure, 1973). For non-bailable offences, conditions are prescribed under Sections 437 and 439 Code of Criminal Procedure The discretion to grant bail in non-bailable offences remains with the Court and hence, it cannot be claimed as a matter of right, but the aggrieved party can only seek a remedy and it is on the discretion of the Court to grant it or not. In this connection reference may also be made to the judgment of the seven- Judge Bench of the Allahabad High Court in “Smt. Amarawati v. State of U.P. (2005) Cri.L.J. 755)”, wherein the Court, while interpreting the provisions of Sections 41, 2(c) and 157(1) Code of Criminal Procedure as well as the scope of Sections 437 and 439, held as follows:In view of the above we answer the questions referred to the Full Bench as follows:(1) Even if cognizable offence is disclosed, in the FIR or complaint the arrest of the accused is not a must, rather the police officer should be guided by the decision of the Supreme Court in Joginder Kumar v. State of U.P. (referred supra) before deciding whether to make an arrest or not.(2) The High Court should ordinarily not direct any Subordinate Court to decide the bail application the same day, as that would be interfering with the judicial discretion of the Court hearing the bail application. However, as stated above, when the bail application is under Section 437 Code of Criminal Procedure ordinarily the Magistrate should himself decide the bail application on the same day, and if he decides in a rare and exceptional case not to decide it on the same day, he must record his reasons in writing. As regards the application under Section 439 Code of Criminal Procedure it is in the discretion of the learned Sessions Judge considering the facts and circumstances whether to decide the bail application the same day or not, and it is also in his discretion to grant interim bail the same day subject to the final decision on the bail application later.(3) The decision in “Dr. Vinod Narain v. State of U.P (1996(94) ALJ 628).” is incorrect and is substituted accordingly by this judgment.”In “State of Telangana v. Habib Abdullah Jeelani” (referred supra) the Apex Court found fault with the order passed by the High Court of Andhra Pradesh at Hyderabad in a petition filed under Section 482 of Cr.P.C. as it is in the nature of pre-arrest bail. In the said judgment, the Apex Court after reviewing the law declared by it in earlier judgments i.e. “Hema Mishra v. State of UP” (referred supra) and “Gurbaksh Singh Sibbia v. State of Punjab” (referred supra) concluded that when the Court found that there are no grounds to quash the proceedings, the Court cannot pass order not to arrest the petitioners.There is no quarrel about the law declared by the Apex Court as contended by the learned counsel for respondent Nos.3 and 4. However, arbitrary arrest of a person, without any ground for prosecution, is a matter of serious concern.Even the Apex Court in “Kartar Singh v. State of Punjab (1994) 3 SCC 569)” made serious observations about using police power to deprive personal liberty.Keeping in view the law declared by the Apex Court and other Courts (referred supra), considering arbitrary arrest of a citizen, the Apex Court in “D.K. Basu vs. State of West Bengal” (referred supra) laid down certain guidelines to protect the right of a citizen, which are as follows:“(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by atleast one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well.(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaqa Magistrate for his record.(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.”Thus, it is the duty of the Constitutional Courts to protect the fundamental rights guaranteed under the Constitution of India to a citizen of the Country. In view of the law declared by the Apex Court in “D.K. Basu vs. State of West Bengal” and “Joginder Kumar v. State of U.P.” (referred supra), it is the duty of the police to follow the guidelines laid down in the said judgments and record their satisfaction that there are grounds to believe that the petitioner committed offence, otherwise police cannot arrest the petitioner merely because it is lawful to do so, since such police power cannot be used to guillotine the fundamental rights or human rights of a citizen of a India. If any incessant or invidious arrest is affected in a bellicose state, such arrest would not only infringe or invade the fundamental right of a citizen guaranteed under Constitution of India, so also human rights of a citizen of the country being the State party to covenants referred above.I am sure that the police will take steps to implement the directions issued in “D.K. Basu