On August 25, 2021, Additional Chief Secretary, Home, UP government, Awanish Kumar Awasthi, assured the Allahabad High Court that the police will not take arbitrary action in matters related to traders, and the state government would soon issue a guideline in this matter.
He gave this assurance after the High Court pointed out that it was regularly coming across cases where the police was arbitrarily registering FIRs under Section 420 (cheating) of the IPC against traders and businessmen in commercial matters.
On August 24, the Court had directed Awasthi and sub-inspector Kedar Singh of Nadi village to be personally present on August 25 to showcause why orders adverse to them may not be passed and why exemplary cost may not be imposed. It further directed Awasthi to submit a policy of ease of doing business in the state.
The bench of Justices Surya Prakash Kesarwani and Piyush Agrawal was hearing a petition filed by one Vishal Gupta for quashing an FIR dated February 20, 2021, registered under Sections 420 and 188 IPC and Section 63 of the Copyright Act under the police station in Nadi Gaon, district Jalaun. He further sought directions to the respondents to not adopt any coercive measure against the petitioners.
The petition stated that the petitioner was engaged in supply of goods in the market. As per allegations in the FIR, the petitioner was carrying eight bundles of betelnut and tobacco. On being asked by the sub-inspector, the petitioner could not show valid papers relating to transportation of betelnut and tobacco and so an FIR was registered under Sections 420/188 IPC and Section 63 of the Copyright Act, 1957.
During the hearing of the petition on August 13, the High Court observed that any person who deceives another person and induces him to deliver any property to any person or intentionally induces the person so deceived to do or omit anything which he would not do or omit if he were not so deceived has cheated him. “That apart, the basic requirement of presence of two persons is also absent. Since the alleged act does not prima facie fall within the meaning of word ‘cheating’, consequently no case is made out under Section 420 I.P.C. on bare reading of the impugned first information report. Section 188 I.P.C. relates to disobedience of the order promulgated by a public servant. There is no allegation in the impugned first information report that the petitioner has disobeyed the order promulgated by a public servant. Thus, prima facie from bare reading of the impugned first information report no offence is made out under Section 420/188 I.P.C,” the Court observed.
Considering the facts and circumstances of the case, as an interim measure, the Court provided that till the next date is fixed, the petitioner shall not be arrested pursuant to the FIR and a counter affidavit be filed by the superintendent of police, Jalaun. The affidavit should showcause that in the event the FIR is found to be malicious and there is abuse of power, then why exemplary cost may not be imposed on the sub-inspector and recovered from his personal assets.
Later on August 18, a counter affidavit was filed by the SP of Jalaun. The Court said: “The controversy involved in the present writ petition is extremely serious and if we dismiss the present writ petition on the contention of learned AGA that charge sheet has been forwarded then it would amount to recognise gross illegal, unauthorized and unconstitutional actions of the respondents on the one hand and on the other hand, it may cause a havoc in the State of Uttar Pradesh enabling the police authorities to interfere without authority of law with the movement of goods in ordinary course of business. It would also amount to permit the respondents to usurp the power of authorities under the CGST Act/IGST Act/UP GST Act. Such gross illegal actions, if permitted to stand, may adversely affect the trade and commerce.” The Court further sought a personal affidavit from Awasthi.
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On August 24, a personal affidavit of Awasthi and Ravi Kumar, SP, Jalaun, was filed. While considering it, the bench said: “Despite our repeated orders, the respondents are not able to show their authority to interfere with the movement of goods in the normal course of business. They have also not been able to show the commission of any cognisable offence under Indian Penal Code or under any other criminal law as well as their authority to register the impugned FIR with respect to the goods in question.”
It said that despite detailed orders given, the attitude of the authorities to protect unconstitutional, arbitrary and illegal proceedings had not changed. The power of administrative and ministerial authorities to order detentions is highly controversial, and some experts believe it should be abolished. But this form of detention is not outlawed by international law.
Article 5(1)(d)-(f) of the European Convention authorises categories of detention which are largely identical to those enumerated by the Human Rights Committee. However, they may not necessarily be imposed by administrative authorities, but may instead fall within the competence of ordinary courts of law. Article 5(4) of the European Convention also provides important judicial guarantees with regard to all deprivations of liberty. The same holds true with regard to Article 7(6) of the American Convention on Human Rights.
—By Shivam Sharma and India Legal News Service