vs. State of West Bengal” and “Joginder Kumar v. State of U.P.” (referred supra) in letter and spirit, otherwise it will lead to serious consequences.As contended by the learned counsel for respondent Nos.3 and 4 that the nature of relief claimed by the petitioner is akin to pre-arrest bail under Section 438 of Cr.P.C. and in the writ petition, exercising power of judicial review under Article 226 of the Constitution of India this Court cannot grant pre-arrest bail to any person.In “Parvinderjit Singh v. State (U.T.Chandigarh) (2008) 13 SCC 431)” the Apex Court while deciding an application under Section 438 of Cr.P.C. for grant of pre-arrest bail held that an interim order restraining arrest of a person charged with a cognizable offence, if passed while dealing with an application under Section 438 of Cr.P.C., will amount to interference in the investigation. Thus, in view of the law declared by the Apex Court in the above judgment, even in a petition filed for grant of pre-arrest bail, the Court cannot grant interim order restraining arrest of the accused.In view of the law declared by the Apex Court in various judgments (referred supra), this Court cannot exercise power to grant relief claimed by the petitioner, which is in the nature of prearrest bail.Sri B.Adinarayana Rao, learned senior counsel appearing for the petitioner mainly contended that the constitutional value of human dignity has a central normative role and such human dignity cannot be infringed, placed reliance on “Jeeja Ghosh v. Union of India” (referred supra). In the said judgment, the Apex Court held as follows:“We should, therefore, keep in mind that CAR instructions have also been issued keeping in view the spirit of human dignity enshrined in Article 21 and the right that are to be ensured to such persons. The underlying message in all these provisions is the acknowledgment that human rights are individual and have a definite linkage to human development, both sharing common vision and with a common purpose. Respect for human rights is the root for human development and realisation of full potential of each individual, which in turn leads to the augmentation of human resources with progress of the nation. Empowerment of the people through human development is the aim of human rights.In international human rights law, equality is founded upon two complementary principles: non-discrimination and reasonable differentiation. The principle of non-discrimination seeks to ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination occurs due to arbitrary denial of opportunities for equal participation. For example, when public facilities and services are set on standards out of the reach of persons with disabilities, it leads to exclusion and denial of rights. Equality not only implies preventing discrimination (example, the protection of individuals against unfavourable treatment by introducing antidiscrimination laws), but goes beyond in remedying discrimination against groups suffering systematic discrimination in society. In concrete terms, it means embracing the notion of positive rights, affirmative action and reasonable accommodation. The move from the patronising and paternalistic approach to persons with disabilities represented by the medical model to viewing them as members of the community with equal rights has also been reflected in the evolution of international standards relating specifically to disabilities, as well as in moves to place the rights of persons with disabilities within the category of universal human rights. (See - Report of United Nations Consultative Expert Group Meeting on International Norms and Standards Relating to Disability 10-2-2001).”In “Kishore Samrite v. State of U.P. (2013) 2 SCC 398)” the Apex Court held as follows:“The person seeking equity must do equity. It is not just the clean hands, but also clean mind, clean heart and clean objective that are the equi-fundamentals of judicious litigation. The legal maxim jure naturae aequum est neminem cum alterius detrimento et injuria fieri locupletiorem, which means that it is a law of nature that one should not be enriched by the loss or injury to another, is the percept for Courts. Wide jurisdiction of the court should not become a source of abuse of the process of law by the disgruntled litigant. Careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose the true facts and approach the court with clean hands.”Even if the principles laid down by the Apex Court in “Jeeja Ghosh v. Union of India” and “Kishore Samrite v. State of U.P.” (referred supra), relied on by the learned senior counsel for the petitioner, are accepted,
Please Login To View The Full Judgment!
not only the fundamental right guaranteed under the Constitution of India but also the human rights enumerated in the covenant are to be protected by the State, more particularly, arbitrary arrest of any citizen without any material is invidious exercise of power. This contention of the learned senior counsel for the petitioner is not refuted by the respondents. However, learned Advocate General for the State fairly conceded that the criminal law is not set into motion till date and the State is ready to follow the procedure laid down Code of Criminal Procedure during investigation. Therefore, on the basis of the enquiry report of ACB, the State is not going to arrest the petitioner in connection with any crime since the criminal law is not set into motion as on date.In view of the law declared by the Apex Court in the judgments (referred supra), I am fully in agreement with the contention of the learned counsel for the petitioner as illegal arrest without any material will infringe the fundamental right guaranteed under Article 21 of the Constitution of India and also human rights guaranteed to a citizen of the Country. But at the same time, as on date, no criminal law is set into motion and if the petitioner has any apprehension about his arrest, he may approach the competent Court under Section 438 of Cr.P.C.Taking into consideration of nature of allegations and the plea of the petitioner that there is no financial involvement and no loss is caused to the State on account of his attendance to the meeting except tender processing cost. If State concludes that there is reasonable ground to believe that the petitioner committed any cognizable offence punishable with imprisonment for less than 7 years, the State is bound to follow the guidelines issued by the Apex Court in “Arnesh Kumar v. State of Bihar (2014) 8 SCC 273)”.In the recent past, one instance is noticed, where similar relief claimed by the petitioner is granted by different High Courts.The Punjab and Haryana High Court on 08.09.2020 dismissed the petition filed by former Punjab DGP, Sumedh Singh Saini to quash the criminal case registered against him in Mohali regarding the disappearance of Balwant Singh Multani, observing that there is no substance in the said petition and remarked that Saini, then a DGP, had shown “such scant regard for the law, and has not only seriously undermined the Fundamental rights of a citizen but gone to the extent of eliminating a precious human life in a manner which is beyond retribution.”On the same day i.e. on 08.09.2020 the Punjab and Haryana High Court also dismissed the anticipatory bail application filed under Section 438 of Cr.P.C. by Sumedh Singh Saini in the three-decade-old Multani Kidnapping and murder case.However, the Apex Court on 15.09.2020 in a petition for Special Leave to Appeal (Criminal) No.4336 of 2020 granted interim protection from arrest subject to his cooperation with the investigation and ordered to list the case after four weeks.The Punjab and Haryana High Court in “Sumedh Singh Saini v. State of Punjab” (CRM-23578-2020 in CRM-M-45242-2018) on 23.09.2020 while referring to the order passed by the Apex Court in Special Leave to Appeal (Criminal). No.4336 of 2020, issued the following order.“Notice in the application.Learned State Counsel has accepted notice on behalf of respondents No.1-State and seeks time to file reply to the application.Adjourned to 08.10.2020.Notice to respondent No.2 be issued for that date and notice be also given dasti, if so desired.To be shown in the urgent list.Till then the protection order dated 11.10.2018 passed by this Court is extended to any incident pertaining to the entire service career of the applicant/petitioner except the incident subject matter of case FIR No.77 dated 06.05.2020 registered under Sections 364, 201, 344, 330, 219, 120-B of the Indian Penal Code, 1860 at Police Station City Mataur, District S.A.S. Nagar (Mohali) to which Section 302 of the IPC was added lateron regarding which SLP No.4336 of 2020 titled Sumedh Singh Saini Vs. State of Punjab is pending before Hon'ble Supreme Court. In case the applicant/petitioner is sought to be arrested in any case pertaining to any incident during entire service of the petitioner, other than the incident subject matter of abovesaid FIR No.77 dated 06.05.2020, then one week's advance notice shall be given to the petitioner before effecting his arrest so as to enable him to have recourse to remedies available to him in accordance with law.”The said judgment of High Court of Punjab and Haryana is not a binding precedent, but it has persuasive value. However, in case of registration of any crime against the petitioner and if the State contemplates to arrest the petitioner in connection with any crime, he may take advantage of the said interim order passed by the High Court of Punjab and Haryana in “Sumedh Singh Saini v. State of Punjab” (CRM-23578-2020 in CRM-M-45242-2018) and the Hon’ble Apex Court. At this stage, this Court cannot issue such direction as no criminal law is set into motion against the petitioner. If really, the petitioner has apprehension of his arrest in connection with any cognizable or non-bailable offence, he may approach the competent Court under Section 438 of Cr.P.C. and seek appropriate order, but by exercising power under Article 226 of the Constitution of India, this Court cannot issue such direction.In view of my foregoing discussion, I find no merit in the contentions of the learned counsel for the petitioner. Consequently, the writ petition is liable to be dismissed.In the result, the writ petition is dismissed. However, the State is directed to follow the guidelines formulated by the Apex Court in “Arnesh Kumar v. State of Bihar” (referred supra). It is needless to mention that the Apex Court made it clear that violation of guidelines laid down in “Arnesh Kumar v. State of Bihar” (referred supra) amounts to Contempt of Court being filed in jurisdictional High Court. However, this order will not preclude the petitioner to approach the competent Court as per the procedure prescribed under law, at appropriate time. No costs.The miscellaneous petitions pending, if any, shall also stand closed.